Court File and Parties

COURT FILE NO.: CV-20-00643150-0000 DATE: 20200703 SUPERIOR COURT OF JUSTICE - ONTARIO

B E T W E E N:

Canadian National Railway Company, Plaintiff

– and –

John Doe et al., Defendants

BEFORE: F.L. Myers J.

COUNSEL: Marina E. Sampson, Andy Pushalik, and Meredith Bacal for the Plaintiff

HEARD: July 3, 2020

Endorsement

1On June 26, 2020, I granted CN’s request for an injunction to prevent protesters from trespassing on or too near its Brampton Intermodal Hub facility and from blocking its trains. My endorsement of that day is reported at 2020 ONSC 3998.

2The order was made “quia timet” or in relation to imminently apprehended harm. There was no blockade of CN’s trains that day. There had been a blockade two days previously and the evidence showed another blockade was expected on the 26th as discussed in my endorsement of that date.

3On June 26, 2020, CN did not provide notice to anyone in advance of attending court to seek its injunction. As the harm had not yet happened, there was no one who could be readily identified as being affected by the order sought to whom notice ought to have been given.

4Under Rule 40.02(1) of the Rules of Civil Procedure, RRO 1990, Reg 194, an injunction made without notice to the person or people affected may not exceed ten days duration. The order made June 26, 2020 provided for CN to come back to court one week later i.e. today.

5CN attends today and seeks a thirty-day extension of the injunction. There is clear evidence of a significant protest having been organized for this weekend near CN’s Brampton Intermodal Hub facility. There is once again a strong likelihood that the protesters will block CN’s trains and trespass on its property. This is a well organized and advertised protest. One slogan used by some protesters expressly calls for protesters to “take the rails”.

6I note that while I drew the same inference last week, the protesters did not trespass on CN’s land nor block its trains. However, that was a more impromptu event. I do not take from that one evening a determination that the blockades are over.

7But, because no one actually trespassed or blockaded its trains last week, CN did not serve its injunction on anyone. It arrives at court today once again without notice to any defendants.

8Rule 40.02(2) provides that where an injunction is granted without notice, a motion to extend “may be made only on notice to every party affected by the order” unless the judge is satisfied that there are “exceptional circumstances”. Rule 40.02(3) then provides that an extension may be granted without notice for an additional ten days.

9It appears from these rules that for CN to appear today to request an extension without serving anyone, it must establish “exceptional circumstances”. Then it may seek an extension for up to another ten days.

10CN asks for an extension of 30 days. It is hesitant to serve its injunction if it does not need to do so. It does not want to inflame protesters unnecessarily. It does not want to keep using court time unnecessarily. Moreover, it argues that the fact that the protesters did not blockade CN’s tracks last week shows that they can protest perfectly well without invading CN’s rights, endangering it people, it business, and protesters themselves. As Ms. Sampson says, we are not out of the woods yet. Thirty days will provide a cushion for everyone’s safety.

11As attractive as that may be from a point of view of convenience, the balance here involves peoples’ fundamental rights to express themselves, assemble, and protest. The law does not enjoin protesters to provide a cushion for safety just in case they might go too far.

12In MacMillan Bloedel Ltd. v. Simpson, McLachlin J., as she then was, wrote:

In a society that prizes both the right to express dissent and the maintenance of private rights, a way to reconcile both interests must be found. One of the ways this can be done is through court orders like the one at issue in this case. The task of the courts is to find a way to protect the legitimate exercise of lawful private rights while preserving maximum scope for the lawful exercise of the right of expression and protest.

13Injunctions are very serious orders. They put people at risk of being jailed for contempt of court. The law recognizes the need for people to have a say in whether they ought properly to be enjoined before being exposed to such serious risks especially when they are otherwise engaging in constitutionally protected behaviour.

14I recognize that there is no right to engage in protest on someone’s private land as discussed last week. But I cannot prejudge, in a without notice hearing, all of the myriad of facts and nuances by which protesters’ behaviour may manifest. To properly engage in the balancing required by the Supreme Court of Canada, I adopt the following statement of the British Columbia Court of Appeal in Provincial Rental Housing Corporation v. Hall, 2005 BCCA 36 at para. [20]:

When no notice is given to protesters of an application for injunctive relief, it seems to me that even where extraordinary urgency can be made out by the applicant, the granting of a short, time-limited injunction would be a preferable form of order. Granting an injunction for a short period limits the risk of irreparable harm to the plaintiff while ensuring that notice can be given to the protesters and others who may be affected by the order. Preparation of material and a contested hearing are then possible. Among other matters that can be heard at the contested hearing, submissions can then be directed at how the lawful exercise of the right of freedom of expression, which includes protest, is to be taken into account in weighing the balance of convenience and, if an interlocutory order is required, how freedom of expression can be minimally impaired.

15I am satisfied that the circumstances before the court are exceptional. 2020 is exceptional. We are in the midst of a global pandemic, a once-in-a-generation period of societal upheaval, widespread protests, and unprecedented fragility of the economy and social institutions including policing. CN did not jump the gun last week as its evidence of a serious threat of a breach of its rights was strong. It cannot be faulted for not serving its injunction in the circumstances. The harm could have easily outweighed the good achieved by doing so. The evidence today of the imminence of harm is as strong as or stronger than last week in light of the extra organization of the upcoming protests. The risk of harm to CN and to people standing on railway tracks in front of moving trains is serious and real. It has been a frequent occurrence in protests in Canada this year (and as recently as last week).

16In all, for the reasons given in last week’s endorsement and in my February endorsement incorporated in last week’s endorsement, I find that the three-part test for interlocutory injunctions and imminence of harm are all made out. As the order should impair peoples’ rights as little as possible and those who might become affected need to be able to have their say quickly on the basis that it will be CN’s burden to continue the order rather than a protester’s burden to move to set it aside, I limit the continuation of the order dated June 26, 2020 to ten days and schedule a further hearing, on notice, on July 13, 2020 at 2:00 pm by Zoom.

17If CN does not need to serve its order because protesters are not trespassing despite the threat to do so, I am dubious of the ongoing need for injunctive relief.

18The terms set out in schedule “A” apply to the order signed.

19Finally, I must commend the plaintiff’s counsel on their presentation and their written materials. Counsel’s forthright disclosure of facts and case law that could be argued against their position exemplified the highest standards of professionalism.

F.L. Myers J. Date: July 3, 2020

SCHEDULE “A”

TERMS INCORPORATED INTO ORDERS

1. Upon the courthouse reopening to the public, each party shall file with the Civil Motions Office a copy of all the material he, she, or it delivered electronically for this proceeding, with proof of service, and pay the appropriate fees therefor.

2. Notwithstanding Rule 59.05, this Order is effective from the date it is made and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal Order need be entered and filed unless appeal or a motion for leave to appeal is brought to an appellate court. Any party to this Order may nonetheless submit a formal Order for original signing, entry and filing when the Court returns to regular operations.