SUPERIOR COURT OF JUSTICE - ONTARIO

RE: CANADIAN NATIONAL RAILWAY COMPANY, Plaintiff

AND:

CHIEF CHRIS PLAIN, THE CHIPPEWA OF SARNIA FIRST NATION BAND,

JOHN DOE, JANE DOE and PERSONS UNKNOWN, Defendants

BEFORE: D. M. Brown J.

COUNSEL: H. Pessione, for the Plaintiff

HEARD: December 21, 2012

REASONS FOR DECISION

[1] Canadian National Railway Company moves, on an ex parte basis, for interim injunctive relief of the following nature:

(a) an interim injunction restraining, enjoining and prohibiting the Defendants and any person having notice of the order sought herein from, directly or indirectly, by any means whatsoever:

(i) trespassing on the Plaintiff’s right-of-way at Milepost 2.37, at the railway crossing at Degurse Drive (“the Degurse Crossing”), on the Plaintiff’s St. Clair Industrial Spur rail line (the “Spur Line”) located on the Chippewa of Sarnia First Nation Reserve, or anywhere else on the Spur Line;

(ii) physically preventing, impeding, restricting or in any way physically interfering with, or counselling others to impede, restrict or in any way physically interfere with, the Plaintiff’s carrying on of its business and in particular its right to operate trains on the Spur Line;

(iii) physically preventing, impeding, restricting or in any way physically interfering with, or counselling others to prevent, impede, restrict or in any way physically interfere with the removal of any objects from the Spur Line or the maintenance, reconstruction or alteration of the Spur Line;

(iv) threatening or intimidating the Plaintiff’s employees, servants, agents or other persons having business with the Plaintiff;

(v) physically interfering with or counselling others to physically interfere with the performance by the Plaintiff of its contractual relations with its employees, servants, agents, customers or other persons having business with the Plaintiff;

(vi) physically obstructing or otherwise impeding, or counselling others to physically obstruct or impede, the movement or operation of the Plaintiff’s trains on the Spur Line or anything connected with its railway operations; and,

(vii) creating a nuisance by physically obstructing the Plaintiff from carrying on its railway operations.

(b) an Order requiring the Defendants and any persons having notice of the order sought herein to forthwith remove any and all obstructions placed or created or imposed by them to the Plaintiff’s full use of its lands, premises, facilities and equipment on the Spur Line.

CNR also seeks related relief concerning the enforcement of the injunction sought.

[2] This motion was brought ex parte on an emergency basis long after the Court had closed this Friday evening.

II. The events alleged

[3] Mr. Greg Curtis, CNR’s Regional Superintendent, Operations, swore an affidavit in support of the motion. In the following paragraphs I simply reproduce the evidence provided by Mr. Curtis.

[4] Mr. Curtis stated that CN’s St. Clair River Industrial Spur Line is an approximately 14.2 mile single track line that extends from Sarnia, Ontario, to Cortright, Ontario. The Spur line passes through the towns of Corunna and Mooretown, two south western Ontario communities. Sarnia is the largest city on Lake Huron with a mainstay petrochemical production industry. The town of Corunna is known as “Chemical Valley” because of the numerous chemical and other industrial plants in the area, many of which rely on the Spur Line to transport their cargo.

[5] The Spur Line services chemical companies, ethanol plants, plastic plants, fertilizer companies and rail car repair facilities. CN carries many types of freight on the Spur Line between Sarnia and Cortright. CN’s clients that use the Spur Line include, among others, Imperial Oil, Terra International (Canada) Inc., Nova Chemicals and St. Clair Ethanol. Each of these companies typically relies on the Spur Line to transport on average 450 cars of cargo (by way of 4 CN and 2 CSX trains) daily, 7 days a week. Materials carried by CN on the Spur Line include: plastics, ethylene, polyethylene, butane, ammonium nitrate, nitric acid, methanol, manufactured goods, electronics, raw materials, and numerous other types of chemical, industrial and other rail freight, heavily tied to the petrochemical industry.

[6] CN also has operating agreements with CSX Transportation (“CSX”), a U.S. railroad company that operates the largest railroad in the eastern United States. CSX uses the Spur Line on a daily basis as an interchange point for delivery of its rail cars.

[7] Mr. Curtis learned earlier today from Mr. Raymond Currier, CN Police Inspector, Sarnia Yards that:

(a) At or about 9:00 a.m. on Friday, December 21, 2012, he was advised that the Spur Line was being blocked by a number of individuals at Milepoint 2.37, at the railway crossing at Degurse Drive (“the Degurse Crossing”);

(b) Degurse Drive is a paved road in the Chippewa of Sarnia First Nation Reserve. The CN right-of-way for the Spur Line passes through the Reserve at this point;

(c) At approximately 4:55 p.m. Mr. Currier attended at the Degurse Crossing. At that time there were approximately 12 individuals blocking the Spur Line (“the Blockade”). A truck with a snow plow was parked over the two CN tracks, a tent and fire had been erected over the tracks, and a number of lawn chairs were set-up across and beside the tracks, along with fire wood;

(e) The individuals participating in the Blockade refused to identify themselves, but advised him that the reason for the Blockade was to apply pressure on the Federal Government with respect to its recent passing of Bill C-45, and that they did not have any issue with CN;

(f) Mr. Currier requested that the people at the Blockade leave, advised that they were trespassing on CN railway lines, and was advised by them that they were not prepared to leave at that time.

(g) Constable Patrick Nahmabin (Badge #135), a General Duty Constable of the Sarnia City Police, which has jurisdiction over the area in question, attended at the Blockade at approximately the same time, but went off duty at 5:30 p.m. Constable Nahmabian is a member of the Chippewa of Sarnia First Nation Band, (“the Band”) and he recognized members of the Band as the individuals participating in the Blockade.

[8] Mr. Curtis was advised by Brent Ballingall, CN’s Aboriginal Affairs Manager, that at approximately 6:15 p.m. EST he was on a telephone call with Inspector Raymond Currier, CN Police, when the telephone was handed to an individual at the blockade who had refused to identify himself. Mr. Currier was advised by Brent Ballingall that he spoke to this person who identified himself to Brent as Chief Chris Plain, Chief of the Chippewa of Sarnia First Nation Band. Brent requested that Chief Plain leave and have the other protesters leave the Blockade so that CN could carry on with its business, and Chief Plain refused, indicating that he did not control the people at the Blockade. He indicated to Brent that they would leave at some point but refused to indicate when that would be.

[9] As to the impact of this blockade on CN’s operations on the Spur Line, Mr. Curtis deposed that the blockade is preventing the movement of CN’s and CSX’s trains on the Spur Line. As of approximately 9:00 a.m. on December 21, 2012, CN made the decision, in the interests of public safety, not to run any trains through the Degurse Crossing until a Court Order was obtained, and steps were taken to remove the Blockade. By 8:00 p.m. on December 21, 2012, 2 CN freight trains and 1 CSX freight train that were otherwise scheduled to deliver cargo would have been held at origin. These trains contain a combination of chemical and other industrial products.

[10] Mr. Curtis stated that the Blockade will cause significant economic damage to CN, its customers and others. There is a CSX Transportation rail line in the vicinity, however, it is his understanding that the CSX line does not have the connections or capacity to deliver the traffic carried on the Spur Line. There is no other work-around to avoid the Blockade. Therefore, all the traffic between Sarnia and Cortright will quickly become backlogged. The result will be delays to customers which delays will exceed the time of the actual blockade. This is because start-up problems mount for every hour the Spur Line is blocked - customers simply cannot process two days’ worth of traffic in one day, resulting in further backlogs. In turn, this will produce a shortage of empty equipment for subsequent loading, creating a further compounding effect. By the time the backlog is cleared, the costs of these compounded delays will be much greater than the sum of the costs of the individual train delays.

[11] According to Mr. Curtis, CN contracts with its customers to deliver goods within specified periods of time. Many of the shipments are extremely time sensitive, “just-in-time”, deliveries and CN’s customers have very limited capacity for on-site storage where CN fails to transport cargo as scheduled.

[12] Mr. Curtis deposed that a significant number of CN customers in the “Chemical Valley” area and elsewhere across Canada and the U.S. will be affected by the interruption in rail service. As CN’s flow of traffic is disrupted, other service in the CN system will quickly start to decrease due to an imbalance of motive power, crews and freight equipment.

[13] Mr. Curtis stated that the Blockade of CN’s train operations will also have a significant impact on CN’s employees. CN employs significant numbers of persons in immediate train service as crews, in train and yard operations, as well as in the mechanical department who inspect the trains and persons in the engineering group who are responsible for inspecting and repairing track. A cessation of rail service, beyond even a day, may result in CN laying off some of these employees.

[14] Mr. Curtis expressed the view that the resulting impact on CN’s operations will cause irreparable harm to CN and others, including the following harm:

(a) the layoff of employees, as well as a loss of productivity associated with the disruptions;

(b) delays in the delivery of commodities and goods and extended yard or line holding of such goods, including chemicals and hazardous commodities, and manufactured goods;

(c) increased yard congestion at CN’s facilities including increased costs of yard crew activities;

(d) disruption of motive power (engine) cycles from a normal balanced use and routings affecting CN’s operations; and,

(e) loss of revenue to CN and increased costs to CN’s customers.

Mr. Curtis deposed that the scale and extent of these losses would be extremely difficult, if not impossible, to quantify in monetary terms.

[15] Mr. Curtis stated that he was authorized on behalf of CN to depose that CN will abide by any order concerning damages that the Court might make if it is found that the granting of the order sought causes compensable damages to the defendants.

III. The general principles

[16] The test for obtaining an interlocutory injunction is well known and was articulated by the Supreme Court of Canada in RJR-MacDonald Inc. v. Canada (Attorney General):

(i) The moving party must demonstrate a serious question to be tried. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. A motions court should only go beyond a preliminary investigation of the merits when the result of the interlocutory motion will in effect amount to a final determination of the action, or when the constitutionality of a challenged statute can be determined as a pure question of law. Instances of this sort will be exceedingly rare. Unless the case on the merits is frivolous or vexatious, or the constitutionality of the statute is a pure question of law, a judge on a motion for relief must, as a general rule, consider the second and third stages of the Metropolitan Stores test;

(ii) The moving party must convince the court that it will suffer irreparable harm if the relief is not granted. 'Irreparable' refers to the nature of the harm, rather than its magnitude; and,

(iii) The third branch of the test requires an assessment of the balance of inconvenience. In addition to the damage each party alleges it will suffer, the interest of the public must be taken into account. The effect a decision on the application will have upon the public interest may be relied upon by either party.[^1]

[17] On a motion such as the one which CNR has brought, the court must also scrutinize the evidence in light of the duty of an ex parte moving party to make full and frank disclosure of all material facts, including putting before the court the arguments the responding party likely would make, to the extent known by the moving party.

[18] Further, the Court of Appeal emphasized, in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council,[^2] that when injunction motions involve aboriginal communities, certain principles must be kept in mind:

(i) Negotiation, not litigation, is the best way for the country to reconcile the claims of aboriginal communities with the rights of the Crown; and,

(ii) The rule of law is “highly textured”, with one dimension of the principle involving the respect for minority rights and the reconciliation of aboriginal and non-aboriginal interests through negotiations.

[19] Finally, the protestors in the present case are exercising expressive freedoms enjoyed under the Canadian Charter of Rights and Freedoms, but as I examined at length in Batty v. City of Toronto,[^3] expressive rights are not absolute and are subject to reasonable limits.

IV. Analysis

[20] CN brought this motion on an ex parte basis. Given that the protestors refused to identify themselves and given the exigent circumstances caused by the blockage, I am prepared to consider the motion on that basis.

[21] I am satisfied that CN has demonstrated a serious issue to be tried. The protestors are trespassing on CN’s Spur Line and are blocking rail traffic. During oral argument counsel showed me a photograph of the blockade of the rail line by a truck with a snow-plough which appeared today in the Sarnia Observer. The trespass and obstruction were obvious.

[22] I am also satisfied that CN has demonstrated that it will suffer irreparable harm if an injunction were not granted. Mr. Curtis described the important role played by the Spur Line in servicing local industries and the economic disruption a continued blockade would have. Such widespread economic harm to industries in an area constitutes harm of an irreparable nature.

[23] Turning to the balance of convenience, again CN has demonstrated that unless an injunction restraining the blockade is granted, its operations will be significantly disrupted and third parties will suffer economic harm. The protestors obviously are engaged in a form of expressive activity, but according to the information learned by Mr. Curtis, the protestors do not have a complaint against CN, the property owner; their ire is directed toward the federal Parliament which passed legislation to which they object. Persons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others, such as CN. Given the alternative locations for expressive conduct open to the protestors, and the economic disruption their expressive activity most probably will have on other industries, the political nature of the message expressed by the protestors carries little weight in the balance of convenience analysis in the particular circumstances of this case.

[24] Moreover, from the information learned by Mr. Curtis, the protest does not involve a claim to aboriginal title or aboriginal rights in connection with the property upon which the protest is taking place. The protest is more in the nature of an expression of opposition by one group of Canadian citizens to legislation which they oppose. As a result, the factors identified by the Court of Appeal in the Haudenosaunee Six Nations Confederacy Council play little role in the circumstances of this case.

[25] In sum, the balance of convenience favours CN.

V. Conclusion

[26] For the reasons set out above, I am satisfied that an injunction should issue in the form sought by CN. Since the motion was brought on an ex parte basis, the injunction must be limited in duration. I limit the duration of the order until Thursday, December 27, 2012. If CN wishes to continue the order, it may move before me on December 27, 2012, at 10:30 a.m. in courtroom 8-6, 330 University Avenue, Toronto. In addition, I have included in the order a provision entitling any affected person to move to vary this order on 24 hours’ notice. I have signed the order.

(original signed by)________

D. M. Brown J.

Date: December 21, 2012

[^1]: 1994 117 (SCC), [1994] 1 S.C.R. 311.

[^2]: (2006), 2006 41649 (ON CA), 82 O.R. (3d) 721 (C.A.)

[^3]: 2011 ONSC 6862