On April 24th, 2012, two other plaintiffs and I filed Renaud et al. v. Woodside et al. in order to right a series of wrongs perpetrated by certain public officials of the City of Fredericton. We sued Brad Woodside, the City of Fredericton, and Murray Jamer. Brad Woodside is the Mayor of Fredericton and Murray Jamer is the Director of Engineering and Public Works—though we sued them as individuals, not as employees of the City of Fredericton. I have presented information about the case in an “FAQ” format so that people with specific questions can quickly find what they’re looking for; however, it’s best to read the document top-to-bottom to better understand the context of the case.
Note: This case has been settled out of court. Details of the settlement can be found here. I will leave this page up for those who are interested in the facts of the case, though any references to the case still being in the court docket are obviously out of date.
This case was scheduled to be heard in the Court of Queen’s Bench of New Brunswick, in the Judicial District of Fredericton, from December 3-5, 2013, beginning at 9:30 a.m. each morning.
- Why are you suing?
- The Backstory.
- The by-law provisions that the defendants claim prohibited our sit-in do not exist.
- Brad Woodside broke his promise to not forcibly remove our shelter.
- The defendants stole, damaged, and/or destroyed a lot of our property.
- The defendants ambushed us before their own deadline expired.
- The defendants destroyed our shelter with people still inside.
- Has this kind of protest happened in Fredericton before? If so, how was it handled then?
- But Occupy Toronto lost their lawsuit to maintain their sit-in protest in St. James Park. Doesn’t that mean that the Occupy Fredericton lawsuit will be lost too?
- I read in the Daily Gleaner that Brad Woodside was one of the “more patient” mayors when dealing with the Occupy movement. Is that not true?
- If the defendants didn’t handle this situation right, what should they have done instead?
- Why are you suing the City as well? Why not just sue Brad Woodside and Murray Jamer?
- Where can I find the relevant legal documents?
- What legal arguments are you going to use to prove your case?
- Why was there not better media coverage of the events in question?
- Why was this not settled out of court?
- Won’t this cost taxpayers money, as Woodside keeps saying?
- How does the Occupy Fredericton lawsuit address Occupy issues?
Why are you suing?
I was part of a group which began a sit-in protest in front of Fredericton City Hall to raise awareness about the various ways that our government forsakes the interests of common people for those of a very small and very wealthy class of plutocrats and the corporations that they run. Our protest was known as Occupy Fredericton.
Our protest began on October 15th, 2011. Relations with the City seemed cordial enough at first. The mayor, Brad Woodside, stopped by our protest periodically, bummed cigarettes off of the protesters, casually chatted for awhile, then went back to work in City Hall. On Thursday, November 17th, while Woodside was away on a trip to Vietnam, Deputy Mayor David Kelly told the Daily Gleaner that City Council had no plans to “evict”1 Occupy Fredericton, that the protesters kept the site clean and tidy, that traffic was not obstructed, and that neither the City nor the police had received any complaints about the protest.
Two days later, on Saturday, November 19th, Woodside returned from Vietnam. On the morning of Monday, November 21st—his first day back to work—he met with us informally and said that he wanted us to remove our shelter to make room for the City’s Christmas tree. He promised us that, even if we didn’t move, he wouldn’t have our shelter forcibly removed. Soon thereafter, we had a more formal meeting with Woodside in which we came to an agreement: we would downsize our shelter to one-half of its original size, and in return, Woodside again promised that he would keep his word and not have us forcibly removed. The following is an interview with Ella Henry just after that meeting:
Let’s take a moment to examine Woodside’s original claim that we needed to move for the Christmas tree. We knew where the Christmas tree was going to be set up, and it wasn’t anywhere near our shelter—it was about thirty feet away. The following picture from the Christmas tree lighting ceremony shows how much room there was between the tree and our shelter:
It was abundantly clear that the Christmas tree was not the real reason that Brad Woodside wanted us to leave. This was obvious not only because we were not in the way, but because he told us that, if we removed our shelter from City Hall property, we would not be allowed to set it up again once the Christmas tree lighting ceremony was over. The Christmas tree was a pretext that he used to try to get us to move, and when it didn’t work, we knew that he would try to find another pretext. I actually predicted to the media on December 2nd, 2011, that Woodside would use safety concerns as his next pretext, as politicians often use “safety” as a justification to get their way:
“In the long term, I suspect the mayor will find another pretext to try to get rid of us—say, health and safety issues, that’s always a reliable fall back—or he will suggest that we’ve been violent.” [quote corrected for spelling and grammar]
– Julian Renaud, quoted in “Christmas trees and the Occupy movement,” published by The New Brunswick Beacon on December 3rd, 2011.
I hate to say it, but my suspicions were correct. On December 21st, Woodside told The Daily Gleaner that we were not safe, accusing us of violating our own safety regulations regarding our heater. Weeks before, the Fredericton Fire Department inspected our heater setup and safety equipment, and after we installed two carbon monoxide detectors, a smoke detector, and an eight-pound fire extinguisher in addition to the four-pound extinguisher we already had, the Fire Marshal approved our setup and provided us with a safety sign. Woodside misrepresented the content of this sign. Compare his quote from the newspaper to what the actual sign said below:
“There’s a big sign up that says there has to be two people here whenever the heater is being used and one has to be up, be awake. Well, the heater was on and there was only one person in the tent sleeping.”
– Brad Woodside, quoted in “Occupy Fredericton gets marching orders,” published by the Daily Gleaner on December 21st, 2011.
The sign clearly states that only one person needs to be present and awake when the heater is in operation, not two as Woodside erroneously claimed. Furthermore, it would have been physically impossible to leave the heater on overnight, as its kerosene supply only lasts for about three hours before it needs to be refueled.
Woodside didn’t stop there in his quest to discredit us in the media. He then claimed that where we were “going to the bathroom” was a problem—strongly implying that we were defecating in front of City Hall. In fact, since we usually held down the fort in shifts a few hours at a time before having others take over, we rarely needed to use the washroom while protesting. When we did, we used the washrooms of local businesses that we patronized, the same as everyone else. We could have rented an outhouse, but we knew that Woodside would have then complained about the presence and smell of an outhouse in front of City Hall. It was clear that there could be no satisfying him.
As one might expect, the fact that Woodside wove a fictional tale to the media which portrayed us as a crazed group of squatters who go around defecating all over public property and are prone to lighting themselves on fire at any moment soured relations between us considerably. We understood full well what he was doing, however; he was trying to build a case with the public to move against us, who had, until Woodside started to defame us in the media, largely supported our protest. It was clear that he wouldn’t win in a court of law—because we hadn’t actually broken any laws—so he was trying to win in the so-called “court of public opinion” instead. He might not have cared about public opinion that much in a regular year, but he had an election coming up in May, and a scandal involving police beating protesters under his watch—like what happened in Halifax—would certainly not have helped his chances of winning.
Soon after Brad Woodside first asked us to leave, I read through every relevant by-law that the City of Fredericton has to see if we were in violation of any of them. I found that we were not. The only possibility I saw was By-law S-7, but it refers to buildings on private property, not public property. However, they could have followed the same procedures in our case ex mero motu. We would have been fine with that, because since By-law S-7 relies on the Municipalities Act, we would have had the right to fourteen days of written notice, a hearing before a City committee, and a hearing before a judge of the Court of Queen’s Bench. Ultimately, if the mayor wanted to make an issue of our sit-in, all we wanted was to have our day in court to argue in favour of the right to protest.
Since we knew that we were not in violation of any by-laws, we began to consider other ways that the mayor might try to cause problems for us. When I was reading through the Motor Vehicle Act, I came across Section 96, which indicates that a person must change the residential address on his driver’s license within 10 days of moving to a new location:
When any person, after applying for or receiving a licence, moves from the address named in such application, or in the licence issued to him, or when the name of a licensee is changed by marriage or otherwise, such person shall within ten days thereafter notify the Registrar in writing of the change, giving his old and new addresses or such former and new names and the number of any licence then held by him.
– Section 96 of the Motor Vehicle Act, RSNB 1973, c. M-17.
Since one of the protesters, Alex Davenport, slept in our shelter every night, prepared his meals there, did all of his reading and research there, and was never present at his old address, he effectively lived at the protest site. He was warned that he might be charged under the Motor Vehicle Act if he didn’t inform Service New Brunswick of this fact—especially since it was common knowledge, and widely reported in the media, that he was there all the time—so he decided to do so. When he informed Service New Brunswick that he effectively lived at the protest site, they issued him a new driver’s license with the address of 371 Queen st. He then went to his bank and Canada Post to change his address on file to match that on his new license, and his mail was then delivered straight to the door of the shelter. Unfortunately, this turned into a media spectacle when they caught wind of this fact and reported it out of context (i.e. without the explanation of the relevant laws that I just provided), and predictably enough, the mayor used this to reinforce his portrayal of us as squatters rather than protesters. Davenport’s change of address protected him from being charged under the Motor Vehicle Act, but it didn’t help our cause in the realm of public opinion.
I should note that there was only one public opinion poll conducted in Fredericton before Woodside ordered the shelter destroyed, and 63 per cent of respondents said that it should stay. This number is in line with those in a national survey conducted by the Environics Institute, which found that 62 per cent of Canadians support the Occupy movement. So, even after the tall tales of squalid squatters and fiery feces had been published and broadcast over virtually every media outlet in the area, most people still supported our protest. Some of our support had certainly eroded, however.
I do not mean to imply that public support is all-important or the only purpose of Occupy. On the contrary; I firmly believe that people ought to speak their minds and do the right thing no matter what others think. I don’t think that anyone appreciates having lies spread about them, however. Woodside’s attempts to foment contempt of us also created an unsafe situation, as we started to receive physical threats when the bad publicity started. Someone drove by in a pickup truck and yelled that he was going to burn our tent down with us inside; someone on Facebook said that he and his buddies were going to go drinking and then “pay us a visit.” Luckily, no one from the general public followed through with their threats. The only people who ended up causing any problems on the protest site were Brad Woodside and the city workers under his command.
On December 31st, 2011, at 5:45 P.M., Brad Woodside delivered written notices to myself and other protesters which alleged that we would be in violation of Section 5 of By-law T-4 in three days if we didn’t remove our shelter, and that we would then be fined between $50 and $500. Two and one-half days later, at 5:00 A.M. on January 3rd, Woodside showed up flanked by about a dozen city workers armed with knives and chainsaws. They proceeded to quickly knock down the shelter with people still inside, cut it up, and take all of the protesters’ belongings that they weren’t wearing, all within 17 minutes. We later drove to the depot where the city workers were holding our property to find that much of it wasn’t there. The defendants have since acknowledged that they destroyed a lot of our property, though they haven’t explained why.
Now that the backstory is established, let’s move on to the specific reasons that we are suing Brad Woodside, the City of Fredericton, and Murray Jamer.
The by-law provisions that the defendants claim prohibited our sit-in do not exist.
It’s bizarre. When I first read the letters that Brad Woodside delivered to us on December 31st, 2011, I thought that I was somehow reading them wrong, or that I must have missed something when I read through the by-laws the first time. I didn’t think that Brad Woodside, Murray Jamer, and their lawyer, Michelle Brzak, could have possibly overlooked the fact that we were not actually violating the by-law that they accused us of violating. Take a look at these excerpts from their letters to see what I mean. Woodside wrote that we were prohibited from doing the following:
Murray Jamer then backed Brad Woodside up by also accusing us of violating Section 5 of By-law T-4:
Now let’s examine the by-law the defendants accused us of violating. Here is Section 5 of By-law T-4 in its entirety:
Notice something missing? As written, Section 5 of By-law T-4 makes no sense. It says that the Director of Engineering and Public Works will provide notice to someone who is in contravention of that section—but doesn’t say anything about what would be in contravention of it. As Dr. Paul Groarke explains on pages 2 and 3 of his legal lecture notes, a standard by-law consists of three parts, all of which need to be present for the law to be valid:
- A substantive clause that prohibits some form of conduct;
- A clause providing for Notice if one is in violation of 1.;
- A penalty clause that sets out the penalty for violating 1. and continuing to be in violation of 1. after the Notice period provided by 2.
It is plainly obvious that the first component is missing. There is no substantive clause in Section 5, and thus nothing to create an offence. How could one possibly be in violation of a by-law that does not specify what constitutes a violation? Put another way, how can one violate a by-law provision that doesn’t exist?
Interestingly enough, Brad Woodside himself tacitly admitted that we were not in violation of any by-laws. On November 25th, 2011, he told the Daily Gleaner:
“This Occupy movement here and all across North America has caught a lot of people off-guard. What I mean by that is the ability to go in and physically remove people.
“We don’t have, at present, the legislation because we’ve never dealt with anything like this before. We have got to have the legal legs beneath us.”
The mayor said he’s meeting with legal and senior staff to put together legislation that will address Occupy movements or any other public protests where people encamp in public spaces.
– Published on page A.1 of the Daily Gleaner, November 25th, 2011.
Woodside also said that the city needed to “strengthen” by-laws in order to prevent such protests from happening again in many other interviews, such as this one. The “legal legs” and “strengthened by-laws” to which Woodside refers are now contained in By-law L-12—which was passed by City Council on April 23rd, 2012. That’s more than three months after Woodside ordered the city crew to destroy our shelter and take our belongings. Unless Brad Woodside has a time machine that he used to transport our shelter into the future when it actually would have been in violation of a by-law, it seems rather difficult to conclude that our sit-in was illegal and even more difficult to conclude that Woodside and Jamer’s actions were not illegal.
Brad Woodside broke his promise to not forcibly remove our shelter.
Yes, I know, it should come as no surprise that a career politician broke a promise, and I agree with those who say that people who believed him in the first place were naïve. Nevertheless, we firmly believe that people should keep their word. This is especially true of politicians, who can cause a lot of problems when they break promises and abuse the public trust.
The fact is that we had an agreement with Brad Woodside. We scaled down our shelter to half of its original size, and in return, he agreed not to try to have us forcibly removed. We held up our end of the agreement; he reneged on his.
It is worth noting that promises are of legal as well as moral and ethical significance. The legal term for such a scenario is estoppel.
The defendants stole, damaged, and/or destroyed a lot of our property.
The city crew, under the direction of Brad Woodside, took everything that was not being worn by the protesters—their protest signs, pamphlets with information about the movement and its initiatives, sleeping bags, books, fire extinguisher, a woman’s purse—everything. We drove to the City of Fredericton depot and picked up everything that was left, but noticed that a lot of things were still missing, a list of which can be found on the lawsuit. The defendants later admitted in their Dispute Note that they “discarded or destroyed” some of our property. It is very interesting that the property that they “discarded or destroyed” includes everything of political significance, such as our signs, pamphlets, and books.
The defendants ambushed us before their own deadline expired.
On December 31st, 2011, Murray Jamer’s letter to us indicated that we had three days to remove our shelter before we would be in violation of Section 5 of By-law T-4. Again, we would not have actually been in violation of the by-law – since there is nothing to be in violation of – but even so, we were still given three days.
The defendants came and wrecked our shelter after two and a half days.
We were served with the letters in question around 5:45 PM on December 31st. The defendants moved in, chainsaws revving, at 5:00 AM on January 3rd. That isn’t even close to three days. Even in layman’s terms, three days means seventy-two hours. They gave us fifty-nine. In legal terms, as laid out in Section 22 (k) of the Interpretation Act, RSNB 1973, c. I-13, three days really means four days, because the day that a Notice is served does not count in the calculation. The earliest the defendants could have moved against us without violating their own notice period was midnight on January 4th.
It doesn’t take much thought to realize why the defendants moved in before their own deadline expired. It was an ambush. They wanted to take us by surprise. There would have been more media there on the 4th, because that’s when the deadline actually expired and thus when it was thought that they would move in. There also would have been more protesters on site with more cameras taking more video that might embarrass the mayor—and no politician wants such a scandal a few months before an election.
The defendants destroyed our shelter with people still inside.
Rather than just taking the shelter apart, moving it, and giving it back to us later, they chopped it up with knives and chainsaws.
Has another sit-in protest anywhere been destroyed by a city crew with knives and chainsaws at the behest of a mayor? If you know of one, please let me know.
There’s no doubt that what the defendants did was dangerous, and could have seriously injured someone. They were very lucky that the protesters in the shelter only suffered minor injuries when the city crew collapsed the wooden-beamed roof on them.
One might ask why there were still people in the shelter when it was torn down. When the city workers were cutting it apart, one of them said to the protesters inside: “Get out, you’re gonna get hurt!” In response, the protesters said that the workers had no right to tear down the shelter, so they weren’t leaving. One of them also couldn’t find his boot in the darkness, but that’s beside the point. Ultimately, the defendants deliberately knocked the structure down on the heads of the protesters.
Let’s compare this incident to what happened at Occupy Toronto. Even though the City of Toronto had issued Trespass Notices to protesters there (which, unlike the Notices given to us in Fredericton, were based on real laws, not fictional ones), there were people who refused to leave their structures when Toronto city workers came to dismantle them. Did those workers then respond by knocking the structures down on their heads anyway? No. That would have been assault and battery, and the Toronto officials knew it. Instead, police officers came and arrested protesters who refused to move, and once they had been moved out of the way, the workers dismantled the protest structures. And unlike the Fredericton workers, they didn’t use chainsaws in the process.
Why didn’t police likewise remove the protesters in Fredericton? Simple: they had no legal authority to do so. The protesters hadn’t broken any laws. The police thus couldn’t charge them with anything. If the police had arrested them anyway, we could have sued the police force for malicious prosecution. They were well aware of this.
What is especially interesting is that the defendants claim in their Dispute Note that they merely “dismantled” the tent. To “dismantle” something means to take it apart such that it is not damaged and can be re-assembled again. They could have easily “dismantled” the shelter with claw hammers and power drills with #2 Robertson heads; instead, they took the brute force approach and used chainsaws to destroy it.
Of course, the defendants didn’t have the right to do anything at all to us or our property, since we hadn’t broken any laws. However, even if we had violated by-laws, they still wouldn’t have had the right to destroy our property, throw it in the back of a truck, and send it to a landfill. That is far beyond any authority that a Canadian mayor could ever have.
Has this kind of protest happened in Fredericton before? If so, how was it handled then?
Yes, this kind of protest has happened many times in Fredericton—and this is where things become very interesting indeed. Protesters set up a tent city in Officer’s Square in the summer of 2004 to protest various issues related to poverty. Woodside tried to have them kicked out immediately. Since the protesters were not violating any municipal by-laws, Woodside tried to get the Province to use a provincial law to remove them from the site. The Province refused to remove them, so Woodside called the Province “gutless” and then decided to try to talk the protesters into moving of their own accord. He convinced them to move to the lawn of the Centennial Building—a location that is much less visible and, since it is provincial property, none of Woodside’s concern. The Province made no attempts to move the protesters, and in fact welcomed their sit-in protest:
Supply and Services Minister Dale Graham said the mayor didn’t consult with government about moving the protesters to the Centennial Building, but if they want to camp there, they’re welcome.
“He is the mayor of the City of Fredericton. If he feels he should be involved … He’ll have to decide what he wants to be involved with,” Graham said.
If he felt he was doing the tenters a favour, more power to him, Graham said.
“I’m not aware of any legislation to bar them … If individuals want to express their opinion, they’re certainly able to do that,” Graham said.
– From “Tenters relocated,” published by the Daily Gleaner on August 4th, 2004.
At the same time that this protest against poverty was taking place, another group set up a sit-in protest with tents on the lawn of the legislature to protest the lack of funding for a youth house. Charles LeBlanc set up a one-man sit-in protest at the legislature to protest the over-prescription of Ritalin. A group of aboriginals have set up a tent by Fredericton’s Government House to protest the seizure of aboriginal land. If we want to look at the history of another maritime province, we might recall the Sydney Steel protests; one group set up a 13-tent sit-in, complete with swimming pool, right in front of the Premier’s house.
I could go on. The point is that sit-in protests happen all the time, even in Fredericton. The only reason that Occupy has stood out from the others in the public mind is because hundreds of similar protests erupted all over the world at the same time, and consequently, the media has paid much more attention to them. So, when Woodside said, “We don’t have, at present, the legislation because we’ve never dealt with anything like this before,” he was right about one thing: he didn’t have the legislation to forcibly remove the Occupy sit-in, just as he didn’t have the legislation to forcibly remove the anti-poverty sit-in back in 2004. He was wrong, however, to say that nothing like it had happened before, because the facts indicate otherwise.
In 2004, the fact that Woodside had no legislation at his disposal that prohibited sit-in protests didn’t end up being a problem for him, because after his attempt to get the Province to forcibly remove the sit-in failed, he managed to talk the protesters into moving elsewhere of their own accord. He tried the same tactic with Occupy, but when it was taking longer to convince the protesters to remove their shelter than he would have liked, he duped his constituents into believing that he actually did have legislation that allowed him to send in a crew with chainsaws to take it out. Indeed, it was very interesting to see Woodside change his tune, almost overnight, from “they’re not violating by-laws, so we need to create new by-laws that prohibit this sort of protest” to “they’re violating by-laws and so we’re going to move against them.” It was even more interesting to see that the mainstream media somehow failed to pick up on that, and that not one journalist bothered to actually check the relevant by-law itself to see if Woodside’s story checked out.
But Occupy Toronto lost their lawsuit to maintain their sit-in protest in St. James Park. Doesn’t that mean that the Occupy Fredericton lawsuit will be lost too?
Not at all. These are completely different lawsuits, filed for very different reasons, with very different claims and allegations, very different sets of facts, in different jurisdictions. In fact, the Occupy Toronto case illustrates many reasons why our case ought to be successful.
I have no particular problem with the way the City of Toronto and its legal team conducted themselves in the Occupy Toronto case. Unlike Brad Woodside and Murray Jamer, the City of Toronto issued Trespass Notices to those protesters that were based on laws that actually exist. They did not try to keep the issue out of court. They even said that the Occupy Toronto court case (filed as Batty v. City of Toronto, 2011 ONSC 6862) raised important public issues, and as such, the City of Toronto did not try to recoup legal costs from the protesters. To me, that is a very reasonable and professional approach to the situation. The defendants in Renaud et al. v. Woodside et al. are, by contrast, trying to claim
a pound of flesh legal costs from us.
On a sidenote, one small issue I have with the City of Toronto’s legal arguments relates to their claim that the shelters erected by the protesters did not constitute political expression as protected by Section 2 of the Canadian Charter of Rights and Freedoms. A lawyer who is familiar with Canadian case law ought to know better. Judge David Brown ruled that the shelters were indeed forms of political expression and were protected by the Charter, but later in his decision, he ruled that limiting those rights under Section 1 of the Charter was reasonable in those particular circumstances.
Section 1 of the Charter cannot save the defendants in this case. I will explain why after the lawsuit is over, though any Canadian lawyer who has read this article must know already.
I read in the Daily Gleaner that Brad Woodside was one of the “more patient” mayors when dealing with the Occupy movement. Is that not true?
Let’s take a look at the underlying assumption made by the assertion that Woodside was “patient.” The whole “Woodside waited awhile to move against the protesters, and he was therefore patient” argument makes the false assumption that he had the right to move against the protesters in the first place—but that he chose not to for awhile in order to try to set a “shining example” (Woodside’s exact words) for the rest of the country. Indeed, that is the story that Woodside spun to the media, and they gobbled it up like so many wide-eyed Hungry Hungry Hippos. I will give Woodside this: he has certainly learned how to manipulate the media in his decades as a politician. However, the argument is fatally flawed, because its assumption is wrong. Woodside did not have the right to move against the protesters, as established earlier in this article. The mayors of many other cities did, because their by-laws were different. That’s a very important distinction.
The question then becomes: Why did Woodside wait as long as he did if not out of the goodness of his heart? The answer is clear enough. He would have been advised by his lawyer that the protesters were not violating any by-laws, and moving against them anyway would be illegal. Infringing on the civil rights of one’s own constituents, destroying their property, and potentially injuring protesters is not only a great way to get sued, but also a great way to create a scandal right before election season. That is, if news cameras are allowed to get a good shot of what transpired, which they were not. This is why he tried to get us to remove our own shelter: if we had, Woodside would not have exposed himself to such risks. This is also why he had his crew move in at 5:00 A.M., and told the police to bar the media both from City Hall property and from across the street in front of Tony’s Music Box—the only places where they could get a good shot of the teardown.
We might ask how long Woodside would have waited to order the destruction of the Occupy Fredericton shelter if he actually had the legal authority to do so. If his record is any indication, given how fast he asked the Provincial government to remove the anti-poverty sit-in back in 2004, he would have ordered its destruction immediately. Not what most people would consider “patient.”
If the defendants didn’t handle this situation right, what should they have done instead?
They had many good options. They could have amended a by-law to make sit-in protests illegal on public property; they could have taken the matter to court, especially since we said that we would obey any court ruling; they could have simply waited for us to leave, which we were going to do of our own accord anyway. Ironically, we may have left earlier had Woodside not harassed us so much, as maintaining the sit-in took a lot of time and resources—but Woodside lying about us to the media and then accusing us of violating by-law provisions that don’t even exist ensured that we were going to stay there and make the point that our rights matter. We defied a mayor who acted well outside the bounds of his authority. And Woodside’s actions were a perfect illustration of why we were protesting in the first place.
When Woodside met with us on December 31st, 2011, he said at first that he refused to take the matter to court because he did not have the “patience” for it. This clearly wasn’t the real reason, since hearings for injunctions that are considered pressing can be heard very quickly. The Occupy Toronto suit was heard a matter of days after a hearing was requested. Towards the end of the meeting, however, Woodside seemed to change his mind, and twice said that the matter would go to court. In later interviews, he denied making those statements. These contradictory statements were all captured on video, as seen here:
Why are you suing the City as well? Why not just sue Brad Woodside and Murray Jamer?
It was unfortunately necessary to include the City of Fredericton as a defendant. If we did not, the City simply would have said that Woodside and Jamer were acting properly as employees of the City of Fredericton when they carried out their actions, and thus are not personally liable. Our lawsuit would likely have been dismissed for failing to name a valid defendant. We wish that we could have kept the City itself out of this matter, but that was not legally possible.
Notice, however, that we argue that Brad Woodside and Murray Jamer exceeded any authority they had as employees of the City of Fredericton, and are thus personally liable for their actions. We are pushing to have them pay damages personally, and if the judge agrees, that is exactly what will happen. It is even acknowledged in Section 3.04 of By-law A-3 that the City will not indemnify (i.e. pay the legal expenses of) individuals who contribute to a claim by reason of fraud or dishonesty.
Where can I find the relevant legal documents?
Another interesting read is this article published in Canadian Lawyer Magazine, in which a criminal lawyer questions the legality of the actions of the defendants.
If you wish to view the original hard copy of the Statement of Claim, or the Dispute Note filed by the defendants, you may do so at the Fredericton Justice Building at 427 Queen St. Go in the front entryway, and once past security, turn right and head to room 207.
What legal arguments are you going to use to prove your case?
I can’t reveal too much about our arguments until the trial is over, as the other side will certainly read this (hi, Brad!). However, after the trial is over, I will publish a complete summary on this site of what I argued, how I argued it, and the documentary evidence I used, because there are many issues raised by this case that are in the public interest to discuss.
Why was there not better media coverage of the events in question?
One reason is that the destruction of the Occupy Fredericton shelter was carried out under the cover of darkness at 5:00 A.M., which is a tactic used by many municipalities to limit the number of witnesses. More significantly, the following video, in which a CTV reporter explains that he was threatened with arrest if he videotaped from City Hall grounds or from across the street, illustrates the degree to which proper media coverage was obstructed:
This reporter tried to film from City Hall property, and then from across the street in front of Tony’s Music box, and was threatened with arrest at both locations. Brad Woodside admitted in interviews with the CTV and CBC that he ordered the police to keep media off of City property for “safety reasons.” He said that reporters would be in danger because City workers were carrying wood and tarps around. We might well ask whether Mr. Woodside thought that the protesters who were actually inside the shelter as it was being demolished were in more or less danger than a reporter filming the events from 30 feet away.
Both locations from which Nick Moore originally tried to film—on City Hall property itself, and across the street in front of Tony’s Music Box—were logical places for a reporter to set up, because they provided an unobstructed view of the shelter. However, he complied when told to move to the “media staging area” that Woodside designated, which was by the courthouse. It is probably not a coincidence that there was no clear shot of the shelter from that vantage point, because the police officer with Woodside parked his cruiser directly in the way. We might also ask why this police officer drove his cruiser over the curb and into a public park, breaking several by-laws in the process, and then parked in exactly the right spot to block the view of television cameras. This was all the CTV camera could see as a result:
Why was this not settled out of court?
After the events of January 3rd and before we filed the lawsuit, we tried to communicate with the defendants to settle the outstanding legal issues. They ignored the letters we sent them. I called Brad Woodside in his office on April 16th, and he promised to get back to me soon thereafter, but when he still hadn’t called back eight days later, I went down to the courthouse and filed suit. I even wrote in my last letter to Woodside that, if he refused to discuss the matter with us, that we would have no choice but to sue. We were not about to let a mayor get away with lying to his constituents and abusing his power.
On May 23rd, we received a letter from the City of Fredericton’s legal department which indicated that the defendants were finally willing to sit down and negotiate a settlement. (Apparently, all we had to do to get their attention was sue them.) Over the course of the next few months, we had five settlement negotiation sessions. I won’t get into too much detail about what transpired, since both parties signed confidentiality agreements, but I was quoted as saying the following after negotiations broke down:
“All he had to do to settle this lawsuit was sit down with us and say, ‘alright guys, look, I didn’t handle it right. I’m sorry. You guys didn’t actually break the law. We acted without lawful authority and here’s your stuff back.’ ”
– Julian Renaud, quoted in Occupy protesters want Woodside to apologize, published by the Daily Gleaner on July 27th, 2012.
The admission of guilt was the sticking point. The defendants offered us a lot of money on top of the cost of our missing property, but in exchange, we would have had to remain silent about what actually happened, and also accept a statement which absolved Woodside of any wrongdoing. That wasn’t going to happen; we said that there needed to be an admission that the relevant by-law was misrepresented. This caused the negotiations to break down. We would have accepted only compensation for our property and the admission of guilt, but there was no way to get the latter. It was clear to both parties that the matter would have to go to court.
Won’t this cost taxpayers money, as Woodside keeps saying?
Ah, yes—the appeal to “tax rage.” It’s an old trick that politicians use to distract the gullible from the real issues. The real issue here is this: Did Brad Woodside and Murray Jamer break the law? Notice that Woodside just shuts down and refuses to give a straight answer whenever he’s confronted about the fictional by-law provisions that he relied upon to order the destruction of the shelter and protest signs. That, in itself, is telling.
The real irony with Woodside’s “taxpayer money” angle is that he actually wants the cost of this lawsuit to come from taxpayer dollars. The second section of the Dispute Note filed by his lawyer, Michelle Brzak, argues that Woodside and Jamer should not be listed as defendants, as they “were at all times acting in the course of their employment.” If a judge agrees, then Woodside and Jamer would be indemnified by the City and not have to pay any legal costs themselves. We, the plaintiffs, argue quite the opposite; we argue that they exceeded their authority as employees of the City of Fredericton, and should thus pay the costs of the lawsuit and all related damages themselves. The city’s own by-laws state that this is what should happen in such cases, as I will explain below.
Ultimately, any costs of this lawsuit will either be paid by the City’s insurance policy or by Brad Woodside and Murray Jamer directly, depending on the judge’s ruling and on the decision of City Council. Sections 2 and 3 of By-law A-3 make this very clear:
2.01 At all times, there shall be in force a bond or policy of insurance to provide the City with protection against any loss of money, or any other property, which may be sustained by the City through any fraudulent or dishonest act or acts committed by any of its officials acting alone or in collusion with others.
Some or all of the cost may come from Brad Woodside and Murray Jamer directly, however, because section 3.04 indicates that the City will not indemnify an individual who:
(1) has been grossly negligent;
(2) has acted contrary to the terms and conditions of employment;
(3) has acted contrary to an order given by a person in a position of authority;
(4) has brought about or contributed to the claim by reason of fraud or dishonesty.
Frankly, even if this did directly cost the municipality $5,000 per defendant, it would mean that we won the lawsuit, which would in turn mean that the defendants acted unlawfully. In that case, blame for the paltry cost of the lawsuit clearly lies with those who broke the law, not with those who sued them for doing so.
How does the Occupy Fredericton lawsuit address Occupy issues?
Occupy seeks to address broad systemic issues, such as unchecked corporate greed, white-collar crime, stark socioeconomic inequality, and governments which represent the interests of narrow sectors of wealth and power instead of the common people. The last point is, of course, illustrated very well by the issues raised in this lawsuit; a politician can hardly claim to represent the best interests of the same people to whom and about whom he routinely lies. Renaud et al. v. Woodside et al. also addresses tenets of Canadian society that are even more basic and fundamental: no one is above the law, and no matter how inconvenient politicians may find our rights and freedoms to be, they have a duty to respect them.
Here is a video of the plaintiffs signing the Statement of Claim and explaining its nature in Coffee and Friends, courtesy of Cheryl Norrad:
On a personal note, I would like to extend a sincere thank-you to our wonderful public libraries and their knowledgeable staff. They help us to inject facts into our nonsensical public discourse and provide oases of calm rationality in a world that has become anything but. Without them, the long hours of research that have gone into this article and preparations for court would not have been possible. I would also like to thank Dr. Paul Groarke, whose legal expertise has been invaluable.
Written by Julian Renaud.
- ^ Note that “eviction” is not the correct term to use when a municipality forcibly removes a sit-in protest. The media have consistently gotten this wrong. The term “eviction” implies a landlord-tenant relationship, but none exists. In such cases, a municipality will usually issue a Trespass Notice, if they have an applicable piece of legislation that allows them to do so, which is what happened in Toronto.