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Motion judge failed to afford self-represented litigant ‘procedural fairness,’ court rules

Friday, December 24, 2021 @ 8:23 AM | By Amanda Jerome


The Court of Appeal for Ontario has determined that a self-represented litigant was not afforded “the procedural fairness required by law” by a motion judge who made an order to strike pleadings and foreclose the self-rep’s further participation in proceedings regarding Indigenous lands purchased by a developer. Counsel involved in the decision said, “the case is a useful reminder on how to deal with a motion for contempt not in the face of the court brought by a judge on his or her own motion.”

In Foxgate Development Inc. v. Jane Doe, 2021 ONCA 910 the court heard that the appellant, Skyler Williams, a Haudenosaunee man who lives “at the reserve situated at Six Nations of the Grand River,” was “added as a named defendant in interlocutory injunction proceedings brought by Foxgate Developments Inc.”

According to court documents, Foxgate purchased land in Haldimand County in 2015 for a housing project. It alerted representatives of the Six Nations of the Grand River and the Mississaugas of New Credit First Nations of “its intent to develop these properties as part of the regulatory process.”

“In 2019,” the court added, “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.”

According to court documents, protesters started coming to the land in July of 2020 and Foxgate launched action seeking “an interim and interlocutory order enjoining the John and Jane Doe defendants from obstructing the subject lands which it planned to develop.”

Foxgate alleged that the “then un-named personal defendants had engaged in trespass and other efforts to obstruct the development of the subject lands.”

Foxgate received “an interim and interlocutory injunction order” from the motion judge, Justice R. John Harper of the Superior Court of Justice, which “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.”

Haldimand County, also a respondent in this appeal, brought a motion before Justice Harper which sought “interim and interlocutory injunctive and mandatory relief to have certain barricades and other obstructions removed from a street in Caledonia.”

Both respondents had orders granted, the court noted, however, “the situation on the subject lands deteriorated.”

Justice Harper 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 court added, noting that Justice Harper determined the situation was “a risk to public safety.”

The matter returned to court in August 2020, the court explained, noting that at that time Foxgate sought to continue the injunction and to add Williams “as a party to the action on the basis of an affidavit filed by a Foxgate executive which characterized” him as a “protest leader.”

“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,” the court explained.

After Williams was added to the proceeding, Foxgate served and filed a Statement of Claim against him, and he responded with a “Statement of Defence on his own behalf.”

According to court documents, Williams gave evidence through two affidavits, which 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,” the court added.

The parties returned to court again in October 2020 and Williams “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.”

Justice Harper asked if Foxgate’s counsel “intended to bring a motion to strike” Williams’ participation in the proceedings as a result of his non-compliance with court orders, but they said, “they had no such intent.”

“Regardless,” the court noted, Justice Harper 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 court added, Justice Harper “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,” the court explained.

When the parties returned to court later that month Williams maintained his on the court orders and Justice Harper struck Williams’ “pleadings in the injunction, including his third-party actions against Canada and Ontario, and granted a permanent injunction to the respondents.”

Justice Harper ordered “costs in excess of $168,000 against Mr. Williams.”

On appeal, Williams argued that Justice Harper erred in finding he was “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;” that Justice Harper “failed to consider” his “status as an Indigenous person before the court;” that Justice Harper “lacked impartiality and should have considered the appointment of an amicus curiae; and that “the exorbitant costs imposed” on him “constituted an error in principle and was plainly wrong.”

Justice Lorne Sossin, writing for the Court of Appeal, determined that Justice Harper “failed to afford” Williams “procedural fairness.”

The court noted that the “conflation of contempt and abuse of process itself constituted an error,” but “whatever the basis for the motion judge’s 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,” explained Justice Sossin, noting that “[I]n 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.”

Justice Sossin stressed that “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.”

Further, the court noted that 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.’ ”

“Additionally,” Justice Sossin wrote, Justice Harper “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,” he added, Justice Harper “failed to instruct himself on the process to be followed or the evidentiary standard to be applied in a contempt motion.”

Justice Sossin emphasized that “[W]hile 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.”

However, Justice Harper “refused to consider these submissions.”

The court noted that Williams’ affidavits “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.”

However, Justice Harper “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.”

According to court documents, due to Justice Harper’s decision to “strike the third-party actions, the Attorneys General for Ontario and Canada made submissions” before the court on this 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,” Justice Sossin explained, noting his agreement.

Justice Sossin also found that since Justice Harper’s “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,” he added.

“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,” Justice Sossin explained, noting that Justice Harper “erred by making this order on the basis of an abuse of process without providing Mr. Williams a fair opportunity to be heard.”

The court found that Williams was “denied fairness” by Justice Harper not taking “appropriate steps” to put him “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;” by not providing “particulars of the exact conduct in issue (whether Mr. Williams status as the ‘leader’ of the protestors, or his own conduct);” by not setting out the “potential consequences” of Williams’ “impugned conduct, including exposure to costs;” by not giving Williams an “opportunity to consult with and retain counsel in respect of the contemplated order before the motion judge actually made the order;” and by not giving Williams “an opportunity to respond to the particular allegations against him before making any order.”

“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,” Justice Sossin stressed.

Therefore, Justice Sossin, with Justices David Doherty and Bradley Miller in agreement, determined in a decision released Dec. 21 that the “order striking Mr. Williams’ pleadings must be set aside.”

Although this was enough to allow the appeal, Justice Sossin turned to Williams’ other grounds of appeal, noting that Justice Harper “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 judge’s disposal. There was no legal obligation on the motion judge to consider or pursue this option,” Justice Sossin explained, noting that “counsel for the respondents also could have provided guidance to the motion judge on the procedural protections to which Mr. Williams was entitled.”

Justice Sossin also determined that, “[I]f it were necessary to do so,” he would find Justice Harper “erred in principle in making the costs award against Mr. Williams.”

Barry Yellin, Ross & McBride LLP

Barry Yellin, a partner at Ross & McBride LLP and counsel for the appellant with Wade Poziomka and Nick Papageorge, told The Lawyer’s Daily that the “big takeaway” from this decision is that lawyers must always deal with unrepresented litigants “fairly and ensure, while remaining an advocate for your own client, that the court treats the unrepresented litigant fairly as well.”

He noted this is in keeping with the decision in Pintea v. Johns, 2017 SCC 23, which “adopted the Canadian Judicial Council Statement of Principles on Self-represented Litigants and Accused Persons.”

“How you comport yourself during the conduct of an action against an unrepresented litigant always must maintain the air of fairness as an officer of the court,” he added.

As another takeaway, Yellin pointed to paragraph 66 of the decision, noting that “the decision on costs against Mr. Williams was made without any opportunity for him to make submissions on the issue and Justice Sossin called this a denial of fairness.”

Yellin said, as a practice point, this case “highlights the need to ensure that the party whose pleadings are struck out still have a fair opportunity to make submissions on costs. It seems a little at odds with our Rules of Civil Procedure, but fairness should guide the court and the parties’ observance of the rules.”

Yellin noted that this is the second time he’s “successfully argued before the Court of Appeal a finding of contempt against a contemnor made on the court’s own motion.”

“It would seem, given the success that I’ve had now twice in overturning findings of contempt at the Court of Appeal for contempt motions on the court’s own motion, the Court of Appeal eschews motion judges bringing such motions for contempt not in the face of the court on their own motion. They’ve highlighted that repeatedly,” he said, noting that if lawyers “see the court considering bringing a motion on its own for contempt not in the face of the court” they should “consider whether that’s actually hampering the process or could otherwise take it into a direction that is not only costly, but time-consuming and away from a timely determination of the matter on its merits.”

Matthew Gutsch, a spokesperson for Crown-Indigenous Relations and Northern Affairs, said “Canada believes that the best way to address outstanding issues and advance reconciliation with Indigenous Peoples is through negotiation and dialogue. This is vital to building stronger relationships and advancing reconciliation for the benefit of Indigenous communities and all Canadians.”

“Canada recognizes that access to justice issues are central to the appeal in Foxgate Developments Inc. v. Skyler Williams et al. Access to justice is a fundamental principle in Canada’s legal system and all Canadians have a right to a fair and reasonable opportunity to fully defend themselves in court,” he added.

Gutsch noted that Canada was “not a defendant in the case between Foxgate and the protesters.” However, Canada “participated in the appeal because the defendant filed a Notice of Constitutional Question and a Third Party Claim implicating Canada.”

“We have received the Court of Appeal for Ontario’s decision on the appeal and are currently reviewing it,” he added.

The Ministry of the Attorney General said Ontario is “reviewing the decision.”

Counsel for the respondents did not respond to request for comment.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.