COURT FILE NO.: CV-20-32
DATE: October 29, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FOXGATE DEVELOPMENTS INC.
Plaintiff (Applicant)
P. DeMelo, Counsel for the Plaintiff
- and -
JANE DOE, JOHN DOE, SKYLER WILLIAMS or any agent or person acting under their instructions, and other persons unknown, and THE CORPORATION OF HALDIMAND COUNTY
W. McKaig, Counsel for Haldimand County
Defendants (Respondents)
HEARD: October 22, 2020
JUDGMENT
THE HONOURABLE JUSTICE r. j. harper
Introduction
[1] On October 22, 2020 I gave an oral judgment granting a permanent injunction in the matter in favour of Foxgate and Haldimand County. I indicated that I would provide my written reasons for this decision. These are those reasons.
[2] This matter raises two issues:
(i) Whether Skyler Williams should be reinstated in these proceedings and allowed to participate? If not;
(ii) Whether a permanent Injunction should be granted to Foxgate and Haldimand County?
Background
[3] This matter has been before me, on multiple occasions, since July 20, 2020. I have granted and extended interlocutory injunctions to Foxgate and to Haldimand County. The injunctions, among other things, prohibit anyone from attending on the subject land development known as McKenzie Meadows in the County of Haldimand without the permission of Foxgate or their agents. The injunctions also prohibited any persons from preventing Foxgate or any of their partners and their agents from working on the development of the approved subdivision. With respect to the Haldimand injunction, no person could block any of the thoroughfares within the jurisdiction of Haldimand County.
[4] As set out in the reasons for my decision cited as Foxgate Development Inc. v. Doe et al, 2020 ONSC 6244, I ruled that Skyler Williams, who was added as a party to these proceedings on August 25, 2020, was in contempt of court by his own admission during that proceeding.
[5] During the course of the hearing held on October 16, 2020, Mr. Williams stated that he was in contempt of my injunction orders. When asked: “if a permanent injunction were granted to Foxgate and Haldimand County as requested by them would you comply with that Order” he stated that he would not comply.
[6] When considering whether the court had inherent jurisdiction to prohibit a party to further participate in a proceeding if their conduct amounted as an abuse of the court’s process, I considered the following at para. 49 of the above noted reported decision:
- Justice McLachlin in R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at page 1007 stated the following:
“…abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. The concepts of oppressiveness and vexatiousness underline the interest of the accused in a fair trial. But the doctrine evokes the public interest as well in a fair and just trial process and the proper administration of justice.”
The whole concept of abuse of process is to prevent abuse by a party of the Court. I find that it is an abuse of process for Skyler Williams, the leader of those that are occupying the subject lands, to come to this Court and state that he does not belong in this Court, this Colonial Court, and that he will continue to be in open and flagrant defiance of any orders that are made. It cannot be a fair process to all the litigants in this case to have one party be in open defiance of both the process and of the orders of this Court and at the same time allow that party to further extend these proceedings while openly defying the Court.
Skyler Williams is seeking to bring a Constitutional question before the Court and involve the Attorney General of Canada and the Attorney General of Ontario. While Skyler Williams and the other defendants are not in compliance with the Court orders, I will not allow his claims to proceed. However, if he and his followers comply with the orders of this Court and vacate the subject lands and agree to be bound by the orders of this Court, he may reinstate himself and fully participate in these proceedings.
[7] During this hearing Skyler Williams denied saying that he would not comply with any of the court’s orders. He stated that would depend on the order. When asked again if he would comply with a permanent injunction if Foxgate’s request was granted, he confirmed that he would not.
[8] Mr. Williams was given the opportunity to reinstate himself if he demonstrated that he and his followers were complying with the orders of this court and would comply with future injunction orders. His statement at this hearing makes it clear that he has no intention to comply. He also takes the position that he is not the leader and that he cannot control what other people do.
[9] During the course of previous hearings of the interlocutory injunctions, I found that Skyler Williams is the leader of the protesters who are occupying the subject property, damaging public and private property, and blocking access to public roads. He, and those who chose to follow him by conducting themselves in a lawless and destructive manner, are causing havoc and harm to residents of Caledonia and many other areas within Haldimand County.
[10] Skyler Williams did not come to this court of his own initiative to seek to advance a land claim over the subject property. He was made a party to this action as a result of evidence presented to this court that allowed me to make the necessary findings and Order pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rr.5.03 (4) and (5). The operative provisions read as follows:
Power of Court to Add Parties
(4) The court may order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in the proceeding shall be added as a party.
Party Added as Defendant or Respondent
(5) A person who is required to be joined as a party under subrule (1), (2) or (3) and who does not consent to be joined as a plaintiff or applicant shall be made a defendant or respondent.
[11] There was no evidence before me that Skyler Williams was authorized to represent any aboriginal or indigenous group in order to advance a land claim. No aboriginal or indigenous group ever sought status to make any land claim in this court action.
[12] After Skyler Williams was made a party, he filed an unsworn affidavit dated September 18, 2020 consisting of approximately 7 pages along with approximately 200 pages of unauthenticated articles and other documents that purport to show that the Haudenosaunee never surrendered or ceded the subject lands.
[13] Skyler Williams and those that are following him are in open and flagrant defiance of the court injunctions. He was given an opportunity to be reinstated in these proceedings and he has chosen not to do so. He has gone even further to state in open court that he will not obey any court order that grants a permanent injunction on behalf of Foxgate and Haldimand County.
[14] In my written reasons cited at Foxgate Developments Inc. v. Doe et al, 2020 ONSC 6244 I made reference to the Superior Courts inherent jurisdiction at para 48:
- With respect to the law, of a Courts inherent power to ensure its process is not abused, I make reference to two cases that are the leading cases on abuse of process. In Toronto City v. CUPE Local 79, 2003 SCC 63, [2003] 3 SCR 77 at paragraph 35:
“Judges have an inherent and residual discretion to prevent an abuse of the court’s process. This concept of abuse of process was described at common law as proceedings “unfair to the point that they are contrary to the interest of justice.””
[15] In making my decision as to whether Skyler Williams should be reinstated, I am guided by the words of Justice McLachlin, as she then was in the United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901, at pp 931:
Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at that heart of our society: without it there can be neither peace, nor order no good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.
[16] I am not punishing Skyler Williams for his contempt in the face of this court. However, I cannot allow him to continue in these proceedings while he is in such open contempt even after being given the opportunity to be reinstated.
[17] Mr. Williams pleadings are struck, and he will not be allowed any continued participation in these proceedings.
[18] As no other defendants filed any defense to this action, Foxgate and Haldimand County seek to proceed on their request for a permanent injunction. Any claim for damages shall be adjourned to the trial coordinator to schedule a hearing to prove those damages. The issue of the permanent injunction shall proceed.
Permanent Injunction
[19] In my decision of October 16, 2020, I related some of the relevant facts that I found on the evidence before me. I will review the findings of fact made at that time. There has been nothing presented to me that would change these findings. The material facts commence at para. 2 of my decision:
The Title to the Subject Lands
With respect to the subject lands, Foxgate became the registered owner of the property known as 1535 McKenzie Road, Haldimand County, on September 9th, 2015. These lands consist of approximately 25 acres.
The parcel register of the land registry shows that Foxgate, through a related number company, acquired the subject lands for the purchase price of approximately $4 million.
The title abstract shows that, at the time of the purchase by Foxgate, there were no claims or encumbrances on the title except certain hydro and utility rights.
The title that was searched by the lawyers for Foxgate at the time was traced back to an original Crown patent for these lands. The lands were granted to Thomas Nichols on November 21st, 1853, and recorded in the Province of Canada archives, December 3rd, 1853.
There has never been any judicial proceeding commenced by a person or any person or entity to set aside the original Crown grant that transferred the subject lands to Mr. Nichols in 1853, nor is there any claim registered on title whereby any Indigenous group has claimed an interest in the lands.
The inaction in the form of absence of the commencement of legal proceedings to set aside the Crown grant includes inaction by the Six Nations Elected Council and Haudenosaunee Confederacy Chiefs. The Six Nations elected council is part of a claim that was instituted in 1995 and presently is transferred to Toronto and will be dealt with in 2022, but that claim deals with an accounting for damages.
The Development Process
After a public process, pursuant to the Planning Act, that included these subject lands, there was an approval for a residential development. That Planning Act application was with a different developer and started in 2003. That process, of necessity, under the Planning Act requires numerous publications of notices of applications and zoning changes. That development did not proceed.
However, Foxgate obtained the subject lands in 2015. They embarked upon another public process pursuant to the Planning Act and obtained a draft plan approval to develop the subject lands for the construction of 218 residential units. Since that approval, they have sold approximately 118 of those units.
As part of the public process to obtain the draft plan approval, all the necessary applications were circulated to the Six Nations of the Grand River, as well as the Mississauga of the New Credit.
After this circulation, no Indigenous groups provided any input or opposition in any of the formal proceedings provided under the Planning Act.
After receiving all of the necessary approvals and given the approval of the draft plan of subdivision, Foxgate and their building partners undertook to sell units and prepare the subdivision for construction.
It was not until July 20th, 2020, that opposition to the development was expressed in the form of multiple individuals coming onto the subject lands and preventing the construction work from proceeding.
The individuals objecting to the development did not resort to any legal process. Instead, they went the route of self-help, trespass and damage to property of the contractors.
Heavy equipment intended to connect services such as sewage, water, utilities were spray-painted. A large construction bin was spray painted with the words “Land Back Lane 1492”.
Contractors were prevented from doing their work and construction had to come to a complete halt. Contractors were prevented from even attending on the land. The persons objecting to the development took occupation of the lands and since that time no construction by Foxgate or their building partners has been allowed to proceed.
[20] In and around the July 20th occupation of the subject properties, there were social media postings by some of the protestors, including Skyler Williams. Some the postings read:
Mackenzie Meadows is one of several developments within the area that are directly violating the sovereignty of the Haudenosaunee.
Collectively we remain firm in our stance that action must be taken to stop the ongoing development of our lands.
[21] On or about July 24, 2020, the Six Nations issued their own press release that confirms that they had been accommodated for these lands. They also noted in their release that:
the remedy for lands and money that were unlawfully taken back in the 1800s is against Crown Canada and Crown Ontario. The claim is that the Crowns breached their fiduciary duty by unlawfully dispossessing the Six Nations of all its land and money.
[22] The Six Nations press release goes on to state:
Six Nations commenced an action against both Crowns in 1995 in the Ontario Superior Court of Justice. This suit is being actively prosecuted, and the trial is scheduled to start in October of 2022.
[23] In late July 2020 the Six Nations of the Grand River elected council issued a press release that stated that the Six Nations had been “accommodated” for the two residential developments along McKenzie Road in Caledonia.
[24] Foxgate’s building partners for this approved development are Losani Homes and Ballantry Homes. Ballantry Homes is a residential development company that operates out of Toronto. The news release put out by the Six Nations of the Grand River went on to state:
The Accommodations involved two actions – transfer of 42.3 acres of land to the Six Nations in 2016, as well as $352,000 paid to the Six Nations of the Grand River Elected Council and put in a “Land Banking Account” to be used for future land purchases for the reserve.
[25] This accommodation was also referred to in the evidence as the “Definitive Agreement”.
[26] At the time of this hearing, the evidence showed that the Six Nations of the Grand River supported the Foxgate Development. No one from the Six Nations of the Grand River ever sought to involve themselves in this action either to seek party status or to seek leave as an intervenor.
[27] I must emphasize that even the court action commenced in 1995 never claimed title to any part of the lands that may include the subject lands.
[28] In October 2010, Justice Harrison Arrell was dealing with a trial that involved the City of Brantford and multiple respondents. In the report of the decision set out in City of Brantford v. Montour et al, 2010 ONSC 6253, 104 O.R. (3d) 429, at paras 1-2, Arrell J. said:
[1] The City of Brantford passed by-laws prohibiting blockage and disruption of work on municipal roadways at certain construction sites within the City. These locations had been subject to work stoppages as a result of protests by various first nations’ individuals, represented by the respondents, who claim ownership of the land as a result of past treaties.
[2] The City then sought and obtained an interim injunction to prevent work stoppages at the specific sites. The City now seeks an interlocutory injunction. The respondents seek a dismissal of the application and a declaration that the by-laws are invalid and should be quashed.
[29] The issues that Justice Arrell faced also involved protests, work stoppages, and other forms of violence. At paras. 11-14, Arrell J. continues:
[11] The position of HDI and the Confederacy, as stated under oath by the Defendant Hazel Hill, is that all lands within the "Haldimand Tract" are Haudenosaunee lands. The Haldimand Tract was given to the Haudenosaunee people in 1784 by the Haldimand Treaty. The land in question runs six miles deep on either side of the Grand River from its source to its mouth. The City of Brantford, among others, is situated within this tract of land.
[12] The respondents believe that all Haudenosaunee lands are independent of Canada, the Province of Ontario and the City of Brantford. As such, the Haudenosaunee, through HDI, are entitled "to govern not only the lands but the people within those lands". [citations omitted]
[13] I find as a fact that Kingspan and the developers of the Hampton Inn met with Ms. Hill and Mr. Detlor as principals of HDI. They were told they must submit an application, an application fee of $3,000, an archaeological study and an environmental study. The developer of the Hampton Inn was also told that if HDI approved the project, the title in the land would be assigned to HDI in exchange for a long- term lease and that annual development fees would be levied. The fee was not paid and the site was shut down regularly. Mr. Detlor, representing HDI, demanded a fee in the amount of $7,000 from Kingspan. This fee was not paid and there were on-going work stoppages, in spite of an interim injunction being issued. Kingspan eventually abandoned its project in Brantford. This evidence is uncontradicted by the respondents.
[14] I find as a fact that in practice and into the future it was the intention of HDI to require all developers of undeveloped land to apply to it for a permit, pay the requisite fee and ultimately comply with all HDI requirements, all without any legal authority to so. If they did not, their projects would be shut down.
[30] Arrell J. was dealing with the issue of an interlocutory injunction and not a permanent injunction. However, as part of his analysis, he had to consider the reasonableness of the claims that were being advanced by the plaintiffs and the balance of any prejudice to the parties. He stated at paras. 48-51:
[48] I have reviewed at length the evidence presented in this case regarding an alleged surrender of lands by the Six Nations people. In particular, I have reviewed the treaties, minutes, documents and letters confirming agreements in various subsequent meetings of the Six Nations and the Crown. I have also reviewed the resumés, reports and cross-examinations of the two admitted experts, Darlene Johnston and Joan Holmes.
[49] I prefer the opinion of Ms. Holmes. Her report was through, logical and referenced historical documents between 1844 and 1850. Many of these were not reviewed by Ms. Johnston. Ms. Holme's opinion has not changed throughout or in cross- examination. She concludes in her report dated February 2, 2009:
“. . . I maintain my opinion that the historical documents cited above dating from the 1840's indicate that the Six Nations Chiefs in council expressed their intention to reserve particular lands for their exclusive use and surrender the remainder for sale. As indicated in the report on the Council of 18 December, 1844 and reiterated in the petitions of 2 August 1845 and 18 February 1846, they agreed to surrender for sale the lands in the Martin and Johnson Settlements, the Oxbow Tract, and the Eagle's Nest Tract, with the exception of a 200-acre block variously described as being in the vicinity of the Mohawk mission or school.”
[50] The City of Brantford was established within the lands described by Ms. Holmes. That is, within the lands that she opines the Six Nations agreed to surrender for sale and were indeed sold.
[51] I am given further comfort that Ms. Holmes has the preferable opinion by the fact that the Six Nations, despite 25-30 years of archival research on their own, have never elected to commence any legal proceedings against any entity, being either private or government, for the return of this land or title to the land. They did commence a lawsuit in 1995, which has been dormant for the last few years, for compensation. As well, they have filed 29 land claims with the federal government for compensation.
[31] The dispute that is before me is not one of a land-claim. This focus cannot be lost in the smoke of self-help remedies, violence and threats of violence. It cannot be diverted by the incitement of hatred and false claims of racism.
The Chronology Leading to Further Polarization and Community Turmoil
[32] Following the occupation of the subject lands, Foxgate brought an action in the Superior Court by way of a Notice of Action. At the same time, they sought an ex-parte injunction against persons who had not been identified at that time but were occupying the subject lands and refusing to allow Foxgate and their agents on the subject lands. Foxgate was granted the injunction on July 30, 2020.
[33] That interim injunction, among other things, prohibited persons who were not authorized by Foxgate to attend on the subject lands and further prohibited any person from interfering with Foxgate and their building partners construction activities on the subject property.
[34] The interlocutory injunctions were extended on August 7 and August 25, 2020.
[35] On August 5, 2020, the Ontario Provincial Police attended on the subject property to enforce the court orders and remove the protesters. As a result of this, the protests escalated into blockading the Highway 6 Caledonia bypass and other thoroughfares within the county of Haldimand.
[36] The activity in and around the highway and streets of Caledonia turned violent. Among other things the protestors threw construction skids, and large truck or tractor tires on the highway from the overpass above the highway. They lit the tires and other large objects on fire. They also lit large heavy equipment on fire. Thick toxic smoked bellowed into the air within the community of Caledonia.
[37] The protestors prevented the OPP and the fire department from doing their job. Rocks were thrown at the police and their vehicles. Rocks were also thrown at fire department first responders to prevent them from putting the fires out.
[38] Once the OPP had left the site of the subject lands, the protesters reoccupied the subject lands during the evening of August 5, 2020 and have not left since that date.
[39] On August 5, 2020 Skyler Williams posted a number of videos and comments on his Facebook page.
[40] His videos of that day were filed as an exhibit at the hearing held on August 25, 2020. Skyler Williams uses his Facebook page to update his many followers on the activity of the OPP in enforcing the interlocutory orders of this court.
[41] He started out with a morning video that advised everyone that the OPP had contacted him and they were going to attend the site on that day. He ended it with the sign off that he would keep everyone posted.
[42] His next post that day advised everyone that the OPP had blocked off the McKenzie road accesses at the subject lands and he stated:
“if you want to come down now is the time to get here guys”.
[43] The next video shows an unidentified female video recording all the OPP activity at the site.
[44] The female voice states that if you are just joining the OPP have arrived at 1492 Land Back Lane formerly McKenzie Meadows on Six Nations territory and they appear to be about to remove us from the site. She then states that “if you think you can come down here Google address 1535 McKenzie Road.”
[45] The female voice tells the viewers that all the accesses are not fully blocked. She stated that the police rolled up pretty heavy and she records all of the OPP vehicles. The female told the viewers that the OPP told them yesterday that it was time to remove the women and children and it was time to leave. She stated that they called back and later said that was a miscommunication.
[46] She then stated that it does appear that one land defender is being removed and she then recorded black smoke coming from the subject lands. She told the viewers that was an SOS signal that was lit on McKenzie Meadows while more individuals were being arrested. One of the persons arrested was Skyler Williams.
[47] The female recorder then reminded the viewers of the SOS message being sent by way of black smoke. She then advised that she was not sure what kind of gun one of the officers who walked by her was carrying. She thought that it might be tear gas.
[48] In the next recording, the same female advised the viewers on the recording that “the folks that were here have all been removed and folks were still trying to enter the site.” As many of the police were leaving the area the female recorder told the viewers that folks from the community were still trying to come onto the site.
[49] The next recording by the same female shows that community members had started to gather and access Land Back Lane, however the “cops are not allowing that to happen”. She also advised that everyone who was on site had been taken away. She then told the viewers that it was a little bit tricky to get there now but “if you are trying keep trying”.
[50] The next recording on this Facebook page is made during the latter part of the afternoon of August 6, 2020. Skyler Williams appears in this video while in his vehicle driving. He told the viewers that:
“they released me from the police station, and it sounds like everyone is shutting shit down.”
[51] Skyler Williams goes on to state that he warned the police that this was going to happen and that all we were doing was being peaceful in “our camp.” He told his viewers that:
“it was the OPP who brought the guns and shooting at us and so everything is getting shut down.”
[52] By 9:26 p.m. that same evening, Skyler Williams posted his final video of that day. The video was taken from the subject lands. In this posting he stated:
“So we rolled back into Land Back Lane. Land Back Lane is now ours again.”
[53] He then told the viewers:
“Over 100 cops tried to push us off and they got their asses kicked just like the last time in 06 and every other spot. Now 1492 is now back on the map again. So make sure guys to come out and support.”
[54] He then told the viewers that unfortunately Argyle Street, the by-pass and the train tracks all around the area are shut down again. He stated:
“We felt that the people who were peaceful were in jeopardy and being shot at. They were arrested and thrown in jail we are going to fucking stay here forever”.
[55] He then thanked everyone for coming out to support.
[56] The above noted evidence is at least some of the evidence that my finding that Skyler Williams is the leader of the protestors is based on.
[57] I do not agree that Skyler Williams and the protestors were in any way acting in a defensive manner when they returned to the subject lands nor were they acting in a defensive manner when they blockaded Argyle Street, the by-pass and the train tracks.
[58] I accept the evidence of Chief Superintendent Cain when he set out in his affidavit sworn October 5, 2020 and he elaborated on in his oral testimony on August 16, 2020. He stated that on August 5, 2020, some of the protesters acted in a violent manner when they were attempting to avoid being arrested and police used appropriate non-lethal force in those circumstances.
[59] The reckless and destructive actions of the protestors in blocking the highways and thoroughfares in Haldimand County was not in any way justified nor is it in any way legal. As Skyler Williams stated on his post of August 5, 2020, the protestors were “kicking the OPP’s ass just like they did in 06.”
[60] This type of conduct is not a reflection on the Indigenous peoples of Canada, the Six Nations and Haudenosaunee people. Skyler Williams’ unsworn affidavit of September 18, 2020 professed to outline that the Haudenosaunee Confederacy follows “the Great Law of Peace”.
[61] Skyler Williams goes on to state that the Great Law of Peace sets out the following obligations a Haudenosaunee man must follow with regard to the land:
Protect the land to ensure it is viable for the coming faces
Ensure that our matrilineal line have a say over our lands and protect those lands
Maintain a connection to the land and all of creation
Uphold the Great Law of Peace.
[62] The conduct of Skyler Williams and those who choose to follow him from July 20, 2020 has not been peaceful.
[63] They resorted to self-help instead of attempting to raise their grievances, claims and objections from the start of the development process that included these lands in 2003. Foxgate followed all of the requirements of the law in order to advance this development and they heard nothing from Skyler Williams or any other Indigenous group that would give them any indication of concern about this development.
[64] Skyler Williams and others claim that Foxgate did not consult with the Haudenosaunee people. Foxgate, as a private entity, does not owe any duty to consult.
[65] Skyler Williams did not make any effort to notify either the Ontario Government or the Government of Canada that any aboriginal rights or land claims might be reasonably impacted by the proposed development. No efforts were made by the individuals protesting or Skyler Williams to negotiate with the Federal or Provincial government prior to the development being approved.
[66] Strathy J. (as he then was) stated in Canadian National Railway Company v. Brant (2009), 2009 CanLII 32911 (ON SC), 96 O.R. (3d) 734 (Sup. Ct.), at para. 50:
[50] Aboriginal title, treaty rights and Aboriginal rights are a right held by Aboriginal people in common and they cannot be asserted by individual members of the community. To put it in the words used by Prothonotary Hargrave in Wahsatnow v. Canada (Minister of Indian Affairs and Northern Development), [2002] F.C.J. No. 1665, 2002 FCT 2012, the claims in this case are not a right that the defendants themselves may claim. If the right exists, it is a right that belongs to the Band and can only be asserted by its lawful representatives or in a representative action.
[51] There is good reason for this. If, as the statement of defence alleges, the Tyendinaga Mohawk Nation has Aboriginal title to the lands in question, any claims for trespass to those lands should be enforced by the authorized representatives of that Nation and not by individuals who may or may not represent its will. In Te Kiapilanoq v. British Columbia, 2008 BCSC 54, [2008] B.C.J. No. 50, Parrett J. stated, at para. 25:
In my respectful view, the elected Council representing the Squamish Nation is the proper party with the authority of this defined class of people to conduct a case which is aimed at determining the questions of Aboriginal rights and title. The collective nature of these rights requires an authority from the people who are, in this case, collectively represented by their elected Council.
[52] Although Aboriginal law is evolving, it is settled law that Aboriginal title and Aboriginal rights, such as those asserted in the counterclaim, cannot be the subject of a personal action. These claims are, therefore, dismissed.
[67] Skyler Williams and those who follow him waited until millions of dollars had been spent and approximately 200 individuals had committed to buying one of the units and moving their families into this approved development. It was only then that they chose to take it upon themselves to occupy the subject lands and prevent the development from advancing.
[68] On the night of the reoccupation, Skyler Williams posted on social media that they are now back on the subject lands that they named “1492 Land Back Lane” and they will never leave. Skyler Williams refers to those who are occupying the subject lands as “Land Defenders”. This moniker assigned by Skyler Williams and other protesters is misplaced. These are not land defenders.
[69] As it relates to the subject property and the thoroughfares within Haldimand County, Skyler Williams and those who are occupying the subject lands and damaging and obstructing public roads are land offenders.
[70] Skyler Williams continued his social media posts told the viewers that he had warned the police that this was going to happen and that all they were doing was being: “peaceful in our camp.” He then said that it was the OPP who brought the guns and shooting at us and so everything is getting shut down. There is no peaceful camping when it comes to setting fires to tires and excavators, smashing police car windows and throwing rocks at firemen trying to protect the community while they are trying to put out those fires. There is no legitimate “land defending” when individuals take it upon themselves to occupy lands after years of public process has resulted in those lands being authorized for development.
[71] In my October 16, 2020 reasons relating to the interlocutory injunction I stated at para. 46:
- Legitimate claims and grievances can and should be played out in a peaceful and respectful process that includes negotiations with various levels of government. Properly constituted lands claims that are either brought to the Courts in a timely manner or before the appropriate tribunals. That has not been done. There are very legitimate grievances and claims of Indigenous people in Canada. As a society and as a Court, we must take into account the many years of systemic abuse inflicted upon Indigenous people and we try to do so. However, it is never proper or acceptable to achieve your goals, regardless of how heartfelt they are, in open defiance of the law and in open and flagrant disregard for the life and property of others.
[72] Claims and grievances must be advanced in a rational and reasoned way. They must be advanced within the proper forum. Resort to the courts and specific land claims tribunals are some of the approaches that can be taken. Negotiations with the various levels of the Federal and Provincial governments are other approaches that can and should be taken by the proper representative groups or persons authorized to represent those groups.
Events Leading up to the Occupation of the Subject Lands
[73] On July 18, 2020, Skyler Williams’ Facebook page included a stream of comments between several persons, including Skyler Williams. The stream of comments start with a link being forwarded from a person identified as Sarah Dover. The message goes on to state:
“Huge residential and commercial project moves forward in Caledonia”.
[74] Skyler Williams replied as follows:
“I think it’s time for a land back occupation”.
[75] This comment is followed by a person identified as Starla Myers:
“Hells yeah!!! We got some good people that are actively working behind the scenes.”
[76] On July 19, 2020, Skyler Williams posted the following at 6:41 p.m.:
“So after talking with lots of people and hearing many more. We have moved in to set up camp at the McKenzie Creek development that is slated to border our reserve on unceded six nations territory. Fuller Drive and McKenzie Road is where the camp is located.”
[77] Skyler Williams stated at this hearing before me on October 22, 2020:
“This isn’t land issues with 100’s of years of atrocities committed towards that private business. And so comparing 500 years of hate and oppression and racism to a private business is on its face inflammatory for indigenous people across the country. And so if this is what the Court is using to base its decision today on, I would caution this Court in making any decision that would further that divide.”
[78] Skyler Williams and his followers are attempting to merge two things that are a distortion of reality.
[79] Firstly, this is not a land claim that that has been properly advanced in this or any other court.
[80] Secondly, the years of abuse inflicted on the Indigenous community and their resulting pain must be recognized by all of our society and is recognized by the court. However, that pain cannot be used as a battle cry that can only lead to division, hate and future violence. This court only considers the evidence and the law that is properly presented in the courtroom.
[81] Skyler Williams and others chose to start their process of illegal activities by resorting to self-help and violence. His declaration: “I think it’s time for a land back occupation” has been followed by exactly that. Instead of participating in a recognized court process and/or good faith negotiations with properly levels of government, he and his followers chose to seize and occupy the subject lands.
[82] Whenever something does not go as Skyler Williams and his followers want them to go, they incite others to increase their lawless behavior.
[83] On August 6, 2020, Haldimand County brought their own request for a permanent and interlocutory injunction as a result of the violent and destructive events that started on August 5, 2020. Haldimand County was granted an interlocutory injunction preventing anyone from blockading or obstructing any of the thoroughfares within the jurisdiction of Haldimand County.
[84] Protestors also blocked CN rail lines in and around Haldimand County. CN obtained an interlocutory injunction before a different Superior Court Justice prohibiting the blockade and interference with the rail line operations. That injunction remains in force to this day. Damage was also done to one of the rails switches.
[85] The barricades on Argyle Street and Highway 6 remained in place for 15 days. They were eventually removed by the protestors on or about August 21, 2020 after negotiations with the Provincial Liaison Team of the OPP. The damage to the roadways was extensive. The threat to reinstate the blockade was always present.
[86] Despite the removal of the barricades on the above noted thoroughfares, and despite the interlocutory injunctions preventing blockage and obstruction of such thoroughfares, protestors have, from time to time, placed further obstructions on certain of the thoroughfares for shorter periods of time. I find that these blockades were evidence of warnings by the protestors that they will continue to conduct this type of activity if things do not go their way. The subject lands, however, remain occupied by the protestors to this day and Foxgate continues to be unable to proceed with construction of the subdivision.
[87] I commented on the evidence that was put forward by Chief Superintendent John Cain at the hearing before me on October 16, 2020 in the above noted reasons. I stated at para. 45:
- The affidavit and the oral evidence of Chief Superintendent Cain of the OPP has made it clear that there is a reasonable inference that can be drawn by me and that if Skyler Williams and his supporters do not like the Court outcomes, they will resort to escalating violence. Superintendent Cain gives examples in his affidavit of potential violence that are quite frightening. As a society, we cannot be held hostage to violence and threats of violence.
[88] Skyler Williams and the protesters have continued to act in such a manner that reflects a willful and complete disregard for the law and the orders of this court. Their actions demonstrate a complete disregard for the serious and negative consequences of their actions on the community. The escalation of their violent behavior is often followed by Skyler Williams’ projected blame for the violence on others, including the OPP. Skyler Williams and other protestors portray the OPP as the aggressors causing violence. This is part of the false projection. The OPP have been attempting to enforce the orders of the court and I find, as a fact, that they have done so in a manner that is very restrained and often in response to aggressive actions taken by protestors against them.
[89] At the hearing before me on October 22, 2020, the OPP counsel updated the court on enforcement efforts. One of the most recent incidents that was related by counsel concerned an attack by a protestor on an OPP cruiser that caused the windows of the cruiser to be smashed in and feces to be deposited in the cruiser. This type of criminal activity cannot continue.
[90] The resort to unlawful activities that include, trespass, damage to property and serious risk of harm to public health and safety is at the core of this case. On the evidence before me, I find that the likelihood of reoccurrence of such conduct is great. I accept the evidence of Chief Superintendent Cain that was not challenged in cross-examination by Skyler Williams. He stated that:
The OPP’s belief that enforcement action will cause significant backlash and result in violence is not only based on historical precedent, but also its own assessment and information-gathering and risk assessments. While I am not prepared to advise of the source of that information nor to share the risk assessments (that are privileged), I can advise of that some of protestors have access to weapons. I also believe, based on the information available to me, that protestors have access to incendiary devices and may use them in the event of an operation to forcible remove protesters. I further believe that critical infrastructure such as railways, bridges and hydro stations may be attacked and damaged in retaliation for the use of force by police. I am responsible to ensure that all appropriate precautions are taken to minimize the risk of injury to members of the OPP, the protestors and members of the public and to reduce the likelihood of significant breach of the peace.
[91] Chief Superintendent Cain stated that he was relaying this evidence to emphasize to the court that operational planning in this situation is extremely complex. I agree that the uniform application of the rule of law to all citizens of Canada can be complex. In regard to issues that involve the Indigenous community, as the Ontario Court of Appeal stated in Henco it must be a nuanced application. However, when individuals resort to attempting to hold the court hostage to their demands, the rule of law must take precedence. This present situation in Caledonia and Haldimand Country cannot continue.
The Law and Analysis - Permanent Injunctions
[92] In Labourers' International Union of North America, Local 183 v. Castellano, 2020 ONCA 71, 444 D.L.R. (4th) 183, at paras. 24-26, the Court of Appeal discussed the law applicable to permanent injunctions. The test to be applied in granting a permanent injunction differs from the test for an interlocutory one. This is because, when deciding a permanent injunction, the court is in a position to finally determine the merits and legal rights of the parties. A permanent injunction is extraordinary relief that must granted sparingly, and the scope of any such injunction must be tailored to only what is reasonably necessary to remedy the specific wrong committed and prevent further harm to the claimant.
[93] At para. 25, the Court articulates the analysis to be applied:
[25] As referenced in Robert J. Sharpe, Injunctions and Specific Performance, loose-leaf, (Toronto: Canada Law Book, 2019), at para. 1.45, in Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46, 358 Nfld. & P.E.I.R. 123 (N.L. C.A.), at para. 72, the Court of Appeal of Newfoundland and Labrador summarized the approach to be applied in deciding whether to grant a permanent injunction:
(i) Has the claimant proven that all the elements of a cause of action have been established or threatened? (If not, the claimant's suit should be dismissed);
(ii) Has the claimant established to the satisfaction of the court that the wrong(s) that have been proven are sufficiently likely to occur or recur in the future that it is appropriate for the court to exercise the equitable jurisdiction of the court to grant an injunction? (If not, the injunction claim should be dismissed);
(iii) Is there an adequate alternate remedy, other than an injunction, that will provide reasonably sufficient protection against the threat of the continued occurrence of the wrong? (If yes, the claimant should be left to reliance on that alternate remedy);
(iv) If not, are there any applicable equitable discretionary considerations (such as clean hands, laches, acquiescence or hardship) affecting the claimant's prima facie entitlement to an injunction that would justify nevertheless denying that remedy? (If yes, those considerations, if more than one, should be weighed against one another to inform the court's discretion as to whether to deny the injunctive remedy.);
(v) If not (or the identified discretionary considerations are not sufficient to justify denial of the remedy), are there any terms that should be imposed on the claimant as a condition of being granted the injunction?
(vi) In any event, where an injunction has been determined to be justified, what should the scope of the terms of the injunction be so as to ensure that only actions or persons are enjoined that are necessary to provide an adequate remedy for the wrong that has been proven or threatened or to effect compliance with its intent? [Emphasis added]
[94] The comments of the British Columbia Court of Appeal in Schooff v. British Columbia (Medical Services Commission), 2010 BCCA 396, 9 B.C.L.R. (5th) 299, at paras 27-28, are also applicable:
[27] Neither the usual nor the modified test discussed in RJR-MacDonald has application when a court is making a final (as opposed to interlocutory) determination as to whether an injunction should be granted. The issues of irreparable harm and balance of convenience are relevant to interlocutory injunctions precisely because the court does not, on such applications, have the ability to finally determine the matter in issue. A court considering an application for a final injunction, on the other hand, will fully evaluate the legal rights of the parties.
[28] In order to obtain final injunctive relief, a party is required to establish its legal rights. The court must then determine whether an injunction is an appropriate remedy. Irreparable harm and balance of convenience are not, per se, relevant to the granting of a final injunction, though some of the evidence that a court would use to evaluate those issues on an interlocutory injunction application might also be considered in evaluating whether the court ought to exercise its discretion to grant final injunctive relief.
Application of the Law
[95] I find that Foxgate has a legal title to the subject lands that goes back to the Crown grant in 1853. There is nothing on title to give notice to a bona fide purchaser for value that would alert that buyer to any claim or interest being advanced or potentially advanced by any indigenous person or group of persons.
[96] After purchasing the subject lands in 2015 for approximately $4,000,000.00, Foxgate entered into a lengthy and public process in order to obtain all of the necessary approvals and zoning changes pursuant to the Planning Act, R.S.O. 1990, c. P.13. The process required public notices be posted and public meetings to occur in which any person could express any objections to the proposed plan of subdivision. There were no objections presented during this period.
[97] Foxgate Inc. is a private corporation, there is no duty to consult any Aboriginal or Indigenous groups. That duty lies with the Crown in appropriate circumstances. Nevertheless, Foxgate did reach out the Elected Council of the Six Nations of the Grand River. They were not only given an opportunity to have input and express any objections, they entered in an agreement titled “Definitive Agreement”, that has been referred to by the Six Nations of the Grand River as the “Accommodation”.
[98] At no time were there any objections made by any Indigenous group about the planned subdivision. Foxgate was given a draft subdivision plan and they started to market the lots and housing units. By the time this matter came to a hearing there were approximately 200 units sold by Foxgate and or their building partners.
[99] In Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641 (C.A.) at paras. 259-260, the court stated:
[259] A Crown patent, apparently granting the fee simple in land, provides a classic example of an official act that will be relied on by innocent third parties. A Crown patent is accepted by all as the basis for rights to real property and no purchaser would consider it necessary to go behind the patent to determine whether or not it had been validly granted. It is for this reason that the courts have for [so] long hesitated to invalidate patents that have created third party reliance. See, for example, Bailey v. Du Cailland, [1905] 6 O.W.R. 506 (Div. Ct.) at p. 508 per Falconbridge J.:
It was held in McIntyre v. Attorney-General, 14 Gr. 86, that where a bill is filed by a private individual to repeal letters patent on the ground of error, the onus of proof is on the plaintiff, although it may to some extent involve proof of a negative. 'Patents are not to be lightly disturbed. They lie at the foundation of every man's title to his property.'
[260] To a similar effect is the following statement from Fitzpatrick v. The King (1926), 1926 CanLII 403 (ON CA), 59 O.L.R. 331 (C.A.) at p. 342 quoting from Boulton v. Jeffrey (1845), 1 E. & A. 111 (C.A.):
It is difficult indeed to conceive a more prolific source of litigation than would be opened in this Province, if the patentees of the Crown were exposed to be attacked upon supposed equities acquired by other parties, while the estate was vested in the Crown, when no fraud, misrepresentation, or concealment is imputed to the patentee, and when the Crown, at the time of making the grant, has exercised its discretion on a view of all the circumstances. Just such a patent as this lies at the root of every man's title.
[100] In this case, the title given to Foxgate was traced back to the Crown Patent. A true copy of the Patent was filed in evidence. There is no way that Foxgate could have known that anyone was asserting a claim to this land when all of the evidence of their searches and public processes to obtain their development approval are taken into account. As bona fide purchasers for value they are entitled to rely on their diligent searches and the five-year development process without objection being expressed as evidence that they have a good and proper title to the subject property. The people who have purchased units in this development are also entitled to be able to rely on this very same evidence of Foxgate being a bona fide purchaser for value to make the commitment they did on behalf of their families.
[101] Although Skyler Williams pleadings were struck, I will comment on some the material that he attached to his unsworn affidavit of September 16, 2020. Mr DeMello, on behalf of Foxgate, made submissions relating to some of the assertions by Skyler Williams in his final submissions to this court.
[102] Skyler Williams outlined in his unsworn affidavit his version of the Nanfan Treaty of 1701 as the basis of Indigenous rights to the subject lands. I repeat, Skyler Williams has no authorization to advance any rights on behalf of the Six Nations community and he has not provided any evidence that such authorization exists. The Nanfan Treaty was the only basis advanced by Skyler Williams in the evidence that he filed.
[103] I accept the submissions of Foxgate that the Nanfan Treaty which includes lands in Southwestern Ontario, encompass the subject lands. Reference is made to the decision of Justice Broad in Enbridge Pipelines Inc. v. Williams et al, 2017 ONSC 1642. In that case, Broad J. reviewed the case of R. v. Ireland (1990), 1990 CanLII 6945 (ON SC), 1 O.R. (3d) 577 (Ont. Ct. Gen Div), at paras. 66-70:
[66] The Ireland case involved a prosecution brought by the provincial Crown against two members of the Oneida First Nation for hunting without a license and hunting in the closed the season contrary to the Game and Fish Act R.S.O. 1980, c.182. Gautreau, J. noted that under the Nanfan treaty the Iroquois ceded all of the territory which is now Southwestern Ontario to the British in return for a guarantee of free and undisturbed hunting rights over the lands in the territory forever. He characterized the issue in the case as “whether these hunting rights may be exercised today on non-reserve lands in Elgin County, unrestricted by the provisions of the Game and Fish Act.”
[67] The Ireland case involved a prosecution under a provincial statute. It did not involve a dispute between an aboriginal group or individual asserting a treaty-protected right to hunt and an owner of private property. Indeed, on this point Gautreau, J. stated as follows, at para. 51- 52, as part of his consideration of whether the hunting rights reserved by the Nanfan Treaty were limited or extinguished based on original intent or the common expectation of the parties:
There are two rights in opposition here: the Crown's ownership and consequent rights to use and develop the land and the Indians' right to hunt freely. There are no limiting factors in the treaty. Therefore one can reason that the Indians may hunt anywhere in the territory and this includes private property. This could lead one to suppose that they might hunt racoons in the backyard of a private home. With respect, I believe that this goes beyond what the parties intended or what is reasonable. To permit it would be to trample on the Crown's ownership rights. On the other hand, it would be equally unreasonable for the Crown to argue that its legal title and its right to use, develop and enjoy the lands can frustrate, and in effect abolish, the hunting rights of the Indians.
Neither of these positions is reasonable. The answer must come from interpretation of the treaty by determining the intention of the parties. How did they intend to solve the problem if rights came into conflict?
[68] Justice Gautreau went on at para. 55 as follows:
I think it can be concluded from history that the British government wished to colonize, use and develop the land for its benefit. Therefore it is unreasonable that absolute rights should have been granted to the Indians which paralyze the Crown's use of the lands. On the other hand, the British wanted the Iroquois as their allies, and understood the importance of free and uninterrupted hunting to them. Therefore it is unreasonable that absolute rights should have been intended for the Crown which would paralyze the Indians' right to hunt. The conclusion must be that the parties intended that the competing rights should be reconciled, and this reconciliation would vary with time and circumstances. The rights are not frozen in time. A treaty must be seen as a living document that evolves with changing times according to the underlying original intent. When the rights of the parties conflict they must be adjusted.
[69] Justice Gautreau dismissed the appeal from acquittal due to an inadequate evidentiary basis, as there was not enough evidence to permit the court to make any findings of conflict or incompatibility between the two rights (see para. 56).
[70] In my view, the Ireland case does not provide support for the proposition advanced by the defendants, namely that the Nanfan Treaty reserves or extends hunting rights to the defendants on private property (see 1536412 Ontario Ltd. v. Haudenosaunee Confederacy Chiefs Council 2008 CarswellOnt 3419 (S.C.J.) at para.14).
[104] I agree with Justice Broad’s interpretation of the Nanfan Treaty.
[105] Considering the interpretation of the Nanfan Treaty, Skyler Williams’ lack of authorization to assert aboriginal and or indigenous rights in this case, and the evidence that Foxgate’s root of title goes back to the Crown Patent, I find that Foxgate has a good and marketable title to the subject lands.
[106] I find that the continued occupation of the subject lands by the protestors is a violation of the property rights of the plaintiff, Foxgate.
[107] No one can resort to self-help remedies. The Supreme Court of Canada in Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at para. 42, stated:
[42] In my opinion, the Behn’s acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued. They did not raise their concerns with Moulton after the Authorizations were issued. Instead, without any warning, they set up a camp that blocked access to the logging sites assigned to Moulton. By doing so, the Behns put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations. To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.
[108] This case is not dissimilar to Behns. Skyler Williams and the other protestors resorted to self-help and then resorted to open and flagrant defiance of this court’s orders. To allow that would bring the administration of justice into disrepute.
[109] In this case there has been extensive consultation and communication with the Six Nations and other Indigenous communities by the plaintiff with respect to the subject lands and the development process. These efforts were made without any legal duty to consult. See Haida Nations v. B.C. (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511.
[110] I also am mindful that the duty to consult exists to protect collective rights of the Indigenous community and is not owed to any individual (Behn; Enbridge Pipelines Inc.).
[111] I find that Skyler Williams and the protesters that follow him will not comply with the orders of the court. He has given life to his proclamation in his affidavit that: “I am a Haudenosaunee man who does not belong before this colonial court”.
[112] In consideration of all of the evidence I find that the extraordinary remedy of a permanent injunction is necessary. An order shall issue in the form requested by Foxgate.
Haldimand County Request for Permanent Injunction
[113] It is an extreme remedy that is requested by Haldimand County. To prohibit blocking of all thoroughfares within the Haldimand County jurisdiction is something that any court must consider only when confronted with cogent evidence of serious and ongoing risks of harm and disruption to the legal processes that the County must consider, enact and enforce.
[114] I find that the evidence, in this case, rises to the level of serious and ongoing risk of harm to the public living in Haldimand County. The evidence of a pattern of violent conduct on the part of the protestors is clear and unequivocal. Skyler Williams and his followers have shown nothing but a willingness to resort to violence and destruction in order to achieve their goals. They have shown nothing but disrespect and flagrant disregard for this court and its Orders.
[115] Skyler Williams cautioned this court that in making any decisions this court must not perpetuate the divide between Indigenous peoples and the rest of Canada. It is not the court that is perpetuating any divide. It is the conduct of the few lawless protestors who have total disregard for the health, safety and wellbeing of all people who reside in the Haldimand community who are creating an atmosphere of fear and who act as though no law can be enforced against them.
[116] In Hamilton (City) v. Loucks (2003), 2003 CanLII 64221 (ON SC), 232 D.L.R. (4th) 362 (Ont. Sup. Ct.), Henderson J. dealt with the blockade of the construction of a long awaited and debated highway extension known as the Red Hill Valley Expressway that was to connect the Lincoln Alexander Expressway to the Queen Elizabeth Highway.
[117] That highway project was the subject of many public hearings, reviews and studies that started in 1967. In April 2013, the City of Hamilton had approved the fifteen-stage project. The construction on stage three was about to begin.
[118] On July 31, 2003 a group of protestors stated that they did not want the project to go ahead. When one of the contractors attended the site on August 5, 2003, they were blocked from doing so. The City went to Court to obtain an interlocutory injunction against the protestors.
[119] In his review of the law, Henderson J. considered the City’s submission on its need for an injunction to enforce its by-laws. He stated at para 36:
[36] I therefore conclude that where a plaintiff requests an interlocutory injunction to prohibit interference with the plaintiff's property rights, or to enforce a municipal by-law, or to restrain civil disobedience, if that plaintiff can prove that there is a serious question to be tried, then the injunction should be granted unless there are exceptional circumstances.
[37] I will add one caveat. Where the plaintiff relies on the modified traditional test the standard to be met regarding the first criterion should be higher than the standard required where all three criteria are to be considered. In the traditional case the plaintiff must show merely that the case is not frivolous or vexatious in order to satisfy the court that there is a serious question to be tried. See the RJR-Macdonald case. In my view, because of the emphasis on this criterion in the present case, the plaintiff must prove that it has a strong prima facie case. This view is consistent with the cases that have held that the plaintiff must establish a strong prima facie case where the interlocutory injunction will have the practical effect of putting an end to the action. See Injunctions and Specific Performance at paras. 2.300 and 2.310.
[38] Furthermore, I do not accept the defendants' submission that this injunction should not be granted because the police officers have not yet chosen to enforce the by-laws or the TTPA. In my view the position taken by the defendants was clearly rejected in the case of MacMillan Bloedel Ltd. v. Simpson, 1996 CanLII 165 (SCC), [1996] 2 S.C.R. 1048 at paragraph 20.
[120] Henderson J. went further at para 41:
[41] Regarding the alleged breach of by-laws, it is clear that the actions of the protestors were intended to impede vehicular traffic attempting to gain access to the Greenhill site. In that respect, I note that in the cross-examination of Andrew Loucks, one of the defendants, Mr. Loucks admitted that the protestors were picketing between the Dufferin construction trucks and where they wanted to go in the Valley. He further admitted that the protestors did so at least in part with the intention of preventing those trucks from going into the Valley and commencing their work.
[42] Still further, given all the circumstances, I find that there is a strong case to show that the protestors are engaging in civil disobedience. Clearly, the defendants are disobeying the municipal by-laws and are in breach of the TTPA. They may also be guilty of the torts of nuisance and inducing breach of contract, as well as the criminal offence of intimidation.
[121] Although Henderson J. was dealing with an interlocutory injunction, his comments regarding breaches of by-laws that the city has a duty to enforce are applicable to this case.
[122] Haldimand County is responsible to provide for the free and unimpeded access to the thoroughfares within its jurisdiction. It is abundantly clear on the evidence that Skyler Williams and his protest followers will resort to unlawful conduct to achieve whatever their stated goals are. This cannot be allowed to happen. The harm to the residences that live and work in the community cannot remain as an ever-present danger.
[123] In the circumstances of the case I find that the extraordinary remedy of a permanent injunction is need in the form requested by Haldimand County and order shall issue in accordance with their request.
Costs
[124] Rule 57 of the Rules of Civil Procedure reads as follows:
57.01 (1) In exercising its discretion under section 131 of the Courts of Justice Act to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing,
(0.a) the principle of indemnity, including, where applicable, the experience of the lawyer for the party entitled to the costs as well as the rates charged and the hours spent by that lawyer;
(0.b) the amount of costs that an unsuccessful party could reasonably expect to pay in relation to the step in the proceeding for which costs are being fixed;
(a) the amount claimed, and the amount recovered in the proceeding;
(b) the apportionment of liability;
(c) the complexity of the proceeding;
(d) the importance of the issues;
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
(h) whether it is appropriate to award any costs or more than one set of costs where a party,
(i) commenced separate proceedings for claims that should have been made in one proceeding, or
(ii) in defending a proceeding separated unnecessarily from another party in the same interest or defended by a different lawyer; and
(i) any other matter relevant to the question of costs.
[125] Both Foxgate and Haldimand County request costs on a substantial indemnity basis.
[126] Costs are an exercise in the court’s discretion that must be exercised judiciously and having regard to all of the factors that are set out in the Rules of Civil Procedure.
[127] A successful party is presumptively entitled to their costs. Both Foxgate and Haldimand County are successful.
[128] One of the factors that I must consider is whether any of the parties acted in bad faith. If so, substantial indemnity costs are appropriate unless the successful party in any way acted unreasonably. I find that neither Foxgate nor Haldimand County acted unreasonably in the conduct of this matter.
[129] I find, as a fact, that Skyler Williams acted in bad faith. He and the other unknown defendants took the law into their own hands and used self-help to achieve their goals. Skyler Williams openly admitted that he was in contempt of my orders and if a permanent injunction was granted, he would not comply.
[130] This matter was made complex by the conduct of Skyler Williams and his followers by their contemptuous conduct and resort to violence and destruction. The importance of the issues to Foxgate and Haldimand County cannot be overestimated. Substantial sums of money have been invested and many lives have been put on hold due to the conduct of Skyler Williams and the other unknown defendants.
[131] The court gave Mr. Williams an option to reinstate himself and advance any legitimate claims that he wanted to if he complied with the orders of this court. Foxgate sent him a letter that made it clear that if he chose vacate the subject property, in compliance with the Orders of the Court that Foxgate would assist him in their negotiations with the respective levels of government with respect to compensation they were seeking. There was no reply to Foxgate’s offer.
[132] I have reviewed the Cost Outline of Foxgate and of Haldimand County. Mr. McKaig, on behalf of Haldimand County, is a senior lawyer. Mr DeMelo, on behalf of Foxgate, is also a senior lawyer. I find that the rates charged and the work done in this case is reasonable having regard to the complexity of the issues and the importance to their respective clients.
[133] There shall be an Order that Skyler Williams pay the costs of Haldimand County in the amount of $49,479.00 plus HST of $870.67.
[134] Skyler Williams shall pay the costs of Foxgate the sum of $117,814.18 inclusive of fees, disbursements and HST.
_____________________________HARPER, J.
Released: October 29, 2020
COURT FILE NO.: CV-20-32
DATE: October 29, 2020
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FOXGATE DEVELOPMENTS INC.
Plaintiff
- and -
JANE DOE, JOHN DOE, SKYLER WILLIAMS or any agent or person acting under their instructions, and other persons unknown, and THE CORPORATION OF HALDIMAND COUNTY
Defendants
JUDGMENT
RJH
Released: October 29, 2020