A Caledonia couple's $12-million lawsuit against the Ontario government and OPP got stalled at the starting gate yesterday after a lawyer for the Crown asked the judge to remove himself from the politically sensitive case due to a perceived conflict of interest.
David Brown and Dana Chatwell live next to the disputed former Douglas Creek Estates on Argyle Street South. The province bought the land for $16 million after it was occupied in February 2006 by Six Nations protesters.
The couple claim the provincial police service abused its power and was negligent in its duty, and also allege false imprisonment, assault, trespass, illegal surveillance and breach of their Charter rights.
The plaintiffs claim the government and its agents are to blame for failing to protect their family from unlawful conduct, nuisances and repercussions of the native protest and are vicariously liable for the conduct of OPP commissioners Gwen Boniface and Julian Fantino and detachment commander Inspector Brian Haggith.
The couple say they endured days and nights living in fear for their lives and the safety of their property and "have lived under siege without the protection of the law."
Sara Blake, a lawyer for the government, advised Superior Court Justice Thomas Bielby yesterday that the defendants would be bringing a motion to ask the judge to disqualify, or recuse, himself.
She said the case was "very significant" for the Crown and for its reputation in dealing with aboriginal land claims and protests and the government wanted to avoid "even the tiniest apprehension of bias."
The trouble arose when the province's legal team discovered Bielby, who was appointed to the bench last year, had previously been a client of Hamilton lawyer John Evans, who now acts for the plaintiffs, Brown and Chatwell.
Evans told court his law firm has represented LawPro, the insurance company licensed to provide professional liability insurance for the legal profession, for 20 years. He said his firm opens about 25 to 50 LawPro files a year and in that capacity acted for Bielby in 1995.
Although he was aware that he represented Bielby, Evans said he no longer recalls particulars of the claim, which was settled out of court in 1998, and has no personal relationship with the judge.
The lawyers used the recess to research whether Bielby should hear the motion to recuse himself or if it should be heard by another judge. They agreed Bielby should hear it.
The five-week civil trial is expected to focus on the 2004 Haldimand Police Services Agreement for the OPP to provide police services to Haldimand County for the next five years. Boniface was OPP commissioner until Oct. 30, 2006, when Fantino took up the post. Haggith was the detachment commander throughout this period.
Brown and Chatwell bought their home in August 2005, about six months before protesters representing Six Nations occupied the subdivision and put up barricades. There were about 10 new homes under construction of about 72 lots in Phase 1 of the development.
The civil trial is expected to shine a light on the various court orders and injunctions issued against the protesters and on the failed OPP raid on the property on April 20, 2006, and its aftermath.