City of Guelph drops lawsuit against business park protesters

The following article appeared in the February 23 edition of the Guelph Mercury:

A $5 million lawsuit against a group of five Hanlon Creek Business Park protesters has been discontinued, Guelph’s city solicitor confirmed Thursday.

“The action was concluded on the basis that it was discontinued without costs,” said Donna Jaques. She explained that “without costs” meant neither party was required to pay the court costs of the other. “The notice of discontinuance has been filed with the court and the matter is now concluded.”

The city, Jaques said, paid $59,276 to external legal council from 2009 to the present on the matter. Evans Sweeny Bordin LLP of Hamilton was the firm. Because the discussion on the discontinuation was in a closed session of city council, and because it was subject to attorney/client privilege, details as to the rationale behind the discontinuation can not be discussed publicly, Jaques said.

The sued Hanlon Creek Business Park protesters called it a SLAPP (strategic litigation against public participation) lawsuit from the outset, intended to stifle protest with the threat of massive costs. The City of Guelph said it was protecting its interests in a process that had jumped through all the necessarily planning hoops, and was being blocked from proceeding by the protesters.

In July 2009, about 30 people walked into the site of the planned Hanlon Creek Business Park when it was still overgrown fields and dabbled with forested areas with a tributary of the Hanlon Creek running through. They came to the site after being alerted to the fact that heavy machinery had begun preliminary infrastructure work on the site. The protesters would set up camp and occupy the site for three weeks, in an action that would become a leading news story that year.

When the City of Guelph and Belmont Equity Holdings Ltd. launched a civil action against a group of five of those environmental activists, its intent was ensure that the protest stopped and development could proceed.

Ward 2 Coun. Ian Findlay said that at the time the lawsuit was launched there had been some disruption the construction schedule at the business park. The protest was underway and the city’s contractor on the site had to withdraw its services.

“There were a lot of uncertainties as to the extent that the protest might take,” he said. “To protect the interests of not only the contractor, but the city’s interests as well, we did launch this lawsuit, that if any damage were to occur to the site or any delay in costs that we would be incurring, that we would have a mechanism for recovering those costs.”

An injunction resulted from the suit, and the protesters honoured that injunction, ceasing activities on the site, thereby addressing many of the issues the city was concerned with, he further explained. Not knowing whether the protesters would return, the injunction stayed in place until contractors finished their work.

“It has now been two or three years since all of that went down,” he added. “There has been no further disruption, and it was determined that the costs were minimum to the city in the end. So we have withdrawn out suit against the protesters.”

In a Mercury column last week, activist Matt Soltys, an organizer of the Hanlon Creek Business Park occupation, characterized the lawsuit as a form of punishment.

“The city wanted to punish us with their lawsuit – after all, we made the city look terrible, and we set a Canadian precedent by winning an injunction that stopped construction,” he wrote. The protesters secured a limited injunction preventing work on the site until it could be determined if it was a habitat for the Jefferson salamander, an endangered species.

“But besides punishing us, the lawsuit was designed to scare away opposition to the business park,” Soltys further wrote, adding that the strategy worked. Opposition to the project ended and the land “has been ravaged.”

Finlay said the lawsuit was never categorized as a SLAPP action in discussions with council. “We were very much concerned about actual real damage to the lands or any of the contractor’s equipment or expenses that he may incur in the course of trying to do business for the city.”

Protesters were not prevented from voicing their opinions or participating in civil engagement, he added.

“This was certainly not meant to inhibit free speech, but it was certainly meant to deal with any real costs that may come in the future,” Findlay added.