The origins of Hamilton’s lawsuit against the federal government 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. Nearly ten years and $5.4 million later, city council is continuing the pursuit of federal employees and politicians many of whom have long since retired or even passed away.
The lawsuits against the individual citizens and against the federal government were both endorsed by an 8-7 vote at the November 24 city council after a debate transcribed by CATCH. Of the fifteen who voted, only seven remain on council – three who supported the initiation of the legal actions and four who opposed them. The backers were Tom Jackson, Chad Collins and Maria Pearson. The opponents were Bob Bratina, Brian McHattie, Sam Merulla and Terry Whitehead.
The council decision-making process began on November 15, 2004 when a last-minute in camera item was added to the agenda of the public works committee “respecting Red Hill Valley Project – Legal Actions”. It recommended that council “ratify the actions taken by staff in commencing Court Action No. C-383/04 against the federal government, its Ministers and employees”. The ratification part is a reference to the filing of a notice of action by Gowlings lawyer David Estrin that had taken place on behalf of the city six months earlier in April 2004.
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 2004. The city’s heavy-handed response was characterized by a Hamilton Spectator columnist as “returning to the field of battle to shoot the wounded”.
Councillors Dave Braden and Phil Bruckler successfully amended this second legal action to remove the part about seeking to recover damages from these youthful protestors. Tom Jackson and Dave Mitchell were recorded as opposed to this deletion.
It took 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 of the charge, and the teenager who had occupied the tree the full 104 days was convicted in absentia and fined $10,000.
The inclusion of both legal actions in the same report and motion may help explain the mood of councillors toward those they saw as impediments to the construction of the controversial expressway that had originally been proposed in the 1950s. While this is apparent respecting the tree sitters, the wording of the allegation of conspiracy against 64 civil servants and four cabinet ministers wording suggests a similar visceral anger.
These were picked by Gowlings as co-conspirators in the decision to conduct a federal environmental assessment of the expressway project. The text of the lawsuit alleges that these “defendants 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 claims "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 from it over the years. The remaining defendants have spent nearly a decade waiting for the case to end.