



COURT OF APPEAL FOR ONTARIO

CITATION:
    Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910

DATE:
    20211221

DOCKET:
    C68873

Doherty,
    Miller and Sossin JJ.A.

BETWEEN

Foxgate
    Development Inc.

Plaintiff
    (Respondent)

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
)

Barry L. Yellin, Wade Poziomka and Nick
    Papageorge, for the appellant

Paul Demelo, for the respondent Foxgate
    Development Inc.

Woody McKaig, for the respondent The
    Corporation of Haldimand County

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

Owen Young and Andrew Law, for the
    third party Attorney General of Canada

Heard: October 26, 2021 by video
    conference

On appeal from the judgment of Justice
    R. John Harper of the Superior Court of Justice, dated October 22, 2020, with
    reasons reported at 2020 ONSC 6529, 12 M.P.L.R. (6th) 129.

Sossin J.A.:

OVERVIEW

[1]

This appeal concerns the requirements of
    fairness where a courts own motion results in an order striking the pleadings
    of a self-represented party.

[2]

Skyler Williams (Mr. Williams) is Haudenosaunee
    and resides at the reserve situated at Six Nations of the Grand River. Mr.
    Williams was added as a named defendant in interlocutory injunction proceedings
    brought by Foxgate Developments Inc. (Foxgate).

[3]

The motion judge found that Mr. Williams, an
    alleged leader of a group of protestors occupying land where Foxgate was
    developing a housing project (the subject lands) in Haldimand County, was in
    defiance of court orders. On that basis, the motion judge determined that Mr.
    Williams was in contempt of court and had engaged in an abuse of process. Mr.
    Williams pleadings, including his statement of defence, his notice of Constitutional
    question, and third-party actions against the federal and provincial Crown,
    were ordered struck in the main action on the courts own motion.

[4]

The motion judge granted the permanent
    injunction sought by Foxgate and ordered costs in excess of $168,000 against Mr.
    Williams.

[5]

For the reasons that follow, I would allow the
    appeal on the basis that the motion judge failed to afford Mr. Williams the
    procedural fairness required by law before making an order striking his
    pleadings and foreclosing his further participation in the proceedings.

BACKGROUND

[6]

After purchasing the subject lands in 2015,
    Foxgate notified representatives of the Six Nations of the Grand River (Six
    Nations) and the Mississaugas of New Credit First Nations of its intent to
    develop these properties as part of the regulatory process. Archeological
    investigations of the subject lands were undertaken in consultation with these
    First Nations, and uncovered no areas of concern. In 2019, Foxgate entered into
    a Definitive Agreement with the Six Nations Elected Counsel and the
    Mississaugas of New Credit. This agreement transferred 42 acres of land to the
    Six Nations. It also paid funds in trust for land development for Six Nations.

[7]

Protestors began attending the subject lands in
    July of 2020. Foxgate commenced this action by way of the Notice of Action on
    July 27, 2020. It sought, among other things, an interim and interlocutory
    order enjoining the John and Jane Doe defendants from obstructing the
    subject lands which it planned to develop. It alleged that the then un-named
    personal defendants had engaged in trespass and other efforts to obstruct the
    development of the subject lands.

[8]

Foxgate brought a motion on an
ex-parte
basis before the motion judge and received an interim and interlocutory
    injunction order on July 30, 2020. The order enjoined the obstruction and
    trespass on the subject lands, and further ordered the removal of structures on
    and any barricades to the lands, along with other relief.

[9]

The respondent Corporation of Haldimand County
    (Haldimand), also brought a motion before the motion judge seeking interim
    and interlocutory injunctive and mandatory relief to have certain barricades
    and other obstructions removed from a street in Caledonia.

[10]

Based on these
ex-parte
motions, orders
    for interim injunctions were granted to both Foxgate and Haldimand (the
    respondents). Notwithstanding these orders, the situation on the subject
    lands deteriorated. The motion judge found that the protestors continued to
    occupy the subject lands, refused to allow anyone representing Foxgate or its
    building partners to attend the property, and refused to permit work in
    preparation for the implementation of utilities on the land (such as where the
    gas lines would run). The protesters were also building structures on the
    property, and fires were set. When fire fighters arrived, they were met by
    rocks thrown by protestors. The motion judge found the situation constituted a
    risk to public safety.

[11]

The matter returned to court on August 25, 2020.
    There, Foxgate sought an order to continue the injunction, and to add Mr.
    Williams as a party to the action on the basis of an affidavit filed by a
    Foxgate executive which characterized Mr. Williams as a protest leader.

[12]

A lawyer, who advised the court that he had not
    yet been retained by Mr. Williams, attended on Mr. Williams behalf via
    Zoom. He asked for a brief adjournment to review the materials, but the motion
    judge denied his request and ordered that Mr. Williams be added as a party.

[13]

Following the August 25, 2020 hearing, Mr.
    Williams was formally added to the proceeding through an amendment to the
    Notice of Action. Thereafter, Foxgate served and filed a Statement of Claim
    against him, and Mr. Williams served and filed a Statement of Defence on his
    own behalf. While it appeared that Mr. Williams had intended to retain counsel,
    in the end he did not do so.

[14]

Prior to the matter returning before the motion
    judge, the OPP provided evidence, through the affidavit of the Regional
    Commander for the West Region, of the increasingly tense standoff that had
    developed around the subject lands, including the potential for further violence.
    The OPPs evidence was that two officers were assaulted on August 5, 2020, and
    that some of the protestors were arrested for refusing to leave the property.

[15]

Mr. Williams tendered evidence by way of two
    affidavits filed with the court and served upon the parties. In them, Mr.
    Williams stated, I am a Haudenosaunee man who does not belong before this
    colonial court. These affidavits summarized the history of the subject lands,
    the duties he believed he was under according to Haudenosaunee law, the need
    for reconciliation and the duty to consult, as well as his position on
    irreparable harm with respect to the injunction.

[16]

On October 9, 2020 the parties again attended
    court. Mr. Williams participated in the hearing, and was permitted to
    cross-examine the OPP witness on his evidence.

[17]

While Mr. Williams attended court, he made clear
    that he was not abiding by the interim injunction that had been ordered and did
    not intend to comply with future court orders.

[18]

The motion judge inquired whether counsel for
    Foxgate intended to bring a motion to strike Mr. Williams participation in the
    proceedings as a result of Williams non-compliance with court orders. Counsel
    for Foxgate stated they had no such intent.

[19]

Regardless, the motion judge found, on his own
    motion and based on his inherent jurisdiction, that Mr. Williams had admitted
    he was in contempt of court orders and that this contempt constituted an abuse
    of process. Accordingly, the motion judge prevented Mr. Williams from further
    participation in the proceedings. He added that, if Mr. Williams and his
    followers were to comply with the injunction orders, vacate the subject lands
    and agree to be bound by the orders of the court, Mr. Williams could be
    reinstated and fully participate in the proceedings.

[20]

The parties returned on October 22, 2020. Mr.
    Williams position with respect to the court orders had not changed, and he
    continued to assert that he had no ability to direct the conduct of other
    protestors who were occupying the subject lands.

[21]

In orders following that hearing, the motion
    judge struck Mr. Williams pleadings in the injunction, including his
    third-party actions against Canada and Ontario, and granted a permanent
    injunction to the respondents.

ANALYSIS

[22]

Mr. Williams raises the following issues on this
    appeal:

1.

that the motion judge erred in finding Mr.
    Williams in contempt without affording him the procedural safeguards required
    by law, and that the motion judge conflated his finding on contempt with his
    finding on abuse of process;

2.

that the motion judge failed to consider Mr.
    Williams status as an Indigenous person before the court;

3.

that the motion judge lacked impartiality and
    should have considered the appointment of an
amicus curiae
; and

4.

that the exorbitant costs imposed on Mr.
    Williams constituted an error in principle and was plainly wrong.

[23]

Each issue is addressed below.

The motion judge failed to afford Mr.
    Williams procedural fairness

[24]

The motion judge justified his order striking
    Mr. Williams pleadings on the basis of contempt and abuse of process. The
    motion judge appeared to view these distinct areas of law interchangeably.

[25]

In explaining the basis for the abuse of process
    finding in his reasons of October 16, 2020, reported at 2020 ONSC 6244, 8
    M.P.L.R. (6th) 144, the motion judge explains:

[50] 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.

[51]
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 Skylar 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.

[26]

The above paragraphs suggest that the motion
    judge disallowed Mr. Williams participation in the proceedings on the
    basis of abuse of process. However, in his subsequent reasons assessing whether
    Mr. Williams should be reinstated, the motion judge refers to the importance
    of the courts contempt powers, citing the reasons of McLachlin J. (as she then
    was) in
United Nurses of Alberta v. Alberta (Attorney General)
, [1992]
    1 S.C.R. 901, at p. 931.

[27]

Similarly, during the October 22, 2020 hearing,
    as part of the motion judges finding that Mr. Williams would not be
    reinstated, he stated [t]here will be no further participation. Mr. Williams
    is in contempt and continues to be in contempt. And contemptuous individuals
    cannot have access to the court.

[28]

Additionally, in his reasons of October 29, 2020,
    the motion judge stated, at para. 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.

[29]

This conflation of contempt and abuse of process
    itself constituted an error, for reasons detailed below. However, whatever the
    basis for the motion judges order to strike Mr. Williams pleadings and
    foreclose his participation in the proceedings, Mr. Williams was entitled to
    procedural fairness. This obligation of fairness is contextual. In this case,
    the context included:

·

Mr. Williams was brought into this litigation by the respondents
    and pursuant to a court order. The motion judge refused to grant a 24-hour
    adjournment to allow a lawyer appearing on Mr. Williams behalf (though not retained
    at that point) to review the materials;

·

The process culminating in the removal of Mr. Williams from the
    proceeding was instigated by the court;

·

Mr. Williams was self-represented;

·

Mr. Williams is Indigenous, and the issues he raised engage
    substantial questions that concern both the rule of law and the
sui generis
nature of Indigenous legal claims; and

·

The very serious consequences to Mr. Williams, which flowed from
    the order made against him.

[30]

Against this contextual backdrop, as I explain
    below, Mr. Williams was denied the procedural protections to which he was
    entitled under the law of contempt and with respect to a finding of abuse of
    process.

(1)

The finding of contempt

[31]

The courts contempt authority is procedurally
    and substantively distinct from its authority to make a finding of abuse of
    process.

[32]

The hearing of a motion for contempt is usually
    bifurcated, with a first hearing to consider whether contempt is established,
    and a second hearing to determine the appropriate sanction for the contempt (if
    the contempt is not purged in the interim): see
College of Optometrists of
    Ontario v. SHS Optical Ltd
., 2008 ONCA 685, 300 D.L.R. (4th)
    548, at para. 73, leave to appeal refused, [2008] S.C.C.A. No. 506.

[33]

The nature and criteria for a contempt order
    were set out by this court in
Bell ExpressVu Limited Partnership v. Torroni
,
    2009 ONCA 85, 94 O.R. (3d) 614:

[20] A finding of contempt of court is a
    serious matter that is quasi-criminal in nature. It is "first and foremost
    a declaration that a party has acted in defiance of a court order":
Pro
    Swing Inc. v. Elta Golf Inc
., [2006] 2 S.C.R. 612, [2006] S.C.J. No. 52,
    at para. 35. The potential penal sanctions facing a contemnor underscore the
    seriousness of such a finding. As the Supreme Court of Canada has observed,
    "[t]he penalty for contempt of court, even when it is used to enforce a
    purely private order, still involves an element of 'public law', in a sense,
    because respect for the role and authority of the courts, one of the
    foundations of the rule of law, is always at issue":
Pro Swing
,
    at para. 34, citing
Vidéotron Ltée v. Industries Microlec Produits Électroniques
    Inc.
, [1992] 2 S.C.R. 1065, [1992] S.C.J. No. 79, at p. 1075 S.C.R.
    This court has recently reaffirmed these principles in
Chiang (Trustee of)
    v. Chiang
(2009), 93 O.R. (3d) 483, [2009] O.J. No. 41, 2009 ONCA 3, at
    paras. 10-11. It is for these reasons that motions for contempt are often said
    to be
strictissimi juris
, i.e., that all proper procedures must be
    strictly complied with: see
Dare Foods (Biscuit Divisions) Ltd. v. Gill
,
    [1973] 1 O.R. 637, [1973] O.J. No. 21 (H.C.J.);
Toronto Transit
    Commission v. Ryan
(1998), 37 O.R. (3d) 266, [1998] O.J. No. 51 (Gen.
    Div.).

[21] The three constituent elements of the
    test for civil contempt were summarized by this court in
Prescott-Russell
    Services for Children and Adults v. G. (N.)
(2006), 82 O.R. (3d) 686,
    [2006] O.J. No. 2488 (C.A.), at para. 27:

The criteria applicable to a contempt of
    court conclusion are settled law. A three-pronged test is required. First, the
    order that was breached must state clearly and unequivocally what should and
    should not be done. Secondly, the party who disobeys the order must do so
    deliberately and wilfully. Thirdly, the evidence must show contempt beyond a
    reasonable doubt. Any doubt must clearly be resolved in favour of the person or
    entity alleged to have breached the order (citations omitted).

See also with respect to the
    substantive criteria of contempt,
Carey v. Laiken
, 2015 SCC 17,
    [2015] 2 S.C.R. 79, at paras. 32-35.

[34]

Mr. Williams admission that he was in
    contempt does not permit the court to circumvent the procedural protections
    which accompany a contempt proceeding, nor does such an admission, in and of
    itself, meet the criteria for a finding of contempt.

[35]

Mr. Williams, who was self-represented at the
    time the motion judge initiated the proceedings to disallow his participation,
    was never made aware of the precise conduct that formed the subject of the
    alleged contempt, nor was it clear what Mr. Williams referred to when he
    acknowledged to the motion judge that he was in contempt.

[36]

At the time Mr. Williams made this statement, he
    was not present on the subject lands. Was Mr. Williams contempt his prior
    breaches of the interim injunctions involving the subject lands, or was it his assertion
    that he would not follow future court orders? Did Mr. Williams alleged
    contempt relate to his own conduct or his influence over the conduct of others?

[37]

While the scope of Mr. Williams admission is
    unclear, the motion judges finding of contempt appeared to include both Mr.
    Williams and his alleged followers, and related both to current and future
    court orders. The motion judge stated in his reasons of October 16, 2020:

[51] While Skylar 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
. [Emphasis added.]

[38]

Additionally, the motion judge did not inform Mr.
    Williams of the criteria for contempt or the applicable evidentiary standard,
    nor was he advised of the potential consequences of such a finding. Further,
    the motion judge failed to instruct himself on the process to be followed or
    the evidentiary standard to be applied in a contempt motion.

[39]

The motion judge admitted and appeared to rely
    on evidence, such as a video that Mr. Williams argued was filmed at his own
    house, which was not properly led by the respondents. The motion judge
    interpreted this video as evidence that Mr. Williams was on the subject lands
    in defiance of the interim injunction. The motion judge failed to advert to the
    problems in considering such untested evidence, nor did he consider the well
    settled principle that any doubt in evidence in contempt proceedings must be
    resolved in favour of the person alleged to be in contempt: see
Prescott-Russell
    Services for Children and Adults v. G. (N.) et al
(2006), 82 O.R. (3d) 686
    (C.A.), at para. 27.

[40]

Mr. Williams relies on
Henco Industries Ltd.
    v. Haudenosaunee Six Nations Confederacy Council
(2006), 82 O.R. (3d) 721
    (C.A.), as authority for the requirement of procedural fairness in the contempt
    process. In
Henco
, which also involved protestors from an Indigenous
    community found in contempt for occupying land subject to a court injunction,
    this court set aside criminal contempt convictions on the basis that those
    subject to the orders had not been given procedural fairness. They had been
    convicted of criminal contempt without ever participating in a proceeding
    against them or being given an opportunity to explain why the contempt finding
    was not merited.

[41]

While this is a case of civil contempt, the
    requirement that a person subject to contempt proceedings have a fair
    opportunity to answer the allegations against them is equally applicable.

[42]

Notwithstanding this context, Mr. Williams was
    not given an opportunity to address his alleged contempt. While prohibited from
    fully participating in the proceedings, Mr. Williams did raise the importance
    of considering contempt within the context of his rights as an Indigenous
    person generally and the
Gladue
principles specifically. The motion
    judge refused to consider these submissions.

[43]

At the hearing of October 9, 2020 Mr. Williams
    responded to the motion judges question about his defiance of the interim injunction
    order, and his belief that the proceedings before the motion judge should have
    been considered in the broader context of his rights as an Indigenous person,
    stating:

I am in contempt and, of, of your order and
    its not something that Im disputing. What I am asking though is that this
    Court consider the Application of
Gladue
principles. [T]hose
Gladue
principles I think set out very clearly the inherent prejudice from the
    systemic problem that, and the prejudices that are both in this court and criminal
    court. I think the Truth and Reconciliation Commission calls to action speaks
    very much at length of all of those things. I think that all of those, all of
    those processes that have happened including the one
Gladue
, that
    speaks to nothing but the prejudicial nature of the, of the courts against our
    Indigenous people.
And so I think by limiting my ability
    to come to the court today and the open way that I have to be able to answer to
    this injunction and speak in my defence I think would further create that
    divide
. Your Honour has stated on the, the 25
th
[of August]
    that my failure to participate in the court proceedings was our failure to
    participate in reconciliation and so now that Im here, I think that it is, it
    would be, it would paint the Court in a bad light and certainly, certainly by
    making an order that sees me not able to defend myself here. [Emphasis added.]

[44]

Mr. Williams affidavits, dated October 5, 2020,
    expanded on his belief that his presence on the subject lands was in
    furtherance of his legal obligations as a Haudenosaunee man, his interpretation
    of the Nanfan Treaty of 1701, and that he and his people would suffer
    irreparable harm if the injunction sought by the respondents were to be
    granted.

[45]

The motion judge was not open to constitutional
    arguments or arguments rooted in Indigenous law being raised as part of either
    the contempt or abuse of process determinations or the injunction proceedings.
    He explained, in his October 16, 2020 reasons:

[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.

[46]

In light of the motion judges decision to
    strike the third-party actions, the Attorneys General for Ontario and Canada
    made submissions before this court on appeal. Canada argued that the motion
    judge vitiated Mr. Williams right to make a full answer and defence to the
    allegations of contempt against him. Canada claimed that the motion judge
    compounded his error by failing to answer Mr. Williams Constitutional
    question as part of his consideration of penalties and of the permanent
    injunction. Similarly, the Attorney General for Ontario submitted that Mr.
    Williams was entitled to procedural safeguards, especially since his contempt
    was not in the face of the court. This type of contempt, it continued,
    entitles the alleged contemnor to the same procedural safeguards as an accused
    person in a criminal proceeding. Both third parties agree that the motion judge
    denied Mr. Williams right to procedural fairness such that this court should
    intervene.

[47]

I agree. The motion judge erred in denying Mr.
    Williams the procedural safeguards to which he was entitled under the law of
    contempt.

(2)

The finding of abuse of process

[48]

Since the motion judges finding of contempt
    cannot stand, his reliance on that contempt as a basis for abuse of process
    also constituted an error. Even aside from his reliance on contempt, however, the
    motion judge failed to afford Mr. Williams procedural fairness in relation
    to the abuse of process finding.

[49]

The motion judge relied on his inherent
    jurisdiction as a basis for his finding of abuse of process. He justified the
    finding by referring to Mr. Williams flagrant defiance of court orders.

[50]

Once again, the motion judge rejected the
    relevance of Mr. Williams arguments in relation to Indigenous rights with
    respect to his finding of abuse of process. He stated in his reasons of October
    16, 2020:

[47] As I indicated in my ruling on August 21
st
,
    2020, this is not a land claim. The time for that with respect to these lands
    has long since passed. There are other venues to assert claims for
    compensation.
However, this case is not the proper time
    and place that the defendants can make those claims. Certainly, they should not
    be able to do so when they are in open defiance of the Court and its process.
    The defendants have chosen a path that, in my view, is in fact an abuse of
    process
. [Emphasis added.]

[51]

In addition to striking Mr. Williams statement
    of defence to the permanent injunction, the motion judge also struck Mr.
    Williams third party actions and notice of Constitutional questions against
    Canada and Ontario. Accordingly, Mr. Williams not only lost the opportunity to
    raise constitutional objections to the contempt and abuse of process findings,
    and with respect to the injunction, the motion judge also precluded Mr.
    Williams from arguing that either or both Crown third party defendants should
    be responsible for any costs flowing from his involvement in the main action,
    among other arguments.

[52]

The motion judge erred by making this order on
    the basis of an abuse of process without providing Mr. Williams a fair
    opportunity to be heard.

Conclusion

[53]

In light of this analysis, Mr. Williams was
    denied fairness in the following ways:

·

The motion judge did not take appropriate steps
    to put Mr. Williams on notice as to the exact nature of the proceeding against
    him (whether contempt, abuse of process, or both), and the criteria to be
    considered in that proceeding;

·

The motion judge did not provide particulars of
    the exact conduct in issue (whether Mr. Williams status as the leader of the
    protestors, or his own conduct);

·

The motion judge did not set out for Mr.
    Williams the potential consequences of his impugned conduct, including exposure
    to costs;

·

The motion judge did not give Mr. Williams an
    opportunity to consult with and retain counsel in respect of the contemplated
    order before the motion judge actually made the order; and

·

The motion judge did not give Mr. Williams an
    opportunity to respond to the particular allegations against him before making
    any order.

[54]

The requirements of fairness in the context of
    this proceeding constituted an independent right of Mr. Williams. It is no
    answer to the denial of these rights to say a fair opportunity to be heard
    would have made no difference in the outcome. As Le Dain J. stated in
Cardinal
    v. Kent Institution
, [1985] 2 S.C.R. 643, at p. 661:

I find it necessary to affirm that the denial
    of a right to a fair hearing must always render a decision invalid, whether or
    not it may appear to a reviewing court that the hearing would likely have
    resulted in a different decision. The right to a fair hearing must be regarded
    as an independent, unqualified right which finds its essential justification in
    the sense of procedural justice which any person affected by an administrative
    decision is entitled to have. It is not for a court to deny that right and sense
    of justice on the basis of speculation as to what the result might have been
    had there been a hearing.

[55]

The narrow exception to this principle carved
    out in
Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum
    Board
, [1994] 1 S.C.R. 202, at p. 228, does not apply here, as there was
    no inevitable outcome to these proceedings. Consequently, the order striking
    Mr. Williams pleadings must be set aside.

[56]

While these conclusions are sufficient to
    dispose of the appeal, I will briefly address Mr. Williams other grounds of
    appeal.

Was the motion judge obligated to consider
    appointing an
amicus curiae

[57]

Mr. Williams submits that the motion judge
    should have considered appointing a lawyer as an
amicus curiae
once it
    was clear that Mr. Williams was self-represented and in light of the motion
    judges candid reflections on his own challenge in maintaining impartiality.

[58]

Mr. Williams points to the motion judges
    explanation of his challenge in his reasons from October 16, 2020, when he
    stated:

[40] Ethical duties of judges require judges
    to assist in informing self-represented litigants of the process without
    impacting the judges ability to be an impartial decision-maker that is
    difficult at the best of times.
In this case, it is a
    herculean task, if not an impossible one
. In this case, Mr. Williams
    comes to Court with a view that he does not belong in this Colonial Court and
    that he will disobey any orders that the Court makes. [Emphasis added.]

[59]

The appointment of an
amicus curiae
is
    a rare step, wholly within the discretion of the presiding judge: see
Morwald-Benevides
    v. Benevides
, 2019 ONCA 1023, 148 O.R. (3d) 305, at paras. 22-23, 37.

[60]

In my view, the motion judge did not commit any
    error in failing to consider the appointment of
amicus
counsel to advise
    the Court. At no point did the motion judge conclude that he lacked the
    requisite impartiality to decide the motion fairly. While
amicus
counsel could have been helpful in advising the motion judge on the proper
    process to follow in a contempt or abuse of process motion, this was simply one
    of several tools at the motion judges disposal. There was no legal obligation
    on the motion judge to consider or pursue this option.

[61]

I note that, given that Mr. Williams was
    self-represented, and that the motion at issue was by the court and so lacked
    an adversarial context, counsel for the respondents also could have provided
    guidance to the motion judge on the procedural protections to which Mr.
    Williams was entitled. Indeed, counsel for Foxgate advised the motion judge
    that, in his role as an officer of the court, his position was that the Court
    always has jurisdiction to use its inherent jurisdiction, its authority under
    the rules and under the
Courts of Justice Act
and under common law
    principles to deal with abuse of process.

Was the award of costs unreasonable?

[62]

In light of the motion judges error in
    conflating contempt and abuse of process, and denying Mr. Williams a fair
    opportunity to be heard, the motion judges orders on appeal must be set aside.
    Consequently, the award of costs by the motion judge will also be set aside.

[63]

While unnecessary to examine the cost awards in
    detail, it will suffice to say the motion judges cost awards against Mr.
    Williams in favour of Foxgate (in the amount of $117,814.18 inclusive of fees,
    disbursements and HST) and Haldimand (in the amount of $49,479 plus HST of
    $870.67) were problematic for three reasons.

[64]

First, the costs ordered include time spent by
    the respondents on the injunction motion prior to Mr. Williams being added as a
    party to the proceeding on August 25, 2020. I do not see how Mr. Williams could
    reasonably be responsible for costs pre-dating his involvement.

[65]

Second, the quantum of costs appears inordinate,
    particularly given the duplication in the arguments by the two respondents, the
    absence of any adversarial context, and the fact that Mr. Williams was
    self-represented.

[66]

Third, because of the motion judges decision to
    disallow Mr. Williams participation in the motion, the decision on costs was
    made without any opportunity for Mr. Williams to make submissions on the issue.
    This denial of fairness taints the motion judges decision on costs.
    Additionally, the motion judge referred to Mr. Williams admission of
    contempt as well as his (and his followers) contemptuous conduct as factors
    considered in finding that Mr. Williams had acted in bad faith, and in the
    calculation of the costs award: see the October 29, 2020 reasons, at paras.
    129-130.

[67]

If it were necessary to do so, I would find the
    motion judge erred in principle in making the costs award against Mr. Williams.

DISPOSITION

[68]

As a result of the motion judges error in
    conflating contempt and abuse of process, and the denial of a fair opportunity
    to Mr. Williams to be heard, the motion judges orders granting the permanent
    injunction and striking Mr. Williams pleadings in the action are set aside.

[69]

The cost awards imposed by the motion judge
    against Mr. Williams are also set aside. Costs relating to the proceedings
    before the motion judge, if any, will be left to the judge who ultimately hears
    these matters to determine. In all the circumstances, this should be a
    different judge than the motion judge.

[70]

The parties have agreed that the successful
    party on this motion would receive costs of $20,000, all-inclusive. Therefore,
    the respondents will together pay costs of $20,000 to Mr. Williams (to be
    apportioned between the respondents as they determine), payable within 30 days
    of the release of these reasons.

Released: December 21, 2021 D.D.

Sossin J.A.

I agree.
Doherty
    J.A.


I agree.
B.W.
Miller J.A.


