RED HILL VALLEY - SUMMER 2003 - LEGAL

(This letter was sent by the city's legal department to several individuals involved in protecting Red Hill Valley July 31, 2003 Re Red Hill Valley Project

Introduction

The City of Hamilton is committed to completing the Red Hill Valley Project. The Expressway is already 60% completed and further work is now progressing at two sites. As you may be aware, work on the Greenhill Avenue Bridge Phase will begin on August 5, 2003.
We are writing to you in light of public statements which indicate that some people intend to obstruct or prevent continued construction of the Red Hill Valley Project, particularly construction in the vicinity of Greenhill Avenue. We understand you may be one of those persons or that you may know such persons. In the latter case we ask for your assistance in passing this letter on to those who may intend to participate in such obstruction.
The City respects the right of individuals to communicate their views regarding matters which they may find objectionable, provided their means and manner of doing so are not unlawful.
We are therefore writing to convey to you the costs to the city taxpayers that will be created by unlawful disruption of construction as well as the distinction between lawful protest and unlawful behaviour, and its potential consequences. We also want to inform you that the City will seek damages and other appropriate legal remedies from those responsible for the City incurring damages and costs arising from unlawful behaviour.

Greenhill Avenue Construction Site Closed to Public as of 7 a.m. Tuesday August 5, 2003

As of 7 a.m. Tuesday August 5 it will be unlawful for members of the public to be within the area comprising the Greenhill Avenue construction project. As you will see from Notices to be erected around this Greenhill site, the area indicated on the Notice will remain closed until June 30, 2004. A copy of that Notice is enclosed for your guidance. The area is being closed to protect the public from construction dangers and to protect workers from dangers created by the public being present in a construction area. Closure of construction sites to the public is required by provincial law.

Costs to the City From Delay of Greenhill Project

The Greenhill work will be undertaken by a private contractor and its subcontractors pursuant to a contract with the City. The work includes erection of a noise wall along the extension of Greenhill Avenue, the construction of pavement on the extended portion of Greenhill Avenue, and the construction of a bridge over the north-south expressway. The work is costed at approximately $3.4 million and the contract requires timely completion. If the contractor is delayed by events beyond its control, such as protestors occupying or obstructing access to the site, there will be a significant additional cost for City taxpayers.
The City is entitled under common law to compensation from those persons causing the City damage through unlawful action as well as to a separate or additional civil remedy by way of an injunction to prevent such harm from occurring or continuing. These common law duties and remedies, and other laws concerning project disruption, are discussed below.

Law Regarding Persons Disrupting Construction

CIVIL ACTION FOR DAMAGES

Those who engage in illegal behaviour resulting in delay or disruption of construction can be sued for damages to compensate the City and its contractors and subcontractors, which damages will escalate on a daily basis. Also, as the Greenhill contract has a value of approximately $3.4 million and it is one of 15 related phases of construction, the ultimate cost of delay to the City arising from delay of the Greenhill component will be substantially more than the cost of delay from that one component. Such additional costs will be included in any civil damages claim.
In addition to paying damages, a court normally awards court costs against a party who is successfully sued. Court costs include some or all of the amount of money spent by the successful party on legal fees and disbursements in pursuing the civil action.
A civil court judgement awarding damages and costs may be enforced against a person owning property by the judgement being registered against title with the consequence that if the judgement is not paid the property can be ordered sold to pay the judgement.
Some of the common law causes of action providing a basis for the City obtaining a damages award due to obstruction of construction through a civil action are:

• Intentional Interference with Contractual Relations and Economic Interests
  It is a tort and therefore unlawful under common law for a person to intend to injure another by interfering with their business and cause economic loss. Protestors who intend to obstruct or are wilfully blind to the consequences of their actions or inactions will be liable for damages under this tort. It is accepted that the tort of interference with economic relationships may be committed even if there is no actual breach of contract but merely an untimely conclusion of economic relations.>
• Inducing Breach of Contract
  This tort is proven when a defendant is shown to know of the contract and its terms, intends to procure a breach of the contract, and engages in conduct by which the defendant directly persuades or induces a third party to breach a contract, thereby causing the contract to be broken and causing the plaintiff damage. We understand many protestors are quite aware of the contract between the City and its contractor on the Greenhill project, as Friends of the Valley purchased a copy of the contract. In any event, by this letter we are providing you with information that the City and its contractor will suffer damage if someone induces others to stop or block construction work with the result that contract work on the Greenhill project is interrupted or delayed.
• Illegal Conspiracy to Injure
  The tort of illegal conspiracy to injure is established by there being an agreement by two or more persons to do an unlawful act or to effect an unlawful purpose, or to do a lawful act by unlawful means, either of which causes the plaintiff to suffer damage.
• Tort of Intimidation
  This tort consists of intimidation of the plaintiff or intimidation of other persons to the injury of the plaintiff. Thus, if those who illegally occupy or obstruct a construction site intimidate the contractor's employees to leave a City worksite, the contractor can sue, but so too can the City for the damages and delays caused to it.
• Trespass - Common Law Liability
  Another common law cause of action is trespass. Persons entering or remaining on City property following notice that an area is closed for construction will be liable at common law for the tort of trespass, with the same consequences for paying damages to the City and its contractors.

INJUNCTIONS

An injunction is a court order prohibiting a person from engaging in unlawful conduct. Where an injunction is issued, e.g. prohibiting obstruction of a construction site or access to it, the Sheriff is directed to enforce it (with the assistance of Police where the Sheriff believes there may be a breach of the peace). Breach of an injunction is an indictable offence under the Criminal Code for which an alleged offender can be arrested and prosecuted. Breach of an injunction can also result in civil contempt of court proceedings by the party who obtained the injunction. Where civil contempt proceedings are taken, the punishment for the person in contempt is normally a substantial fine or jail term, in addition to liability for court costs

TRESPASSING - Arrest and Prosecutions

Trespass to Property Act; City of Hamilton By-Law 01-219 as amended.
As indicated above and in the Notice being provided with this letter, the Greenhill Construction area is closed to the public between August 5, 2003 and June 30, for reasons of safety of the public, the contractors, and as required by provincial law. Any person found within the closed area is a trespasser.
Under the Ontario Trespass to Property Act, a police officer, the occupier of premises, or a person authorized by the occupier may arrest without warrant any person believed on reasonable and probable grounds to be trespassing. Where a person is arrested, they are turned over to the Police. Maximum fines under this Act are $2,000 per offence. In addition, a person convicted may be required to pay for the reasonable costs of the prosecution.
Under City of Hamilton By-Law 01-219 as amended by By-Law 03-209, (which governs City- owned open space and parks) persons entering any area closed for construction may also be prosecuted under the By-law and, if found guilty, fined. The area of the Greenhill Avenue construction as shown on the Notice enclosed is closed to the public under this By-law for the period indicated above. The By-law also provides that those persons who refuse to leave a closed area are subject to the provisions of the Trespass to Property Act.

DISRUPTION OF TRAFFIC

City of Hamilton By-Laws

• S. 43 of City of Hamilton Bylaw 01-215 makes it an offence for any person to walk or stand together with one or more persons in such a manner as to impede pedestrians or vehicular traffic.
• S. 12.2 of City of Hamilton By-Law 86-77 as amended makes it an offence for any person to congregate and sit or stand so as to obstruct the free passage of either pedestrian or vehicular traffic on any streets or sidewalks.
• Persons breaching these bylaws are subject to prosecution and upon conviction, to be fined. Moreover, the City is entitled to obtain an injunction for breach of its bylaws.

CRIMINAL CODE

Mischief

• S. 430 of the Criminal Code states that every one commits mischief who wilfully ".obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property." Persons charged with mischief in relation to property of a value less than $5000 may be prosecuted by indictment and are liable to imprisonment for a term not exceeding two years, or may be prosecuted by way of summary conviction.
• The Ontario Court of Appeal has determined that a person may be guilty of mischief if he or she forms part of a group which constitutes a human barricade or other obstruction. The Court of Appeal also noted that the fact that the accused stood shoulder to shoulder with other picketers without saying anything or committing further acts may constitute an act of obstruction:
  It may not be very difficult to infer that a person standing shoulder to shoulder with other persons in a group so as to block a roadway knows that his act will probably cause the obstruction and is reckless if he does not attempt to extricate himself from the group.The same conclusion could be drawn where a person is part of a group which was walking around in a circle blocking the roadway. Those who are standing on the fringe of the group blocking the roadway may similarly be principals if they are preventing the group blocking the roadway from being bypassed.

Intimidation

S. 432 of the Criminal Code creates the offence of Intimidation, and specifically provides as follows

• 423. (1) Every one is guilty of an indictable offence and liable to imprisonment for a term of not more than five years or is guilty of an offence punishable on summary conviction who, wrongfully and without lawful authority, for the purpose of compelling another person to abstain from doing anything that he or she has a lawful right to do, or to do anything that he or she has a lawful right to abstain from doing.
  (f) besets or watches the place where that person.carries on business.; or
  (g) blocks or obstructs a highway.
  One Ontario case which used this section involved civil disobedience. The accused was a well-respected engineer who organized and conducted a blockade on a highway to protest a railway labour matter. The court made the following comments:

  Now the blunt fact is that what Mr. Krause did was to embark upon a form of civil protest. Mr. Krause deliberately and methodically embarked upon a breach of the law. . Those who embark upon civil disobedience however worthy their motives may be must be prepared to pay the price. They must recognize that the law will run its course.

Conclusion

The City of Hamilton is committed to completing the Red Hill Creek Expressway. It intends to undertake this work with the utmost concern for the health and safety of all - the public, demonstrators and workers. The City will minimize disruption to the residential and business neighbourhood around the Greenhill phase and other phases of the Red Hill Valley Project. It will manage City responsibilities with the utmost diligence in regard to environmental protection and compliance with all applicable laws, and to contain the cost to taxpayers which may arise from disruption and delay. We hope that the information set out in this letter assists you and others who made read it in understanding the nature of lawful and unlawful protest and the potential consequences of unlawful interference or obstruction of construction. We invite you to discuss these matters with your own lawyer, if you have not already done so. During the period in which Greenhill construction site illustrated on the enclosed Notice is closed to the public, entry or occupation by the public is unlawful. However, the City is committed to the right of individuals to peacefully protest in a manner and place that does not interfere with lawful City activities. To this end the City is prepared to make available City-owned lands where protest can be carried on which will not cause interference with construction or problems for neighbours or traffic on streets. We understand that the Acting Director of the Red Hill Valley Project has already provided information on this to some objectors. We invite you to contact us if you require further information. We encourage your continued contact with Chris Murray, the Acting Director of the Red Hill Valley Project. Yours truly, Elaine Holt Acting City Solicitor and Corporate Counsel Attachments: 1. Notice of Closure Greenhill Avenue Construction Project; 2. Map Illustrating Area Closed.

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LEGAL/ILLEGAL

Ewan MacColl Every time you pick up a newspaper Every time you switch on the T.V. You can bet your old boots that at some point you'll see Some high ranking copper or Tory MP Calling on all who are British and free To stand up and defend law and order. It's illegal to rip off the payroll It's illegal to hold up a train But it's legal to rip off a million or two That comes from the labour that other folk do, To plunder the many on behalf of the few Is a thing that is perfectly legal. It's illegal to kill off a landlord Or to trespass upon his estate But to charge a high rent for a slum is OK - To condemn two adults and three children to stay In a hovel that's rotten with damp and decay Is a thing that is perfectly legal. If you're job turns you into a zombie It's legal to feel some despair But don't be aggressive, that is if you're smart, And for Christ's sake don't upset the old apple cart - Remember the boss has your interest at heart And it grieves him to see you unhappy. If you fashion a bomb in the kitchen You're guilty of breaking the law, But bloody great nuclear plant is OK, Though plutonium processing hastens the day When this tight little Isle may be blasted away - Nonetheless it is perfectly legal. It's illegal if you are a gypsy To camp by the side of the road But it's proper and right for the rich and the great To live in a mansion and own an estate That was got from the people by pillage and rape - That's what they call a tradition. It's illegal to carve up your missus, Or put poison in your old man's tea, But poison the rivers, the seas and the skies, And poison the mind of the nation with lies- If it's done in the interest of free enterprise - Then it's proper and perfectly legal. It's legal to join a trade union And to picket is one of your rights, But don't be offensive when scabs cross the line, Be nice to the coppers and keep this in mind: To picket effectively, that is a crime Worse than if you had murdered your mother. It's legal to sing on the telly But they make bloody sure that you don't If you sing about racists and fascists and creeps And thieves in high places who live off the weak And those who are selling us right up the creek, The twisters, the takers, the con men, the fakers, The whole bloody gang of exploiters. ________________