A dispute over the city’s $75-million claim in damages from protesters over last year’s occupation of Arrowdale golf course property could be headed to mediation.
“I truly believe that this (case) would benefit from some form of intervention by way of mediation or a court supervised conversation,” lawyer Tim Gilbert told Justice Harrison Arrell of the Ontario Superior Court on Friday. “I know you can’t deal with it because you’re the judge in this matter.”
But Gilbert said the court does retain a supervisor role over cases.
“If the parties want to have some sort of mediation or judicial intervention with someone other than me, I think that would be an exceedingly smart move,” Arrell said. “If it was totally up to me, I would be encouraging the parties 100 per cent to have some sort of discussion.”
Arrell gave the lawyers in the case until Thursday to discuss the matter. If no agreement can be reached, Arrell said he then would work towards rendering a decision.
The dispute comes from the City of Brantford’s bid for a permanent injunction against protests and occupations on the Arrowdale property. Before a permanent injunction can be considered, there is a motion based on so-called anti-SLAPP legislation that was argued before Arrell on Thursday and Friday.
The anti-SLAPP motion is based on legislation that seeks to protect free expression by preventing suits meant to silence or punish critics. Such actions are sometimes known as strategic suits against public participation, or SLAPP, suits, or intimidation lawsuits.
Gilbert represents Trevor Bomberry, a native man who is one of six people named in the city’s injunction. Bomberry, an Oneida man from Six Nations of the Grand River, was the leader of a group of land defenders who occupied the Arrowdale property from Oct. 9 to Dec. 31.
Others named in the injunction are; Kailee Poisson, president of Friends of Arrowdale, a citizens group committed to saving the golf course; Dan Oakes, of Friends of Arrowdale; Ron Heaslip, director of Know Your City, which unsuccessfully fought in court the city’s decision to sell the Arrowdale property; Alexander Dawson and Kurt Hadowas Gibson.
Brantford has agreed to sell 32 acres of the Arrowdale property to a developer for $14 million, with the proceeds to go toward building affordable housing elsewhere in the city. The city also wants to build a community park on 17 acres.
On Thursday, lawyers for Bomberry and Heaslip, who is represented by Eric Gillespie, argued that the case was a simple matter of trespassing. It was also argued the city’s $75-million claim seeks to suppress public opposition, dialogue and discourse.
On Friday, Arrell heard from Peter Downard, representing the City of Brantford, who argued that the city’s claims are not based on expressions of opposition to the sale of Arrowdale.
Rather, the claim, in the case of Bomberry, stems from his 2 1/2-month occupation of the property and the harm it has caused the city. In the case of Heaslip, the city is claiming that he aided and abetted the occupation, said Downard.
Responding to a question from Arrell, Downard said that anyone opposed to the Arrowdale sale could continue to speak and protest against it but they can’t trespass and occupy the property.
Downard said the occupation put at risk the property sale and future revenue from the development that the city plans to allocate to support affordable housing. As well, the city had to spend a substantial amount of money to cover security and other occupation-related costs, he said.
The occupation also damaged the city’s reputation as a stable community for economic development, the lawyer said.
“I wish to emphasize that after Mr. Gilbert was retained by Mr. Bomberry, it was within a couple of days that Mr. Bomberry vacated the Arrowdale property,” Downard said. “I suspect that Mr. Bomberry was very well advised.”
Downard said the Supreme Court of Canada has said that anti-SLAPP principles don’t apply to acts of violence or threats of violence. He also cited incidents of violence and threats of violence at the site.
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