Vol. 21 No. 8 • February 26 - March 4, 2015 In Our 20th Year Serving Greater Hamilton

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Lawsuit Steeped In Anger

by Don McLean
February 6 - 12, 2014
CATCH’s efforts have revealed the city’s lawsuit against the federal government has already cost taxpayers $5.4 million with no end in sight. Its origins reveal a council driven by anger that extended to also spending nearly a quarter million dollars suing several youthful opponents of the Red Hill expressway.

    The lawsuits against individuals and the Canadian government were endorsed together in an 8–7 city council vote on November 24 2004. Of the fifteen who voted, only seven remain on council. Four opposed it – Bob Bratina, Brian McHattie, Sam Merulla and Terry Whitehead – and three supported it – Tom Jackson, Chad Collins and Maria Pearson.

    The decision–making started with a last–minute addition to a committee agenda and a secret debate nine days earlier that recommended council “ratify the actions taken by staff in commencing Court Action No. C–383/04 against the federal government, its Ministers and employees”. A notice of action had been filed with the court by Gowlings lawyer David Estrin six months earlier.

    It’s unclear how a legal action was launched by the city before it was approved by council – a matter challenged in September of that year. Newly–elected mayor Larry DiIanni had chaired the Expressway Implementation Committee and was the most visual council advocate of the project prior to winning the November 2003 election campaign against expressway opponent David Christopherson.

    There was a second legal action recommended in the same report: “That the City commence a court action against all identifiable individuals who, during the summer of 2004, participated in activities in contravention of the city’s Injunction Order, seeking to have them held in contempt of court, and also seeking to recover damages from them in regard to costs incurred by the city as a result of their activities.”

    This was aimed at an unnamed “seven or eight individuals” who had been involved in a 104–day tree–sit in the Red Hill Valley that ended voluntarily in September. It was characterized by a Hamilton Spectator columnist as “returning to the field of battle to shoot the wounded”. Councillors Dave Braden and Phil Bruckler won removal of the part about seeking to recover damages from these youthful protestors over the objections of Tom Jackson and Dave Mitchell.

    It was several months before seven individuals were identified and cited for contempt of court and nearly two years to conclude their legal pursuit at a cost of $244,421.94 paid to the Gowlings law firm. Five promised to avoid the valley construction area in return for no penalty, one was acquitted, and the teenager who had occupied the tree the full 104 days was convicted in absentia and fined $10,000.

    The joint launch of the legal actions illustrate the anger toward anyone councillors considered impediments to the controversial expressway. The text of the allegations against 64 civil servants and four politicians claims that they “deliberately and unlawfully used their public office to harm the city by attempting to imperil and prevent, and in the result substantially delaying, completion of construction by the city of the Red Hill Creek Expressway.”

    Another section alleges “the defendants abused their public office by engaging in targeted malice toward the city’s completion of the expressway for the purpose of appeasing a minority of public opinion in Minister [Sheila] Copp’s riding opposed to the expressway and to allegedly protect migratory birds.”

    Copps and the three other accused Liberal cabinet ministers are all retired from public life. One of the named civil servants was dead before the lawsuit was launched and about twenty have been dropped over the years. The remaining defendants have spent nearly a decade facing these accusations.  V
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