



COURT OF APPEAL FOR ONTARIO

CITATION: Foxgate Developments Inc. v. Jane Doe, 2021
    ONCA 745

DATE: 20211006

DOCKET:
M52714, M52762 & M52781
    (C68873)

Coroza J.A. (Motion
    Judge)

BETWEEN

Foxgate Developments
    Inc.

Plaintiff

(Respondent/Responding Party)

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

(
Appellant
/
Respondent
/
Responding Party
)

and

Attorney General of
    Canada and Her Majesty the Queen in Right of Ontario

Third Parties

(Respondents)

Barry L. Yellin, for the appellant Skyler Williams

Paul DeMelo and Kristie Jennings, for the responding
    party Foxgate Developments Inc.

Bruce A. Macdonald, for the responding party Corporation
    of Haldimand County

Richard Ogden and James Shields, for the respondent Her
    Majesty the Queen in Right of Ontario

Mary Eberts and Jillian Rogin, for the proposed
    intervener 1492 Windsor Law Coalition

Caitlyn E. Kasper and Jonathan Rudin, for the proposed
    intervener Aboriginal Legal Services

Cara Zwibel, for the proposed intervener Canadian Civil
    Liberties Association

Heard: September 22, 2021 by video conference

REASONS FOR DECISION

Overview

[1]

1492 Windsor Law Coalition (1492 WLC) (M52762), Aboriginal Legal
    Services (ALS) (M52714), and the Canadian Civil Liberties Association (CCLA)
    (M52781) have brought motions for leave to intervene as a friend of the court,
    pursuant to r. 13.02 of the
Rules of Civil Procedure
, R.R.O. 1990,
    Reg. 194, in an appeal from an order of the decision of Harper J. (the motion
    judge) of the Superior Court of Justice.

[2]

The order under appeal struck out the appellants pleadings on an
    injunction brought by Foxgate Developments Inc. (Foxgate) and the Corporation
    of Haldimand County (Haldimand). The motion judge found the appellant had
    engaged in an abuse of process due to the appellants self-admitted contempt of
    court. The appellant also seeks leave to appeal the costs decision of the motion
    judge, which directed the appellant to pay Foxgate and Haldimand substantial
    costs.

[3]

During the proceedings below, the appellant also brought a Notice of
    Constitutional Question and Third-Party Claim against Canada and Ontario. Both
    Canada and Ontario are third parties in the appeal.

[4]

The appeal was perfected by the appellant on February 23, 2021. All the
    materials by the parties involved in the appeal were filed by the end of July.
    The appeal is scheduled to be heard on October 26, 2021.

[5]

Foxgate and Haldimand are opposed to the motions. Canada takes no
    position on any of the motions to intervene. Ontario consents to the motions to
    intervene by the CCLA and ALS and takes no position on 1492 WLCs motion.

[6]

In determining these motions, I must consider the general nature of the
    case, the issues that arise in the case, and
the
    contribution that the proposed intervener can make to resolving those issues
    without doing an injustice to the parties
:
Jones v. Tsige
(2011), 106 O.R. (3d) 721 (C.A.), at para. 22;
Peel (Regional  Municipality)
    v. Great Atlantic & Pacific Co. of Canada Ltd.
(1990), 74 O.R. (2d)
    164 (C.A.), at p. 167.

[7]

I am also mindful that where an appeal involves a private dispute rather
    than public law, the proposed intervener must meet a stringent standard:
Tsige
,
    at para. 23.

Nature of the Case

[8]

Foxgate owns a development site that is located on land that is the
    subject of an ongoing and long-standing land dispute between Six Nations,
    Canada, and Ontario. The appellant, Skyler Williams, argues that this site is
    unceded Six Nations land and since July 2020, a group of Indigenous
    individuals and their supporters has occupied the site.

[9]

Foxgate and Haldimand County obtained interlocutory injunctions against
    the individuals occupying the site and also those demonstrating in surrounding
    streets.

[10]

On
    August 25, 2020, the motion judge added the appellant as a defendant in the proceeding.
    The motion judge extended the interlocutory injunctions to October 9. The
    appellant filed a statement of defence.

[11]

At
    the October 9 hearing, the appellant admitted he was in contempt of court and in
    breach of the interlocutory orders. He also stated that he would remain in
    contempt of court and would continue to occupy the site. At this hearing, it
    became clear that the appellant had also tried to serve the Crown (i.e., Canada
    and Ontario) on September 18, but the documentation was not in the proper form
    and had been rejected by the court.

[12]

In
    a written endorsement dated October 16, 2020, the motion judge ruled that he
    would not permit the appellant to proceed against Canada and Ontario while the
    appellant was not in compliance with the courts orders. However, he directed
    that if the appellant did comply with the orders of the court and vacate the
    subject lands, he could reinstate himself and fully participate in the
    proceedings. The matters were adjourned to October 22, 2020.

[13]

The
    appellant then issued a Third-Party Claim on October 20, 2020 and served a
    Notice of Constitutional Question pursuant to the
Rules of Civil Procedure
and
    the
Courts of Justice Act, R.S.O. 1990, c. C.43
.

[14]

At
    the October 22 hearing, the motion judge asked the appellant if he would comply
    with permanent injunctions if the court ordered that relief in favour of
    Foxgate and Haldimand. The appellant stated that his position had not changed.

[15]

The
    motion judge then stated again that the appellant was engaged in an abuse of
    process and that the appellant was still in contempt of court. He then ordered
    that the appellants pleadings be struck. The motion judge then heard
    submissions from Foxgate and Haldimand County on the request for permanent
    injunctions and he granted those injunctions. Finally, the motion judge fixed
    and ordered costs against the appellant on a substantial indemnity scale to
    Foxgate at $117,814.18 and to Haldimand at $49,470 (plus HST).

Issues that Arise on Appeal

[16]

I
    have reviewed the factums filed by the parties on the appeal. The appellant
    asks that this court set aside the final orders made by the motion judge so
    that the injunction motion can be reheard in the Superior Court with him as a
    party and on their merits. The appellant also seeks leave to appeal the cost
    orders.

[17]

First,
    the appellant argues that, in arriving at the decision to strike his pleadings
    and terminating his further participation in the action against him, the motion
    judge failed to afford him procedural fairness.

[18]

Second,
    the appellant submits that the court also failed to consider certain principles
    that ought to apply in cases concerning civil remedies that are levied against
    Indigenous parties. Specifically, the appellant argues that the motion judge
    ought to have considered the
Gladue
sentencing principles before he
    struck the pleadings.

[19]

Finally,
    the appellant argues that, before striking the appellants pleadings, the motion
    judge ought to have considered:

·

whether, by its own admission, the courts impartiality had been
    diminished;

·

whether
amicus curiae
ought to have been appointed for
    the appellant, given that the appellant had supposedly engaged in contumacious
    behaviour that had not been purged;

·

whether the principles of abuse of process ought to have been
    conflated with contempt of court;

·

whether the prosecution of the appellants contempt ought to have
    been referred to the Attorney General to avoid the court taking on a dual role;

·

given that a finding of contempt was made on the courts own motion,
    whether the hearing ought to have been held in accordance with the principle of
strictissimi juris
, which it was not; and, among other things,

·

whether certain considerations ought to have been afforded to the
    appellant, since he is Indigenous, and had properly commenced a Third-Party
    Claim against the Crown and had served a Notice of Constitutional Question.

[20]

The
    appellant will also argue that the order made by the motion judge, directing
    that the appellant pay over $168,000.00 in legal costs, was exorbitant. He
    contends that it is based on an error in principle or is otherwise plainly
    wrong.

Proposed Contributions

Submissions of 1492 WLC

[21]

1492
    WLC is a grassroots coalition of students (Indigenous, non-Indigenous,
    settlers, immigrant settlers) and professors at the University of Windsor,
    Faculty of Law. 1492 WLC came together in the Fall of 2020 in response to the
    call to action issued by land defenders at 1492 Landback Lane, a land
    reclamation action undertaken by the appellant and many other Haudenosaunee and
    non-Haudenosaunee people. 1492 WLC has worked to provide accessible public
    legal information and research related to the reclamation, media support, court
    support, solidarity statements, and solidarity event organizing.

[22]

1492
    WLC argues that it would make a useful contribution by intervening in order to
    examine the ways in which settler colonialism in Canada has influenced the
    place of Indigenous peoples and legal orders in Canadian law, and to explore
    the ways in which the injunction remedy has been shaped by this influence. 1492
    WLC would argue that Indigenous Legal Orders should form part of the rule of law.
    1492 WLC asserts that the rule of law has been raised in the appeal and is not
    a new legal issue.

[23]

1492
    WLCs 21-page draft factum addresses the appropriateness of an injunction
    remedy in the context of land protest cases by Indigenous persons. 1492 WLC
    submits that, if this court on appeal should decide that errors by the motion
    judge require the injunction to be set aside and a new proceeding ordered, this
    court should provide guidance on various procedural and substantive matters to
    the court rehearing the matter.

[24]

1492
    WLC seeks to file a 20-page factum and be given 20 minutes of oral submissions.
    They also seek that no costs be awarded for or against them.

Submissions of ALS

[25]

ALS
    is a multi-service legal agency that provides services to the Indigenous
    community in Ontario. ALS expertise arises from its direct work with and on
    behalf of Indigenous communities. This expertise has been recognized both in
    courtrooms and in other arenas. Over the past thirty-one years, ALS has worked
    to convey Indigenous perspectives in justice-related matters. ALS has been
    granted intervener status in 26 Supreme Court cases and participated in at
    least 18 cases at this court, either as an intervener or as counsel to the
    accused.

[26]

ALS
    submits that the issues raised in this appeal will directly impact their
    clients and the Indigenous community members who face contempt of court due to
    asserting their s. 35 rights in a dispute where injunctive relief has been
    granted. According to ALS, there is a need for this court to hear from the
    broader Indigenous community, not just that of the appellant.

[27]

ALSs
    20-page draft factum highlights the following issues raised by this appeal. ALS
    submits that it can provide a distinct perspective on these three issues without
    expanding the scope of the appeal:

1.

The breadth of the analytic framework necessary to determine an
    application for injunction against members of an Indigenous community when s.
    35 interests are engaged;

2.

Why every effort must be made by the court to encourage the resolution
    of competing rights and interests; and

3.

The approach in treatment of an Indigenous contemnors participation in
    court proceedings when contempt has not been purged.

[28]

ALS
    seeks to file a 20-page factum and be given 20 minutes of oral submissions.
    They also seek that no costs be awarded for or against them.

Submissions of the CCLA

[29]

The
    CCLA is a leading national, independent, non-profit, and non-governmental
    organization dedicated to the furtherance of civil liberties across Canada. It
    was formed with the objective of promoting and advancing respect for and
    observance of fundamental human rights and civil liberties. In recognition of
    its important role, the CCLA has frequently been granted intervener status
    before courts, including this court.

[30]

The
    CCLA has substantial expertise in the areas of protecting and promoting
    fundamental freedoms, including freedom of expression, peaceful assembly, and
    association. The CCLA has frequently been involved in litigation and policy
    debates implicating the right to protest and considering the permissible nature
    and scope of state conduct in relation to protest activities, including work
    focused on the special considerations relevant to protests involving Indigenous
    people.

[31]

The
    CCLA argues that its submissions will assist the court in placing the appeal in
    a broader context and address points that are distinct from those raised by the
    parties or other proposed interveners.

[32]

The
    CCLAs 16-page draft factum makes the following three submissions that, it
    submits, provide a distinct perspective that does not expand the scope of the
    appeal:

1.

A finding of
    contempt requires that the alleged contemnor be afforded meaningful due
    process;

2.

Amicus curiae
should be appointed in requires for
ex parte
injunctive relief that significantly engage constitutional rights; and

3.

The need to consider systemic racism and discrimination before denying a
    litigant an opportunity to be heard and sanctioning the individual with a large
    costs award.

[33]

The
    CCLA seeks to file a 20-page factum and be given 20 minutes of oral
    submissions.

Prejudice

[34]

An
    overarching concern is prejudice to the parties in the appeal due to the timing
    of these motions. The proposed interveners have waited a long time to bring
    these motions given that the appeal was perfected on February 23, 2021. If the
    court were to grant leave to intervene, the respondents would only have a brief
    period of time to provide responding submissions. Although this concern is
    somewhat alleviated because all of the proposed interveners served draft factums
    in late July and early August when they brought their motions for leave to
    intervene, the reality is that the proposed intervention has been brought late
    in the day. I am of the view that there are legitimate concerns regarding
    prejudice from the late filing of motions approximately six weeks before an
    appeal that was perfected on February 23, 2021. If intervention is granted,
    materials would have to be produced to respond to the interventions. An intervention
    of this nature is meant to assist the court. The assistance can be
    significantly diminished when five additional factums
[1]
are being filed at the last minute:
Foster v. West
, 2021 ONCA 263, 55
    R.F.L. (8th) 270, at para. 18.

[35]

Foxgate
    and Haldimand argue that most of the submissions the proposed interveners seek
    to make are not relevant to the narrow procedural issue which is the subject
    matter of the appeal and that they will be prejudiced by the inordinate delay and
    increased costs that will be caused by the proposed interveners attempts to add
    substantial new arguments and issues not raised by the parties.

[36]

Foxgate
    especially opposes 1492 WLCs intervention because, it argues, that 1492 WLC
    has no standing as an unincorporated association to intervene, and 1492 WLCs
    intervention is inappropriate, given that 1492 WLC has provided support and
    legal advice to the appellant throughout the proceedings.

Discussion

[37]

I
    do not think it can be seriously argued that all three proposed interveners
    have expertise with a distinct perspective of this case. The primary
    consideration on this motion is an assessment of the contribution that each
    proposed intervener can make to the issues raised by the appellant without
    doing an injustice to the parties.

[38]

The
    submission made by Foxgate and Haldimand that the appeal is limited to whether
    any individual, whether an Indigenous person or a non-Indigenous person who is
    in contempt of the Court on their own admission is to be afforded the ability
    to advance their own claims and interests before the Court against others in
    the same proceedings is an overly simplistic characterization that is devoid
    of context. While it is true that the appeal does not relate to the merits of
    the granting of interim or permanent injunctions against the appellant and does
    not relate to the constitutionality of injunctions in relation to First
    Nations claims or contempt in First Nations cases generally, the striking of
    the appellants pleadings must be viewed in the context of the fact that it was
    an injunction proceeding that brought the appellant before the Superior Court
    of Justice.

[39]

Although
    the nature of this case is a private dispute, and a stricter onus has been applied
    to interventions in private disputes, the issues raised in this appeal involve
    broader public policy considerations that transcend the dispute between the
    immediate parties. This court has held that the more onerous threshold may be
    softened somewhat where issues of public policy arise:
Tsige
, at
    para. 23, citing
Childs v. Desormeaux
(2003), 67 O.R. (3d) 385 (C.A.),
    at paras. 3, 10;
Huang v. Fraser Hillarys Limited
, 2018 ONCA 277,
    at para. 5. While it is true this is not a case that directly involves s. 35 of
    the
Constitution Act, 1982,
in his factum, the appellant, who is
    Indigenous, will argue that the rule of law has many dimensions, including
    respect for minority rights, reconciliation of Aboriginal and non-Aboriginal
    interests through negotiations, and fair procedural safeguards. In my view, the
    appellant does raise the important public policy issues in his factum about
    whether the assertion of collective interests by an Indigenous person impacts
    the appropriateness of a decision to strike pleadings for abuse of process from
    contempt.

[40]

That
    said, all of these public policy issues are addressed in the appellants
    factum. Furthermore, the specific remedy sought by the appellant from this
    court is for the motion judges orders to be set aside so that he can
    meaningfully participate in a rehearing that will determine Foxgate and
    Haldimands request for a permanent injunction. Given the general nature of the
    case and the issues that arise in the appellants factum, I must assess the
    contribution that the proposed interveners can make to those issues and also
    keep in mind the arguments relating to prejudice advanced by Foxgate and Haldimand.

1492 WLC

[41]

In
    my view, 1492 WLC should not be granted intervener status in this case because they
    will not make a useful contribution without prejudicing the parties. Their
    draft factum solely addresses the appropriateness of a permanent injunction in
    the context of land protests by Indigenous persons. Although the context of an
    injunction proceeding is important, this issue is not before the court and it
    expands the record in a way that is prejudicial to the parties. The parties
    would be required to address a new issue so that this court can give potential
    guidance to the court below relating to permanent injunctions if it is sent
    back for a rehearing. In my view, if this court does send the case back for a
    rehearing, it is open to 1492 WLC to seek intervention status for that hearing.

[42]

In
    light of my decision to deny 1492 WLCs motion, I need not deal with Foxgate
    and Haldimands submission that 1492 WLC has no standing because they are not
    incorporated. However, that submission seems to be more of an objection that is
    one of form rather than substance. This court has rejected the submission that
    an unincorporated entity is barred from intervention:
Halpern v. Canada
    (Attorney General)
(2003), 169 O.A.C. 172 (C.A.), at para. 7. I agree with
    WLC 1492s submissions that they are not a fly-by-night organization that will
    disobey any rules and parameters set by a court and that the lack of
    incorporation by the organization should not be a bar to their proposed
    intervention.

[43]

Nor
    do I need to deal with Foxgates submission that WLC 1492 is really an
    appellant in disguise. Again, I would only make the observation that this court
    in other cases has recognized that interveners need not be impartial,
    objective or disinterested in the outcome of the case and [t]he fact that
    the position of a proposed intervenor is generally aligned with the position of
    one of the parties is not a bar to intervention if the intervenor can make a
    useful contribution to the analysis to of the issues before the court:
Oakwell
    Engineering Limited v. Enernorth Industries Inc.
, 2006 CanLII 60327 (Ont.
    C.A.), at para. 9;
Childs,
at para. 13.

ALS

[44]

Like
    1492 WLC, ALSs submissions also focus mostly on considerations of injunction
    proceedings against members of an Indigenous community when s. 35 rights are
    engaged (approx. 15 pages). In contrast to 1492 WLCs submissions which address
    the particulars of the test of an injunction, ALS does provide additional brief
    submissions that focus on the treatment of an Indigenous contemnors
    participation in court proceedings when contempt has not been purged. However,
    I am of the view that this issue will be addressed by the appellant who may
    develop the submissions made at para. 93 of his factum. In my view, the court does
    not require additional assistance from ALS on this specific issue, which is
    outlined at paras. 46 to 56 of its draft factum. Indeed, the submissions advanced
    by ALS will likely be duplicative of the appellants submissions.

CCLA

[45]

While
    the CCLA does focus on the issues before the court, their arguments about due
    process are largely duplicative of the submissions that will be advanced by the
    appellant in his appeal. I have already summarized the submissions of the
    appellant earlier in these reasons. There is considerable overlap between the
    submissions of the CCLA and the appellant. Moreover, the proposed submissions
    on the appropriateness of appointing
amicus curiae
in cases where
ex
    parte
injunctions may impact constitutional rights is also addressed by
    Ontario, a third party to this appeal. Overall, I cannot say with confidence
    that the CCLA provides a unique perspective on this particular case. The
    submissions made by the CCLA will be addressed by the parties in the appeal.

[46]

Overall,
    I am not persuaded that WLC 1492, ALS, or the CCLA have any distinct contribution
    to make in relation to this specific appeal. I am satisfied that the Indigenous
    perspective will be fully and adequately addressed by the appellant.

[47]

In
    conclusion, I agree with Foxgate and Haldimand that a substantial portion of
    the submissions proposed by WLC 1492 and ALS inappropriately expands the legal
    issues on appeal by making submissions on injunctions. With respect to the CCLA,
    I find that a substantial portion of its submissions overlaps with those made
    by the appellant. When I consider the nature of this appeal against the nature
    of the contribution that could be made to the issues in dispute, and the nature
    of the prejudice that could arise from allowing perfection of such a late
    intervention, I conclude that the motions must be dismissed.

DISPOSITION

[48]

The
    motions to intervene are dismissed.

[49]

Foxgate
    and Haldimand seek costs of these motions. In my view, this is not an
    appropriate case to order costs against the proposed interveners. The motions
    are from public interest organizations and an organization that is associated
    with a Canadian law school. There will be no order as to costs of this motion.

S. Coroza J.A.





[1]

Foxgate and Haldimand would likely file separate factums.


