HAMILTON COURT FILE NO.:
09/8301
DATE:
2009-04-03
ONTARIO
SUPERIOR COURT OF
JUSTICE
|
B E T W E E N: |
) |
|
|
JOHN VOORTMAN &
ASSOCIATES LIMITED |
)
)
) |
Michael Bordin, for
the Plaintiff |
|
|
) |
|
|
Plaintiff |
) |
|
|
|
) |
|
|
- and - |
) |
|
|
|
) |
|
|
|
) |
|
|
THE HAUDENOSAUNEE
CONFEDERACY CHIEFS COUNCIL, Members of THE HAUDENOSAUNEE MEN’S FIRE OF
GRAND RIVER, or any agent or person acting under their instructions,
DICK HILL, JOHN DOE, JANE DOE and other persons unknown |
)
)
) |
The Haudenosaunee
Men’s Fire of Grand River, Self Represented
No one else
appearing |
|
|
) |
|
|
Defendants |
)
) |
|
|
|
) |
|
|
|
) |
HEARD:
March 26 and 27, 2009
in Hamilton |
The Honourable
Mr. Justice J. R. Henderson
REASONS FOR DECISION ON MOTION
INTRODUCTION
[1]
The plaintiff, John
Voortman & Associates Limited, (hereinafter called “Voortman”) brings this
motion for an interlocutory injunction restraining the defendants from
entering onto the property known municipally as 68A Main Street North,
Hagersville, Ontario (hereinafter called “the property”), and restraining
the defendants from interfering with Voortman’s construction of a
residential subdivision on the property.
[2]
The Haudenosaunee
Confederacy Chiefs Council (hereinafter called the “HCCC”) did not appear
on this motion. However, several members of the Haudenosaunee Men’s Fire
of Grand River appeared in court and spoke against Voortman’s motion. In
this decision I will refer to the members of the Haudenosaunee Men’s Fire
as the “HMF”.
[3]
The Haudenosaunee are
aboriginal people whose ancestors were members of the five original
nations of the Iroquois Confederacy. They are part of what is now commonly
called the Six Nations. The HCCC are the traditional leaders of the
Haudenosaunee people, and the HMF is a group composed of some of the
Haudenosaunee people.
[4]
Voortman submits that
the plaintiff corporation is the registered owner of the property and as
such is entitled to exercise the rights of a property owner. Those rights
include the development and construction of a subdivision.
[5]
The HMF correctly state
that the property is part of the Haldimand Tract, which is an area of land
that is the subject of an ongoing unresolved dispute between the Six
Nations and the federal and provincial governments.
[6]
The HMF do not deny that
they have attended on the property and have obstructed the construction of
the subdivision, but state they have done so because they have an interest
in the property and are bound by aboriginal laws to protect that land.
THE BACKGROUND FACTS
[7]
I find that Voortman
purchased the property on November 30, 2001 for value and consequently
became the registered owner on title in the Haldimand County Land Registry
Office. Subsequently, the land registration system was converted to the
land titles system. Since that time Voortman has been shown as the owner
of the property under the land titles system.
[8]
Voortman can trace its
title to the property back to the Crown Patents of 1849 and 1850. Also,
there are sworn declarations that establish quiet undisturbed possession
of the property by the registered owners back to 1916.
[9]
The property consists of
six acres of raw land upon which Voortman intends to build a subdivision
of 46 townhomes. I note that the property is in an area of Hagersville
that is bordered on all sides by a mixture of residential, commercial, and
community buildings. There are no woodlands, rivers, streams, or bodies
of water on the property.
[10]
Voortman submitted a draft plan of subdivision to Haldimand County in the
spring of 2008, and the plan of subdivision was approved and registered on
title on April 4, 2008. Voortman did not have notice of any aboriginal
claim prior to the registration of the plan of subdivision, but the County
Planner had clearly circulated the plan of subdivision to all interested
parties, including representatives of the Six Nations Elected Council
(hereinafter called the “Six Nations Council”).
[11]
I
note that the Six Nations Council is a recognized body that deals with
administrative matters on behalf of the Six Nations people. However, the
Six Nations Confederacy Chiefs (hereinafter called the “Six Nations
Chiefs”) are recognized as the hereditary leaders of the Six Nations
people.
[12]
Thereafter, a site plan agreement was entered into between Voortman and
Haldimand County on September 11, 2008, and that site plan agreement was
registered on title on October 14, 2008.
[13]
Chief William Montour of the Six Nations Council wrote to the Senior
Planner at Haldimand County on June 6, 2008, and said that the property
was part of the lands in the Hamilton-Port Dover Plank Road land claim.
That land claim is one of many that the Six Nations Council has filed
regarding lands in the Haldimand Tract.
[14]
In
his letter Chief Montour wrote: “Six Nations’ position still stands
that these lands should not be subject to any development until Six
Nations’ land claims are settled with the provincial and federal
governments”. A copy of that letter was sent to Voortman, and
constituted Voortman’s first notice of any potential aboriginal objection
to the subdivision.
[15]
Prior to receiving this letter and prior to circulating the plan of
subdivision, John Voortman Sr., an officer of Voortman, had in fact spoken
with Chief William Montour about this subdivision, and he had received
some oral assurances from Chief Montour that the Six Nations Council would
be supportive of this subdivision. After his receipt of the letter Mr
Voortman tried to contact Chief Montour, but his calls were not returned.
[16]
In
early October 2008 Voortman arranged for the clearing and the levelling of
the property for the purpose of commencing the construction. Voortman
hired Almas Construction to do the levelling and clearing.
[17]
On
October 9, 2008 a group of approximately 8 to 10 aboriginal persons
attended at the property to protest the construction. I accept that the
aboriginal persons occupied the property and had the collective intention
to interfere with and prevent the construction on the site. Voortman was
advised that the property was aboriginal land and that the aboriginal
group would come back to the property day after day until construction was
stopped.
[18]
On
that date O.P.P. officers attended at the construction site, but refused
to remove the aboriginal persons from the site. One of the O.P.P.
officers advised John Voortman Jr. that the O.P.P. was there to keep the
peace, but they would not act to remove any protesters unless a court
injunction was obtained.
[19]
As a
result of the events of October 9, 2008, Almas Construction was forced to
stop its work and thereafter refused to carry on any further work on the
property. Therefore, no work was done on the property between
approximately October 10, 2008 and December 7, 2008.
[20]
During that time John Voortman Sr. contacted several leaders in the
aboriginal community for assistance with respect to this dispute. Also on
November 25, 2008, Voortman’s lawyers wrote to Chief Montour of the Six
Nations Council and Chief MacNaughton of the Six Nations Chiefs,
requesting that they contact Voortman’s lawyers in order to resolve the
issue.
[21]
By
letter dated December 4, 2008, Lonny Bomberry wrote back to Voortman’s
lawyers on behalf of the Six Nations Council. Mr. Bomberry acknowledged
that there was a presumption of the legality of the Crown Patents upon
which Voortman relied to establish its title, but also stated that it was
the position of the Six Nations that these lands had never been lawfully
surrendered. The letter confirmed that there was an ongoing lawsuit with
respect to the Haldimand Tract lands, but the lawsuit was being held in
abeyance pending negotiations with the federal and provincial governments.
The negotiations were being led by the Six Nations Chiefs with the
assistance of the Six Nations Council.
[22]
This
letter also stated that the Six Nations Council was aware that the HMF and
another group called the Haudenosaunee Development Institute (hereinafter
called the “HDI”) were showing up at construction sites to stop
developments in Brant and Haldimand Counties, but that the Six Nations
Council did not condone the conduct of the HDI or the HMF or their
supporters.
[23]
As a
result, on December 7, 2008 Almas Construction went back to the job site
and commenced work clearing the property.
[24]
Then, on December 18, 2008 there was another incident on the property. On
that date approximately 8 to 10 aboriginal persons again occupied the
property and shut down work on the property. Again O.P.P. officers
attended at the site but would not remove the aboriginal persons.
[25]
John
Voortman Sr. attended at the property and spoke with Dick Hill, one of the
aboriginal persons, who informed Mr. Voortman that he represented the HMF.
He said that the aboriginal people would not allow construction to occur
on the property and that he and other aboriginal people intended to occupy
the property to prevent construction. He said that he and the others
would do whatever it took to prevent the development; that they would
block Voortman’s machinery; that they would jump on the machinery and
remove the keys by force if necessary.
[26]
Dick
Hill demanded that Voortman meet with the HMF about this matter.
Consequently, on December 21, 2008, John Voortman Sr. and his wife
attended a meeting with members of the HMF.
[27]
At
the meeting of December 21, 2008, Mr. Voortman and his wife attended with
approximately 14 men who were apparently members of the HMF. I accept the
evidence that these 14 men did not clearly identify who they were, or who
they represented, except that they used the name Haudenosaunee and claimed
to represent the interests of Haudenosaunee people.
[28]
At
the meeting, Mr. Voortman attempted to explain how he had obtained title
to the property and how he intended to develop it. I accept his evidence
that he was told by one of the apparent leaders of the group that he had
to give the property back. He was informed that he should convey the
property back to the Haudenosaunee people and then take a lease of the
land in perpetuity.
[29]
When
Mr. Voortman raised the issue of a potential injunction he was informed
that the HMF would not abide by any injunction. He was told that the HMF
would fight for the land and were prepared to die for it. He was also the
subject of an angry racial attack against “white people”.
[30]
The
net result of the meeting was that Mr. Voortman came away with the clear
understanding that the HMF and their supporters would occupy the property
and obstruct construction on the property at any cost. I accept that he
felt very intimidated and frustrated.
[31]
The
construction work was stopped on December 18, 2008 and did not resume
until after this court action was commenced and a temporary order was made
on March 4, 2009 that permitted limited work to be done on the property.
[32]
At
the present time Mr. Voortman estimates that the plaintiff corporation has
spent approximately $539,000 in purchasing and developing the property.
Moreover, Voortman has entered into several binding contracts for
subcontractors to do work on the property, and Voortman has entered into
the site plan agreement with the County to build townhomes on the
property.
THE LAW REGARDING INJUNCTIONS
[33]
The
traditional test to be applied in considering whether an interlocutory
injunction will be granted is the three-step test set out by the Supreme
Court of Canada in the case of
RJR-MacDonald Inc. v. Canada (Attorney General),
1994 CanLII 117 (S.C.C.), [1994] 1 S.C.R.
311. The three criteria in this test can be set out by way of the
following three questions:
1.
Is there a serious question to be tried?
2.
If the injunction is not granted will the plaintiff suffer
irreparable harm?
3.
Which party will suffer the greater harm if the injunction
is granted or refused? This is called the balance of convenience test.
[34]
Where there has been interference with property rights it has been held
that the traditional test should be modified so that the issue of whether
there is a serious question to be tried will be strongly emphasized,
almost to the exclusion of the other two issues.
[35]
I
reviewed the law in support of that proposition in an earlier case
reported as City of Hamilton v. Loucks
reflex, (2003), 232 D.L.R. (4th)
362, and I adopt my reasoning in that case for the purposes of this
decision.
[36]
Also, in support of the modification of the traditional test I refer to an
excerpt from Injunctions and Specific Performance, Loose Leaf
Edition, at paragraph 4.610 wherein the author of the book, Justice Robert
Sharpe wrote:
“Under our system of law, property rights
are sacrosanct. For that reason, the rules that generally apply to
injunctions do not always apply in cases such as this. The balance of
convenience and other matters may have to take second place to the
sancrosanctity [sic] of property rights in matters of trespass.”
[37]
Justice Sharpe also wrote at paragraph 4.10 of his book:
“Where property rights are concerned, it is
almost that damages are presumed inadequate and an injunction to restrain
continuation of the wrong is the usual remedy.”
SERIOUS ISSUE TO BE TRIED
[38]
Voortman’s claim is quite simple. Voortman claims to be the owner of the
property by way of a chain of title going back to the Crown Patents.
Voortman is entitled to rely on that chain of title. Therefore Voortman
has the right to exclude others from the property, and has the right to
build on the property, provided it has complied with all regulatory laws.
If another party interferes with Voortman’s property rights, Voortman is
entitled to a court remedy. Thus, Voortman claims to have a strong case
for relief today.
[39]
The
HMF on the other hand also act as if they have a proprietary interest in
the land. They claim to have a right to occupy the land and control the
activity on the land. In effect they claim to have a right to regulate
development on the property in the Haldimand Tract on such terms as they
deem to be appropriate.
[40]
If
Voortman is the lawful owner, the actions of the members of the HMF amount
to trespass, nuisance, extortion, intimidation and inducing breach of
contract. Therefore, if Voortman can establish a strong case to support
its submission that it is the lawful owner of the property, then I accept
that there is a serious issue to be tried, and prima facie an
injunction should issue.
[41]
The
presentation by the HMF at this motion was somewhat unusual in that the
representatives of the HMF stated that they did not wish to submit to the
court process, but wished to deliver a message to the court. I permitted
them to deliver their message and gave them some leeway as to the way in
which the message was delivered. Having done that, I feel as if I received
the message that they wished to convey.
[42]
The
HMF message dealt with aboriginal laws and beliefs. I accept that the
message was delivered in good faith and in the spirit of resolution.
However, I need to adapt that message and consider it in the context of
the laws of this Province. It is important, for reasons that I will set
out later in this decision, that one set of laws apply to all of the
people in this Province.
[43]
From
the presentation by the HMF, I discern that there are three issues that
the HMF say affect the strength of Voortman’s case. They say first, that
the Six Nations people have a legal claim to the property; second, that
Voortman does not have legal title to the property; and third, that the
court does not have jurisdiction to make the requested order because the
Crown has not consulted with the aboriginal people about this property. I
will deal with each of these issues in order.
I - THE PROPERTY CLAIM OF THE SIX NATIONS
[44]
The
HMF take the position that their actions are justified because the
aboriginal people have a legal claim to this land. It is acknowledged
that the property lies within the Haldimand Tract; an area of land
encompassing six miles on either side of the Grand River. The Haldimand
Tract was the subject of the Haldimand Proclamation of 1784, and the
subject of Simcoe’s Patent of 1793.
[45]
It
has been submitted in the past that the Haldimand Proclamation and
Simcoe’s Patent combined to grant title to the Haldimand Tract to the Six
Nations people. That position was taken by Chief Joseph Brant and has
been maintained by many of the hereditary chiefs thereafter. This issue
was considered by the courts in 1974 in the case of Isaac v. Davey,
5 O.R. (2d) 610. In summary, the Ontario Court of Appeal held in Isaac
that the combined effect of the Haldimand Proclamation and Simcoe’s Patent
did not vest title to the lands in the Six Nations people.
[46]
In
Isaac, after a thorough review of the history, the court stated,
using the language of the day, at paras. 31 and 32 that the intention of
the Proclamation and the Patent was “to confer upon the loyal subjects
of the Crown within the Six Nations Confederacy... the same rights as were
enjoyed by those Indians who had always been there”. They did
not “create a unique interest” in the Haldimand Tract which no
other native people enjoyed.
[47]
The
court in Isaac wrote at paragraph 30:
“For the purposes of this case, it is
sufficient to say that Indian title in Ontario has been ‘a personal and
usufructuary right, dependent on the good will of the Sovereign’. Indian
lands were reserved for the use of the Indians, as their hunting grounds,
under the Sovereign’s protection and dominion. The Crown at all times
held a substantial and paramount estate underlying the Indian title. The
Crown’s interest became absolute whenever the Indian title was surrendered
or otherwise extinguished.”
[48]
The
Six Nations Council have filed several claims regarding different parts of
the Haldimand Tract, including a claim filed in 1987 regarding the lands
known as the Hamilton-Port Dover Plank Road lands. Subsequently, in 1995,
a legal action was commenced by the Six Nations Council against the
federal and provincial governments regarding the entire Haldimand Tract.
The Six Nations Chiefs and the Six Nations Council are both involved in
negotiations to resolve this action.
[49]
The
position of the Six Nations Council is set out in their letter to
Voortman’s counsel. Essentially, the Six Nations Council takes the
position that the aboriginal interest in the land in the Hamilton-Port
Dover Plank Road land claim was never lawfully surrendered to the Crown.
But, in the legal action there is no claim for an interest in the land.
That is, the Six Nations Council do not make a legal claim for possession
of or return of the land. Rather, the 1995 legal action claims an
accounting for all revenues that the Six Nations people should have
received from the land.
[50]
In
summary, the Ontario Court of Appeal has found that there has been no
conveyance of title to the Six Nations people, and the two recognized
governing bodies of the aboriginal people, namely the Six Nations Council
and the Six Nations Chiefs, have not made any claim for title to or
possession of the property.
[51]
Moreover, even if the HMF have the authority to speak on behalf of the Six
Nations people, I note that there is no claim made by the HMF in this
action or in any other action for the possession of or return of this
property. The only request that the HMF have made with respect to the
return of the lands is the demand that was made of Mr. Voortman Sr. at the
meeting of December 21, 2008.
[52]
Therefore, I find that there is no merit to the suggestion that the Six
Nations people have a right to ownership of the property. I find that if
there is an aboriginal claim it is for compensation for the loss of the
usufructuary right regarding the property, not for title to the land.
II - THE PROPERTY CLAIM OF VOORTMAN
[53]
The
validity of a Crown Patent was raised in the case of The
Chippewas of Sarnia Band v. Canada, 51 O.R. (3d) 641. In that case at
para. 24 the Ontario Court of Appeal held that a Crown Patent was valid on
its face and continued to have legal effect unless and until a court
decides to exercise its discretion to set it aside.
[54]
In
that case, the court found that the aboriginal lands in question had never
been surrendered, and therefore the validity of the Crown Patent, known as
the Cameron Patent, was called into question. The court had to consider a
potential remedy for the Chippewas. At para. 243 the court wrote:
“In particular, the issue was whether it is
appropriate, in deciding whether or not to accord the Chippewas a remedy,
for the court to consider that no claim was asserted for 150 years, and
that innocent third parties may have relied on the apparent validity of
the Cameron patent.”
[55]
The
court decided that because of the delay of 150 years in asserting the
claim, combined with the reliance on the Patent by the registered owners,
the court should use its discretion to refuse a remedy in the form of a
return of or possession of the land. However, the court noted that the
Chippewas still had a claim against the Crown for damages. See paragraphs
246, 248, 302, and 310 of the Chippewas case.
[56]
In
the present case Voortman can trace its title back to the Crown Patents,
and therefore, pursuant to the Chippewas case, Voortman’s title is
presumed to be valid. That presumption is acknowledged by the Six Nations
Council in its letter to Voortman’s lawyers. Moreover, even if the
surrender of the Hamilton-Port Dover Plank Road land in this case is found
to be invalid, given the decision in the Chippewas case, it is very
unlikely that the court would set aside the Crown Patents.
[57]
Therefore, I find that Voortman has a strong case to show that it is the
legal owner of the property, and that Voortman is entitled to exercise its
rights as the property owner. The arguments to the contrary are weak, and
even if successful would not result in any change in the registered
ownership of the property.
III - THE DUTY TO CONSULT
[58]
The
HMF take the position that this court has no jurisdiction to make the
requested order because the Crown has not fulfilled its duty to consult
regarding this dispute.
[59]
The
obligation of the Crown to consult where a claim is made with respect to
aboriginal rights was discussed in the case of Haida Nation v. British
Columbia (Minister of Forests), 2004 S.C.C. 73. In that case the
Supreme Court of Canada held at paras. 32 to 35 that a duty to consult and
possibly accommodate arises when the Crown has knowledge, real or
constructive, of the potential existence of the aboriginal right or title
and contemplates conduct that might adversely affect it.
[60]
The
court also wrote at paras. 39 to 51 that the duty to consult was
contextual in nature, and varied according to the circumstances of each
specific case. In particular, at para. 39 of the Haida Nation case
the court wrote:
“The content of the duty to consult and
accommodate varies with the circumstances. Precisely what duties arise in
different situations will be defined as the case law in this emerging area
develops. In general terms, however, it may be asserted that the scope of
the duty is proportionate to a preliminary assessment of the strength of
the case supporting the existence of the right or title, and to the
seriousness of the potentially adverse effect upon the right or title
claimed.”
[61]
The
court also further defined the nature of the duty to consult at paras. 43
and 44 as follows:
“Against this background, I turn to the kind
of duties that may arise in different situations. In this respect, the
concept of a spectrum may be helpful … At one end of the spectrum lie
cases where the claim to title is weak, the Aboriginal right limited, or
the potential for infringement minor. In such cases, the only duty on the
Crown may be to give notice, disclose information, and discuss any issues
raised in response to the notice...
At the other end of the spectrum lie cases
where a strong prima facie
case for the claim is established,
the right and potential infringement is of high significance to the
Aboriginal peoples, and the risk of non-compensable damage is high. In
such cases deep consultation, aimed at finding a satisfactory interim
solution, may be required.” …
[62]
Moreover, the Supreme Court of Canada held at paras. 52 to 56 that the
duty to consult was the duty of the Crown, not the duty of a third party
land owner.
[63]
The
Ontario Court of Appeal appeared to push this duty further in the case of
Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008),
91 O.R. (3d) 1, at para. 48 where the court wrote:
“Where a requested injunction is intended to
create ‘a protest-free zone’ for contentious private activity that affects
asserted aboriginal or treaty rights, the court must be very careful to
ensure that, in the context of the dispute before it, the Crown has fully
and faithfully discharged its duty to consult with the affected First
Nations … The court must further be satisfied that every effort has been
exhausted to obtain a negotiated or legislated solution to the dispute
before it...”
[64]
I
agree with Voortman’s counsel that the Frontenac case cannot be
interpreted to mean that in every dispute between a private land owner and
an aboriginal group the Crown must engage in exhaustive consultations. The
Ontario Court of Appeal could not have meant that every private land owner
in the Haldimand Tract could be subjected to an aboriginal occupation of
his/her lands, and if so, then the Crown must consult about every parcel
of private land in the Haldimand Tract.
[65]
For
that reason, I must use the contextual approach set out in the Haida
Nation case to define the nature of the duty to consult in the
present case and determine where in the spectrum the Crown’s duty to
consult lies.
[66]
I
have taken into account the fact that there is a presumption based on the
Crown Patents that Voortman is the registered owner of the property, and
that Voortman prima facie is entitled to exercise the rights of a
property owner. I have also considered the fact that there has been no
aboriginal claim to the land asserted for more than 150 years and that
there is documentation to establish quiet undisturbed possession back to
at least 1916. I have also taken into account the fact that the
recognized aboriginal leaders, the Six Nations Council and the Six Nations
Chiefs, have not asserted a claim to ownership of the land, and the HMF
have not made a legal claim for ownership of the land. Using the language
of the Haida Nation case, I find that the aboriginal claim is weak
and the private landowner’s case is strong.
[67]
I
have also taken into account the fact that an injunction would not
significantly affect any aboriginal claim for damages. The remedy of the
Six Nations people seems to be a claim for damages against the Crown, and
that remedy would not be affected by an injunction.
[68]
Given all of these considerations, I find that the Crown’s duty to consult
in this case is at the low end of the spectrum. I find that the Crown had
a duty to notify the Six Nations Council of Voortman’s intention to
develop the property, and to listen to, but not necessarily agree with,
any concerns raised by the Six Nations Council in response.
[69]
Therefore, on the facts of this case I must find that the Crown has
complied with its duty to consult. Specifically, the Six Nations Council
were provided with the draft plan of subdivision for their comments. No
response to the draft plan of subdivision was received prior to its
approval and registration.
[70]
Later, after Voortman became aware of the concerns of the Six Nations
Council and the HMF, Mr. Voortman Sr. responded by contacting several
aboriginal leaders and attempting to contact Chief Montour. Moreover,
Voortman’s lawyers wrote to the Six Nations Chiefs and the Six Nations
Council, and received a response that the Six Nations Council was not
supporting the occupation of Voortman’s property by the HMF or its
supporters.
[71]
Furthermore, I find that there were, and continue to be, ongoing
consultations regarding the Haldimand Tract and those consultations in
part deal with the Voortman property. Both the Six Nations Chiefs and
Council are participating in those consultations. That alone constitutes
good faith consultation by both sides in this very complex dispute.
[72]
That
brings me to the question of whether the Crown is compelled to consult
with the HMF directly in addition to consulting with the Six Nations
Chiefs and Council. Clearly, HMF takes the position that the Crown must
negotiate with them about any development on the property. However, I have
not received any cogent explanation of the relationship between the HMF
and the Six Nations Chiefs or Council.
[73]
In
my view the HMF is not well defined and its authority to represent
aboriginal people is not well established. There are two entities that
are recognized as having some authority to speak for the Six Nations;
namely the Six Nations Council and the Six Nations Chiefs. The Crown has
consulted with both, and in my view, has no duty to also consult with yet
another aboriginal group.
[74]
That
being said, I note that Voortman did participate in one meeting with 14
men who apparently were members of the HMF, but in hindsight that meeting
was fruitless. There is no further obligation on Voortman or on the Crown
to consult directly with the HMF.
[75]
For
all of these reasons I find that in this case the Crown has fulfilled its
duty to consult. I find that the suggestion by the HMF that the court
cannot grant an injunction because the Crown has failed to consult with
the aboriginal people has no merit.
IV - CONCLUSION REGARDING SERIOUS ISSUE
TO BE TRIED
[76]
I
now wish to summarize my findings with respect to whether there is a
serious issue to be tried. I accept that Voortman is the registered owner
of the property and therefore is entitled to exercise its rights as
owner. I accept that the Six Nations people have an ongoing claim
regarding these lands, but that claim is not for title to or possession of
the lands; rather it is for damages.
[77]
I
find that the ongoing claim was commenced by the Six Nations Council, and
that there are ongoing negotiations regarding this claim. These
negotiations are being pursued by the Six Nations Council and the Six
Nations Chiefs. There is no independent claim of the HMF.
[78]
I
also find that the actions of the HMF amount to both criminal and civil
misconduct. Their actions have interfered with the property rights of
Voortman and can be characterized as nuisance, trespass, extortion,
intimidation, and inducing breach of contract.
[79]
Therefore, I find that Voortman has established that there is a serious
question to be tried and Voortman has done so to standard of establishing
a strong prima facie case.
IRREPARABLE HARM AND BALANCE OF CONVENIENCE
[80]
Even
though the issues of irreparable harm and balance of convenience are not
significant factors in a case like this, I still find that both factors
favour Voortman.
[81]
Regarding irreparable harm, I find that if the injunction is not granted
it is probable that Voortman would suffer irreparable damage to its
reputation as a builder; that Voortman’s ability to construct a townhome
development and sell the townhomes would be diminished; that Voortman’s
investment in the property would be depleted or extinguished; and that
Voortman would probably be the subject of legal actions for breach of
already existing contracts. Voortman could not be adequately compensated
for these losses by monetary damages alone.
[82]
Regarding the balance of convenience, Voortman has a strong case as the
registered land owner and will clearly suffer damages if the injunction is
not granted. On the other hand, the case of the HMF is limited. The
claim of the Six Nations is only with respect to damages, not with respect
to the land. The appropriate remedy for the Six Nations people is to make
a claim for damages against the Crown, and that has already been done.
Their remedy will not be lost if an injunction were granted.
[83]
Therefore, I find that all three of the criteria set out in the
RJR-MacDonald case favour Voortman in this case.
THE RULE OF LAW
[84]
Before I conclude I would like to emphasize the rule of law. All people
in Canada are governed by the rule of law as confirmed in the preamble to
the Charter of Rights and Freedoms. That is, all people in Canada
are required to obey the law. As a corollary, all people in Canada are
entitled to know that every other person in Canada will be required to
obey the law. If any person in Canada does not obey the law, the courts
will enforce the law. In that way the public has some assurance that they
can live in peace without fear of those who might choose to disobey the
law.
[85]
In
the present case the representatives of the HMF delivered a message to
this court that they did not accept the court process. Moreover, there
was a veiled threat that if an injunction were to issue the HMF would have
no choice but to continue their tactics of intimidation and criminal and
civil disobedience. That threat does not alter or affect my decision
today.
[86]
The
HMF clearly have a choice. An injunction will be issued today. The HMF
may choose in good faith to abide by the injunction, live within the
criminal and civil law, participate in peaceful demonstrations, and pursue
whatever claim they believe they have through their own negotiations
and/or court actions. They are not compelled, as was suggested, to
disobey the injunction and engage in further criminal and civil
misconduct.
[87]
The
rule of law means that the HMF will be required to obey any court order,
just as any person in Canada would be required to obey a court order. The
assertion of an aboriginal right does not permit any person, aboriginal or
otherwise, to break the law.
CONCLUSION
[88]
For
all of the aforementioned reasons I find that Voortman is entitled to an
Order for an interlocutory injunction restraining the defendants from
entering onto the property and from obstructing Voortman’s development of
the property.
[89]
I
also declare that Voortman has title to and is the owner of the property,
and as such is entitled to exclusive possession of the property. I make
this finding so that no other group can come forward to occupy the
property as the putative land owner.
[90]
This
Order will be enforced by the Sheriff of Haldimand County with the
assistance of the O.P.P. I also order that Voortman and its designates may
use reasonable force to prevent any person from trespassing upon the
property, and to remove any trespasser from the property in accordance
with the provisions of the
Criminal Code
of Canada.
[91]
Therefore, an Order for an interlocutory injunction will go in accordance
with paragraphs three (a), (b) and (c), four, five, six (a), (b) and (c),
seven and eight of the Notice of Motion.
___________________________
Henderson, J.
Released:
April 3, 2009
PDF Format
reflex — (2003), 232 D.L.R. (4th)
362