Lawsuit against Province, OPP goes to trial

by Bill Jackson - The Regional

November 11, 2009

Civil litigation brought by Dave Brown and Dana Chatwell against the provincial government and Ontario Provincial Police officials went to trial on Monday in Hamilton.

The trial expected to take five to six weeks, according to the plaintiffs' lawyer, Michael Bordin.

The plaintiffs, including their teenage son Dax, have resided next to the Douglas Creek EstatesĀ  native occupation since 2006 and are claiming damages against former OPP Commissioner Gwen Boniface, former Haldimand OPP Insp. Brian Haggith and current OPP Commissioner Julian Fantino for misfeasance in public office, negligence, false imprisonment, assault, trespassing, illegal surveillance and breach of rights under the Canadian Charter of Rights and Freedoms in the amount of $5 million.

They are also claiming $5 million in damages against the province for private nuisance, misfeasance in a public office and in vicarious liability for the conduct and torts committed by the OPP's servants and employees.

Bordin explained that both sets of damages are not necessarily exclusive and plead different causes of action against different defendants for similar damages.

The plaintiffs are also seeking aggravated and punitive damages in the amount of $2 million.

"Everybody thinks the problems here are over," Brown told The Regional News, during an interview at his home last week.

"We've had to use all our resources to stay here."

Any savings the family had are now gone, he said.

Brown and Chatwell both used to be employed in the Caledonia area.

Chatwell owned her own hair salon called Shear body Sense which she operated out of the basement of their home at 445 Argyle Street S. that backs on to the DCE site.

Brown was employed at Nicholson and Cates Forest Products where he worked for seven years.

According to the 55-page statement of claim, Brown had an exemplary record. He regularly received bonuses for his performance and often worked overtime.

However, that began to change in April of 2006 when natives set up barricades near his home.

Brown was given a passport by protesters so that he could travel to and from town. He claims that his vehicle was searched illegally and that his belongings were stolen while OPP officers stood by and watched.

Native protesters instituted a curfew. One night when Brown refused to comply, he was detained overnight by OPP officers.

Brown claims that the OPP deprived him of total liberty, never read his rights and denied him a phone call to his wife who was home alone overnight while he was locked up.

He often missed work due to repeated harassment and threats by protesters who said they planned to burn down his home and take over his property.

A few months later, his employment at Nicholson and Cates was terminated.

Chatwell was forced to close her business due to the DCE protest and criminality that ensued all over town, despite a court order to stop protesters from interfering with home construction and from blocking entrances off Argyle Street to the DCE site.

On April 20, 2006 the OPP attempted to remove protesters and enforce contempt of court orders.

"However, as a result of the failure of the OPP to attend at Douglas Creek Estates with sufficient force, resources and number of officers, the OPP were overrun and routed by protesters who entered... from various points of access," the statement of claims reads. "Within hours the protesters had smashed police vehicles, assaulted OPP officers and had driven the OPP out... and had resumed possession and control..."

The province later purchased DCE property, allowing protesters to stay. The injunction order to remove protesters, originally granted to a local developer, was dissolved.

Following the failed police raid, Brown and Chatwell faced terrifying circumstances living in close proximity to the occupation, and say that they continue to experience ongoing strife to this day.

Their property is devalued and the entire experience has taken a huge emotional toll on their personal lives.

Brown believes that his family's problems are validated by an obvious scandal within the OPP.

Many officers during the pre-trial discovery process admitted to a two-tier justice system that's clearly in play, Brown said.

"You can see the fatigue on their faces," he said. "They'd like to help us out but they're walking on eggshells."

Brown expects a lot of new information to be disclosed publicly at the trial.

However, on the first day, Crown lawyers brought a motion for Superior Court Justice Thomas Bielby to recuse himself from the case due to a possible conflict of interest.

Justice Bielby was apparently a former client of lawyer John Evans who is a partner in the law firm which represents the plaintiffs.

Lawyers were to hear the motion on Tuesday at 1:30 p.m., following The Regional News deadline.

The Regional News will be following the trial proceedings and provide updates in the weeks and months ahead.