Class action suit moves to certification hearing

by Bill Jackson - The Regional

October 14, 2009

A motion to certify a class action lawsuit on behalf of Caledonia residents and businesses affected by the Douglas Creek Estates occupation, will likely be heard sometime during the sittings of the Superior Court of Justice in Hamilton during the next three weeks, according to lawyer John Findlay.

Findlay, who represents the plaintiffs, refiled the certification motion earlier this year in light of Superior Court Justice David Crane's decision that required the classes be redefined.

"The business class used to be defined as any business in Caledonia, but we had to make it a little clearer," Findlay explained.

There are four classes.

The Highway 6 class consists of any business on Highway 6 from Haldibrook Road, south to Jarvis.

There are approximately 300 businesses included in that class and another 200 in the Caledonia business class, located off Argyle and Caithness streets.

"The contractors class is still the same. It's anybody that supplied or was a sub contractor or supplier to DCE," Findlay said.

There are 442 households that have been identified in the residential class who were victims of nuisance, he said.

The lawsuit claims approximately $25 million in total.

In a past decision, Crane dismissed a motion brought by the Crown to strike the class action claim commenced by four businesses and 14 residents of Caledonia against former OPP Commissioner, Gwen Boniface, former OPP Detachment Commander Brian Haggith and the Ontario Government.

Crane made it clear that he would not hold policing responsible for a drop in property values, Findlay said.

However, Crane found that the statement of claim sufficiently pleaded malfeasance in a public office against various ministers of the Crown, including ministers responsible for aboriginal affairs and community safety and the Attorney General.

If the class action is certified, Findlay doesn't expect that it would go to trial.

"Then what happens after certification is (the Crown must) provide all the disclosure," Findlay said. "They're going to have to provide me with all the emails and documents which I'm not sure they're going to want to get into."

The most likely result would be mediation and a negotiated settlement, he said.

"They have a good idea as to what they're facing in potential liability," Findlay stated.

"It does tie up a lot of their legal resources to deal with them all."

Findlay is representing local business owner Chris Syrie who has been unable to develop a piece of property which borders the DCE site.

He's also representing local homebuilder Sam Gualtieri who suffered permanent disabilities after being assaulted by protesters outside a Stirling Street development in 2007.

"Basically all these actions are based on failure to provide adequate police servicing," Findlay said.

"In Sam's instance it's all these trespassers who were allowed to wander around Stirling Street that day."

Findlay is defending Gary McHale who is being sued by 22 OPP officers for defamation. He is also prosecuting on behalf of McHale who claims he was falsely arrested and held overnight by police back in 2006 following a flag raisingĀ  march.

By taking the reins of what Findlay calls high-risk litigation, he hopes to be compensated eventually. However, most of the work involves sweat equity involving himself, local residents and businesses who have formed a committee to take necessary action, he said.