Rule of law issues drive class action

Launching litigation is always a roll of the dice, no matter how strong the players think their cases might be - but when you take on the government the risks are always higher.

John Findlay knows it all too well.
He’s in the midst of a gamble with all the elements of a Hollywood classic: small-town lawyer reluctantly cast as David takes on the Goliath of the Ontario government, in an effort to right a politically motivated wrong in a case that has already scared off seasoned solicitors screaming.

Okay, maybe Hamilton isn’t such a small town. That’s the Hollywood version, and the script doesn’t have an ending yet, though the first reel has been riveting.

Findlay, who has been practicing for 28 years and has four other class actions under his belt, most notably Menegon v. Philip Services Corp. et al., is now driving a class action suit on behalf of residents, contractors, and businesses affected by the blockade of Caledonia by local aboriginals over a land dispute that is dragging into its third year.

“A group of people approached me about this case after having been to some pretty experienced firms, which do a lot of class actions, [that] wouldn’t go near it,” says Findlay, who practises with his wife, Margaret McCarthy, as Findlay McCarthy LLP in Hamilton.

“I consulted, as I always do, with my friend John McDonald in Cambridge, at McDonald Ross. John and I have a working protocol that if we have a class action we try and work as a team, but John said he was reluctant because it was the government,” he says.

What triggered his acceptance and decision to go it alone was that he lives in the area and his own discomfort at the rule of law being ignored.

“This isn’t about the natives - many people in the area are sympathetic with the issues and, indeed, businesses depend on the Six Nations,” says Findlay, who, given his background in economics, knows a risks-benefit analysis as well as anyone. “It’s a rule of law issue.”

The Caledonia standoff, of course, is a twisted tale of anarchy and a political nightmare from which there seems no escape. It began with aboriginal protestors from the nearby Six Nations erecting tents and a shack on a construction site on Feb. 28, 2006, claiming the development to be on native land.

Within two weeks, the developer, Henco Industries, obtained an injunction ordering the protestors to leave, but they ignored it.

A month later, Ontario Provincial Police moved in to clear the site and make arrests, but it only served to aggravate tensions. Within hours several hundred protestors moved in, bringing with them the radical Mohawk Warrior factions.

Since then, the dispute has dragged on despite several attempts to negotiate an end. It has inflamed local residents, many of whom have been forced from their homes, and there have been several confrontations and many violent incidents.

Perhaps no one is more infuriated than Ontario Superior Court Justice David Marshall, who issued the court order to remove the protestors. In May 2006 he took the unusual step of calling the parties back to his court, demanding to know why the OPP had not enforced his judgment.

Later that summer he went further, ordering an end to all negotiating between the sides until the protestors complied with his original order. The province appealed and had the order set aside.

Little else has changed. The community is split and disrupted, several residents have been beaten and often hospitalized by thugs masquerading as “protestors,” businesses are failing, and the government refuses to take strong action, fearing a repeat of the Ipperwash native protest where a native was shot to death by police in 1995.

Though they couldn’t have anticipated it at the time, the class action launched June 12, 2006 has gathered momentum with each day the dispute continues.

“There are only two roads through Caledonia and Argyle Street and Highway 6, and the protestors shut them down at one time or another,” says Findlay. “There’s all kinds of old laws about keeping public thoroughfares on the books too.”

There are four classes proposed: the Caledonia businesses who have been affected by the closure of Argyle Street, the occupation by protestors of the Douglas Creek Estates, or the interruption of hydro service; property owners; contractors and subcontractors working on the development; and anyone on Highway 6 whose business or activities were disrupted.

The case has survived some of the typical initial skirmishes, Findlay says, and the claim against Haldimand County has been dismissed. A similar motion by the attorney general to strike the statement of claim was rejected by Justice David Crane, but that decision is being appealed, further delaying certification, says Findlay.

The result of the appeal, of course, says Findlay, is more delay that plays directly into the overall government strategy to stall the matter as long as possible.

Recognizing the risk of the action, however, Findlay and the core plaintiffs have set up a contingency fund, which is soliciting donations, in the event the case fails and they are faced with footing the tab under Ontario’s costs regime.

He says the first $10,000 is being targeted for disbursements, and the rest is being administered by a group of trustees. If the case succeeds, the plan is to return funds on a proportional basis to donors plus interest. If it fails, the money will go towards costs.

While the prospect of taking on a “deep pocket” adversary is daunting, he says, it’s a unique use of the class action process and a route to seek justice that those adversely affected by the turmoil could not have otherwise individually afforded - more so given the resources and position the Ontario government.

“It’s also an issue of contracted policing,” he says, noting many small towns policed by the RCMP or OPP are watching the Caledonia developments.

Caledonia’s policing services are provided by the OPP, but the agency is in fact an extension of the province itself and, as events have shown, its mandate has been politicized. Provincial interests have trumped local interest.

The ripple effect has also been economically damaging. “The CAO of Halidmand says the region has lost $35 million in development,” he says. “It’s really killed development. That may not sound like a lot, but here it is, and there’s another $800,000 in annual revenues lost too.”

As for the prognosis, he’s not naive about his chances but already sees some benefits.
“There’s a high risk we could get beat up, but if we’re successful, we’ll do well,” says Findlay, whose practice is about half litigation, with the balance being corporate and commercial with some marine and real estate work. His wife deals with matrimonial.

“Though we didn’t expect it, taking this on has brought other business to us,” he adds.

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