Lawyers in Ontario Superior Court argued Thursday that the city’s claim of $75 million in damages from protesters in a dispute over the sale of the Arrowdale municipal golf course is designed to intimidate.
The case arises from the City of Brantford’s bid for a permanent injunction against protests and occupations on the property. Before a permanent injunction can be considered, there is a motion based on so-called anti-SLAPP legislation that is being heard by Justice Harrison Arrell..
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.
“This case is a simple trespass issue,” said lawyer Tim Gilbert, who represents Trevor Bomberry, a native man who is one of six people named in the city’s injunction.
Gilbert said the city didn’t engage in consultation over the Arrowdale sale with its Indigenous neighbors as required.
“These bald allegations of damages to let a $75 million action proceed involves a chilling effect … and having the gall to claim $75 million in damages versus something the municipality should do as a matter of course, that is shocking.”
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.
Other 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, of 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.
Gilbert said there is no evidence that the property sale has been delayed or the city faces penalties because of protests.
The city seeking $75 million in damages “sends a message,” he said. “It’s out there to suppress public opposition, dialogue and discourse.”
Gilbert said Bomberry was trying to push Brantford to follow its required engagement process with Six Nations.
“This wasn’t an agreement to insult the city. Mr. Bomberry’s objective was engagement.”
But the judge interjected.
“You keep referring to this as a peaceful protest,” said Arrell. “It was an occupation.”
“But it was peaceful,” said Gilbert. “There was no act of aggression that was hurtful.”
He said his client “cut the locks on a chain. That’s not an act of violence.”
Lawyer Thomas Dumigan, also representing Bomberry, said Brantford should be denied the injunction because it doesn’t have “clean hands,” a legal term indicating a breach of some kind.
He said the city had a duty to consult with Six Nations over its plans to develop a park on the Arrowdale property.
Brantford’s official plan notes that Brantford will engage with Indigenous communities who have an interest in projects, said Dunnigan, adding that the Haudenosaunee Confederacy Council was never contacted, even though the city began some archeological work on the property.
Lawyer Eric Gillespie, representing Heaslip, said his client is just one of many residents who expressed concerns about the sale of the golf course.
Gillespie said Heaslip was at the property only three days in October: once at a protest outside the property gates, another time to meet with Bomberry and express his support and finally to participate in a media interview as a director of Know Your City on a day when many people were on and off the property.
“There’s no evidence of him having any involvement other than a single meeting with Mr. Bomberry and a single interview.”
Gillespie said his client has seen the “chilling effect” the city’s $75-million lawsuit is having on public discourse as “no reasonable person” is now willing to speak up about Arrowdale.
In its claim, the city alleged Heaslip was providing “extensive support” to the occupiers of the land, but Gillespie said the city offered no evidence to back its claim.
Thursday’s hearing was conducted through an online Zoom process that permitted the defendants and up to 60 other interested members of the public to watch the proceedings.
On Friday, the city will mount its defence.
If the judge finds that anti-SLAPP legislation applies, he may not proceed with the second part of the case to determine whether to make the injunction permanent.
@EXPSGamble