Caledonia Class Action lawsuit is certified

by Gary McHale - The Regional

February 10, 2010

On Monday Superior Court Judge Crane issued a ruling certifying the Class Action lawsuit that Caledonia Lawyer John Findlay started in mid 2006 on behalf of four classes of plaintiffs.

Class Action lawsuits are rare in Canada and few lawyers have experience in getting them certified. In Ipperwash they tried twice to get certification and failed both times. Mr. Findlay already had experience in this area of law prior to filing this lawsuit on behalf of residents and businesses affected by the lawlessness in 2006.

Part of the problem with Class Action lawsuits is that you need to prove to the court common damage caused by a common issue. The problems in Caledonia were complex and it is difficult to narrow it down to particular common points. Mr. Findlay's solution was to create four classes of plaintiffs which in affect created four Class Action lawsuits.

It is important for the public to understand these classes to see whether they are part of the lawsuit. In Canada people are automatically part of a Class Action lawsuit unless they opt out of the claim. Here are the four classes of plaintiffs in no particular order.

1) The Property Class includes 442 households that were affected by the ongoing occupation of DCE and/or near any of the locations where criminal acts took place.

The Property Class claims they were repeatedly threatened, harassed and intimidated along with nuisances of "loud noises, including drums, shouts and yelling, gun shots and blaring music at all hours of the day". Some claim they received  death threats while others claim they received direct threats that their homes would be burned down. Some claim they were physically assaulted. There is further affidavit evidence that their families have been accosted by protesters "dressed in camouflage, wearing face masks and carrying weapons such as bats and pieces of wood". Some have stated that they have been subjected to road blocks restricting access to and from their homes. The evidence is of a continuing nature with complaints and requests to the police, with no effective response.

2) The Business Class includes approx. 200 businesses who are located on Argyle St., between Highway 6 and Green Rd, or on Caithness St. E. and Caithness St. W., between Inverness St. and Edinburgh Square E. who were affected by the ongoing occupation of DCE or the interruption of hydro services.

The Business Class claims loss of revenues and profits due to the closure and blockade of Argyle Street, from April 20, 2006 to the reopening for traffic on May 24, 2006 and direct economic loss due to the cessation of electric services during the two day period commencing on May 22, 2006 by the shutdown of the Hydro One Caledonia transformer station.

3) The Contractor Class includes all contractors or subcontractors of Henco Industries Limited or their agents who were contracted to provide services and materials to owners, developers, builders or contractors on DCE as of March 2006.

The Contractor Class claims that the announced moratorium by the Minister of Aboriginal Affairs on all development within Douglas Creek Estates in May of 2006 ended all attempts of work on the site and states they have been unable to recover their losses occasioned by the frustration of their contract.

4) The highway 6 Class includes approx. 300 businesses with business addresses on Highway 6 from Highway 3 to Haldibrook Rd. who were affected by the ongoing occupation or the interruption of hydro services.

The Highway 6 Class claims that businesses are very dependent upon traffic proceeding on Highway 6 which is a direct access to Burlington, Ancaster, Hamilton and Caledonia clients. One business alone suffered a loss of revenues of $160,000 and a loss of profits in the range of $71,000.

For more information about the Class Action lawsuit you can visit the website at http://www.caledoniaclassaction.com/

The lawsuit was filed against ex-Commissioner Gwen Boniface, Insp. Brian Haggith and against the Ontario Government. 

Mr. Findlay had argued that the business classes are composed of mostly small retail businesses and that the property class represents people of modest means. He argued that denying these people participation in the Class Action would deny them access to justice.  The Crown responded that there may be a compensation through a negotiation process.

Judge Crane determined that such a negotiated process would be out of the control of the claimants and concluded the Class Action is a preferable procedure to satisfy judicial economy and provide access to justice for the claimants.

Judge Crane further ruled that the four classes were appropriately identifiable and represented. Their claim asserts "damages for negligence and breach of statutory duty against the Ontario Provincial Police; and in nuisance, negligence and breach of statutory duty as against the Crown in Right of Ontario, all in consequence of the occupation by native protesters of the former Douglas Creek Estates and the events thereafter."

The plaintiffs claim on behalf of all claimants, general damages, special damages, economic loss and property damage that will be in the tens of millions.

Judge Crane listed out the common issues to be dealt with which are:

What were the defendants' official or unofficial policies, systems and practices? What is the duty of the defendants to the claimants in the provision of police services? Did the defendants fail to provide fair and reasonable police services to the claimants in accordance with their duty? Has the Crown breached a duty owed to the claimants in consequence of its ownership use of the Henco lands?

Judge Crane also ordered the Government to run notices of this certification with instructions of how to opt out in various media outlets at their own expense. The Government is also required to post a notice on the following websites: Caledonia Chamber of Commerce website, Haldimand County website, on Ontario Secretariat of Aboriginal Affairs website, Ontario Provincial Police website and on the Caledonia Class Action website also at their own expense.

Mr. Findlay stated, "the ruling gives me exactly what I was requesting." He stated the certification now gives him the authority to seek disclosure of government documents and correspondence to/from various OPP officers and government officials.

The case is still a few years away from a trial.