Self-represented Indigenous litigants entitled to procedural fairness within Aboriginal law: ONCA

A recent court of appeal ruling setting aside a motion judge’s permanent injunction and cost awards reiterated the importance of providing procedural fairness to self-represented Indigenous litigants. Barry Yellin, a commercial litigator and lawyer for the appellant, says the decision also emphasized the distinction between a contempt court proceeding and striking pleadings based on abuse of process.

“The court drove home the need to ensure that a self-represented Indigenous individual be provided procedural fairness within the expansive understanding of the rule of law for First Nations peoples,” Yellin says.

Court of Appeal Justice Lorne Sossin wrote in Foxgate Development Inc. v. Jane Doe that the motion judge viewed contempt and abuse of process interchangeably. “The court’s contempt authority is procedurally and substantively distinct from its authority to make a finding of abuse of process,” Justice Sossin wrote, “Williams’ admission that he was in contempt does not circumvent the procedural protections which accompany a proceeding, nor does such an admission meet the criteria for a finding of contempt.”

While prohibited from fully participating in the proceedings, the appellant, Skyler Williams, raised the importance of considering contempt within his rights as an Indigenous person and the Gladue principles specifically, but the motion judge refused his submissions.

The appeal court set aside the injunction and costs of $168,000, finding that the motion judge denied Williams a fair opportunity to be heard, wrongly conflated contempt and abuse of process, failed to provide details of the wrongful conduct or the potential consequences, and did not follow the evidentiary standards in a contempt motion by not allowing Williams to retain counsel. 

“The motion judge failed to afford Williams the procedural fairness required by law before making an order striking his pleadings and foreclosing his further participation in the proceedings,” Justice Sossin wrote.

The appeal court also wrote that the costs were problematic because it included time spent on the motion before Williams joined the proceeding and was excessive given the repetition in arguments by the respondents, the absence of an adversarial context, and that Williams was self-represented. In disallowing Williams’ participation, the denial of fairness tainted the costs ruling.

The motion judge found that Skylar Williams, an alleged leader of a group of protestors occupying land where Foxgate Developments was developing a housing project in Haldimand County, defied court orders and determined that he was in contempt of court and engaged in an abuse of process. 

The judge relied on a video as evidence that Williams was on Foxgate lands defying the interim injunction — which Williams disputed and refused to grant a 24-hour adjournment allowing a lawyer to review William’s materials.

Foxgate did not respond to Law Times’ request for comment.

The motion judge struck Williams’ pleadings, including his statement of defence, a notice of constitutional question, and third-party actions against the federal and provincial Crown. He granted the permanent injunction sought by Foxgate and ordered $168,000 against Williams.

The attorneys general for Ontario and Canada submitted appeals arguing that the motion judge denied Williams’ right to procedural fairness in striking the third-party actions.

Canada’s attorney general argued that the judge impaired William’s right to defend the allegations and aggravated his error by failing to answer constitutional questions regarding penalties and the permanent injunction. The Attorney General for Ontario also asserted that Williams was entitled to procedural safeguards, especially since his contempt was not “in the face of the court.” 

William’s lawyer, Yellin, relied on Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council involving Indigenous activists found in contempt for occupying land under an injunction. In this case, the court overturned the ruling because the protestors were convicted without participating in the proceeding and denied procedural fairness.

The dispute began after Foxgate purchased land in Haldimand County in 2015. In 2019, Foxgate entered a definitive agreement with the Six Nations Elected Counsel and the Mississaugas of New Credit, transferring 42 acres to the Six Nations. It also paid funds in trust for land development for Six Nations.

The motion judge issued an interim injunction to Foxgate due to land obstruction and trespassing claims after protesters occupied the lands in July 2020. Still, they continued residing and refused Foxgate representatives from the property. As a result, Foxgate added Williams to the action as a protest leader.

Williams filed two affidavits and summarized the history of the lands, his duties according to Haudenosaunee law, the need for reconciliation, and his position on the injunction’s irreparable harm. He stated, “I am a Haudenosaunee man who does not belong before this colonial court.” 

In a court hearing on Oct. 20, he stated not abiding by the interim injunction and did not intend to comply with future court orders. The motion judge inquired whether Foxgate planned to bring a motion to strike Williams’ participation in the proceedings because of his non-compliance, and they had no intent. Still, the judge found Williams in contempt of court, which was an abuse of process and prevented him from participating in the proceeding until he obeyed the orders.

William’s position did not change in the next court proceeding, and he asserted that he could not direct the conduct of other protestors who were occupying the lands. As a result, the motion judge struck his pleadings, including the third-party actions against Canada and Ontario, and granted a permanent injunction to the respondents.