John Voortman & Associates v. HCCC, HMF (Hagersville occupation, April 2009)

Caledonia Lawsuits & Court Actions>Illegal Occupations & Land Claims>John Voortman & Associates v. HCCC, HMF (Hagersville Occupation, April 2009)

John Voortman & Associates v. HCCC, HMF (Hagersville occupation, April 2009)

Plaintiff: JOHN VOORTMAN & ASSOCIATES LIMITED

Defendant: 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

DECISION: PLAINTIFF (Property Owner)

SUPERIOR COURT OF JUSTICE – ONTARIO

Injunction Order, April 03/09: [PDF]
Reasons for Decision, April 03/09: [PDF]
Endorsement on Costs, June 12/09: [PDF]

INJUNCTION ORDER

[1] the court orders an injunction against the HMF’s illegal occupation.

[2] Voortman has title and no other person can claim ownership of it.

[3] the court orders the OPP to assist the Sheriff to enforce the order.

[4.1] Voortman and its contractors “may use reasonable force to prevent any person from trespassing…or to remove any trespassers…”

[4.2] Voortman can “use reasonable force to prevent any person from obstructing the entry or egress of the Plaintiff and its contractors…”

[4.3] Voortman can use “reasonable force to remove any barricade, vehicle or other property from the property…and…from the points of entry and egress…”

[5] Voortman “shall not be held liable for any damage arising from any use of reasonable force to remove property pursuant to an Order made by this Court.”

[6] “THIS COURT ORDERS THAT nothwithstanding any municipal by-law the Plaintiff…may: build…a temporary fence no more than 12 feet high…at the Plaintiff’s sole discretion; may place a coil of barbed wire at the top of any fence erected;…”

REASONS FOR DECISION

RULINGS CITED:

re ‘Duty to Consult’: Haida Nation v. British Columbia (Supreme Court of Canada, 2004).
re Haldimand Tract: – Isaac v. Davey (Ontario Court of Appeal, 1974).
re injunctions in context of aboriginal rights: Frontenac Ventures v. Ardoch Algonquin First Nation (Ontario Court of Appeal, 2008).
re Crown Patents in context of aboriginal rights: The Chippewas of Sarnia Band v. Canada, (Ontario Court of Appeal, 2000).

ISSUES:

Order to end illegal occupation by native protesters from Haudenosaunee Men’s Fire (HMF) [88].
OPP officers refused to remove occupiers. [18]
HMF engaged in Extortion, Intimidation, Nuisance, Trespass, Inducing Breach of Contract. [78]
HMF informed owner he must give property to them and lease land back or face occupations. [28-30]
HMF informed owner they would not obey any court order. [29]
HMF subjected owner to “angry racial attack against “white people”. [29]
HMF threat to the Court. [85]
Only entities recognized to speak for Six Nations are Six Nations Council and Six Nations Chiefs. [73]
No Six Nations ownership of Haldimand Tract (Ontario Court of Appeal: Isaac v. Davey, 1974 ) [45]
No Six Nations claim for title/possession of Haldimand Tract, only for damages. [50, 76]
Six Nations Council letter, Dec 04/08: did not condone actions of HMF and HDI (Haudenosaunee Development Institute). [22]
Crown fulfilled ‘duty to consult.’ [69, 75]
No duty to consult with “yet another aboriginal group.
Duty to consult is duty of the Crown, not the duty of third party land owners. [62]
Frontenac Ventures (2008): cannot be interpreted to require exhaustive consultations “about every parcel of private land in the Haldimand Tract.” [63-64]
Frontenac Ventures (2008): Court of Appeal could not have meant every land owner in Haldimand Tract could be subjected to occupations. [64]
All people in Canada governed by rule of law as per Preamble to Charter of Rights. [84]
Aboriginal rights under Charter do not confer a right to break law. [87]
“It is important…that one set of laws apply to all of the people in this Province.” [42]
“HMF will be required to obey any court order, just as any other person in Canada would be required…” [87]
Owner may use reasonable force to prevent any person from trespassing, and to remove trespassers in accordance w/Criminal Code. [90]

EXCERPTS:

THE RULE OF LAW

[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.

[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.

ENDORSEMENT ON COSTS

[17] Therefore, it is hereby ordered that the members of the Haudenosaunee Men’s Fire of Grand River pay to the plaintiff its costs of this motion fixed at $19,089.91, payable within 30 days.

BACKGROUND/NOTES

On April 03/09 Hagersville developer John Voortman was granted an injunction against native occupiers from the Haudenausaunee Men’s Fire who had shut down his townhouse development and threatened violence if the court ruled against them. It took Justice Henderson 45 minutes to read the reasons for his ruling, a ruling that completely vindicated the information that CANACE published nearly one year ago in our report, Legalized MYTHS of Illegal Occupations. Take some time to compare the judge’s comments with our MYTHS report and…be prepared to be amazed, especially since the authors (Gary McHale & Mark Vandermaas) are not lawyers.

REFERENCES