HAMILTON — The judge overseeing certifying a class action lawsuit against the Haudenosaunee Development Institute (HDI) has recognized at least four of the claims being made have merit.
In a decision given on September 12 Justice R.A. Lococo said that four items; breach of trust, breach of fiduciary duty, negligent or fraudulent misrepresentation and oppression have tenability to be argued in the case.
The claim was filed by Wilf Davey and Bill Monture against defendants Hazel Hill, Brian Doolittle, Aaron Detlor, HDI, 2438543 Ontario Inc., Ogwawista Dedwahsnye Inc. and Elvera Garlow.
Davey and Hill allege in the claim that Detlor was retained by the Haudenosaunee Confederacy Chiefs Council (HCCC) to act as their lawyer and negotiate deals with land developers. They claim Detlor then founded the Haudenosaunee Development Institute with board members Hill and Doolittle and that HCCC delegated HDI to responsibly “protect the rights and interests of the Chiefs Council and the Haudenosaunee People, and would not act in conflict with their interests.”
According to the claim, Detlor, Hill and Doolittle created an Ontario corporation “to purchase Haudenosaunee land and divert funds properly belonging to the Chiefs Council and the Haudenosaunee people.”
The claim also alleges “Elvera Garlow….created the defendant Ogwawista to divert funds properly belonging to the Chiefs Council and the Haudenosaunee people” and that “the Chiefs Council and the Haudenosaunee people suffered damages as a result of those actions.”
The claim alleges Detlor, Hill and Doolittle “breached their fiduciary duty to act honestly, loyally and in good faith” for funds they managed under 2438543 Ontario Inc..
HDI announced the numbered corporation a year after its creation to Six Nations in a July 2015 newsletter. In it they said that the provincial corporation or “NewCo” was created in 2014 to carry on activities which provide a benefit for the Haudenosaunee people, promote and protect language and ceremonies and to uphold the HCCC’s 8 points of jurisdiction.
According to HDI, the Ontario corporation was to be considered a vehicle by which the HCCC could receive money they accepted for developments taking place across the 1701 treaty lands, also known as the Dish with One Spoon territory.
In at least one of those contracts, the language states the money the numbered company receives would be used for the benefit of the Haudenosaunee people.
Additional claims in the lawsuit allege a breach of fiduciary duty by Elvera Garlow as director of HDI’s federal financial management corporation known as Ogwawista Dedwahsnye Inc..
HCCC’s lawyer Aaron Detlor is also being sued for breach of contract and breach of fiduciary duty.
Lococo writes the plaintiffs claim Detlor was retained by the HCCC to act as their lawyer with respect to development projects on Haudenosaunee land and that Detlor had a responsibility to act in good faith. The plaintiffs say they suffered damages as a result of Detlor breeching that contract.
Additional claims against the HDI and its officials allege the numbered company, Ogwawista and the individual directors engaged in fraudulent misrepresentation of the Haudenosaunee people and have added an additional claim of Oppression.
The relief from oppression claim is specifically against 2438543 Ontario Inc. under the Ontario Business Corporations Act — which protects an entities shareholders against prejudice and prevents corporations from disregarding their interests.
The plaintiffs say all of the Haudenosaunee people are shareholders according to the corporations construction, and that they relied on the defendants to “protect the rights of the class but instead, the defendants misappropriated the funds.”
HDI’s lawyers sought to have all of the mentioned claims tossed but were unsuccessful.
Lococo disagreed writing in his judgement that he does not agree “that it is plain and obvious that the plaintiffs’ claim has no reasonable chance for success”.
None of the claims have been proven in court, however it is now seeking certification as a class action.
In his decision from September 12 Justice Lococo writes that the plaintiffs are seeking $50 million in damages for the proposed class members, referred to in the claim as “the Haudenosaunee People”.
Lawyers for the plaintiffs are seeking to be awarded costs as a result of the judge’s decision. Those are expected to be reviewed on October 3.