Class action compensation doesn't address lingering issues

by Bill Jackson - The Regional News This Week

July 13, 2011

Shortly after natives started constructing a new building next to an illegal smoke shack on Hydro One land at the south end of Argyle Street last Friday, news broke that a $20-million-dollar settlement had been reached in the Caledonia Class Action lawsuit that was filed against members of the Ontario Provincial Police and Ontario government for misfeasance.

The settlement means thousands of dollars in compensation for local businesses and residents who suffered most during the height of the Douglas Creek Estates dispute, but does nothing to end the ongoing land occupation or illegal activity that continues to prevail in this tow. It pales in comparison t the economic losses during years of lawlessness and volatility.

In 2006, and for several years that followed, native protesters blocked roads. Residents and visitors to the town were subjected to verbal and physical assaults, tire fires, a power outage, personal property damage, frequent loud noises such as gunfire, ATVs and check-points that prevented some people from accessing their homes.

The construction and development of hundreds of homes and commercial businesses was quashed as a result, not only in Caledonia, but throughout Haldimand County and beyond.

Still, such a class action settlement is rare and represents a victory for local residents and business owners.

"You don't often see a successful class proceeding against the government," said lawyer John Findlay. "It's difficult to get one (certified) first of all."

Findlay didn't want to suggest that people will be fully compensated for their losses, but said that the settlement was on the "high end in terms of class action proceedings." He's never settled a case with an admission of wrongdoing, but said that Minister of the Attorney General Chris Bentley has a good understanding of the legal process and took the necessary measures to settle.

That decision comes not even three months before a provincial election and after more than five years of work by Findlay, a Caledonia lawyer who represented the plaintiffs, including several local businesses and 15 residents who would have been on the hook for legal fees and other costs had their claims failed.

Instead, $2.5 million will be divided up between 410 eligible households that have been grouped into six zones, based on impact. Those living closest to the DCE occupation could received in excess of $16,400.

To qualify for compensation, homeowners must have been in the homes on or before Feb. 28, 2006, when the DCE occupation began. To qualify for 100% of compensation, the same homeowners must be living in the same residences today.

The lawsuit was divided into four classes and the majority of the settlement will be allotted to hundreds of businesses that comprise the Caledonia business class and Highway 6 business class that includes businesses along the provincial corridor, from Haldibrook Road to Jarvis.

"At the end of the day [the payout is] really going to depend on how many people apply,: said Findlay.

Some residents and businesses had opted out of the class action proceeding to take legal action on their own.

Residents and businesses will be contacted by a court-appointed administrator to apply for compensation.

The compensation plan sets out that if applicant is entitled to compensation and had received some already under another plan or program relating to the claims in the class action lawsuit, the amounts already received shall be deducted from the compensation amount to which the applicant is otherwise entitled under this plan.

Those comprising the contractors' class - 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 the Douglas Creek Estates subdivision in March of 2006 - must contact the administrator themselves.

More details will be released once the administrator signs off on the compensation plan. Findlay expects that further details will likely be finalized later this week.

Haldimand Mayor Ken Hewitt said the settlement was great for people who took the initiative and time to present their case and that it supports his petition for an inquiry into the actions of the OPP over two years ago.

"Unfortunately it doesn't fix the main problem," he said. "There needs to be a common rule of law for everyone."

Ultimately, Hewitt thinks the settlement is a way of appeasing people and that the province still isn't providing the necessary leadership to resolve the DCE dispute.

The would-be residential subdivision turned eroding eyesore is a provincially-owned property still occupied by native protesters.

"Nobody seems to know how to get the ball rolling (for a resolution)," Hewitt said. "The province is the catalyst to this."

MPP Toby Barrett called the $20 million settlement a "desperate attempt to silence the community."

The McGuinty government is trying to seemingly "wrap up" issues in Caledonia with an election looming, he believes.

"The occupation has gone on for five years, with the people of the town of Caledonia paying the price. Now, as an October election approaches, a desperate and panicked Premier thinks a $20-million bribe will make the problem go away."

The Ontario PC caucus has been adamant that it would expand the powers in the Trespass to Property Act to help restore faith in the fairness of how such disputes are settled. Barrett said the PC plan would also clamp down on tobacco enforcement and increase police search and seizure.

"We need to deal with unmarked tobacco on reserve, go to the source and go beyond ticketing the little guy on the road."

As for a PC solution to DCE, Barrett doesn't believe that sides are ready to sit down just yet.

"The property remains occupied by militants," he said.

"We do not negotiate with lawbreakers."

Government is there to make sure laws are enforced, he noted.

"Ontario families should not be afraid in their own communities. We believe there should be one rule for everyone in Ontario, no matter what your background or where you live. We are all equal citizens under the law."