Canadian National Railway Company v. Doe et al.
[Indexed as: Canadian National Railway Co. v. Doe]
Ontario Reports
Ontario Superior Court of Justice,
D.M. Brown J.
January 7, 2013
114 O.R. (3d) 126 | 2013 ONSC 115
Case Summary
Injunctions — Interim injunction — Aboriginal protestors blockading plaintiffs Toronto-Montreal railway line to show support for First Nations chiefs in upcoming meeting with prime minister — Plaintiff applying for ex parte interim injunction restraining protest and clearing tracks — Application granted — Plaintiff having strong case that protestors were trespassing on its property — Blockade causing irreparable harm to plaintiff's operations and customers — Neither expressive nature of protest nor aboriginal identity of protestors affecting conclusion that balance of convenience favoured plaintiff.
Aboriginal protestors blockaded the plaintiff's Toronto-Montreal main railway line to show support for First Nations chiefs in their upcoming meeting with the [page127] prime minister. The plaintiff applied for an ex parte interim injunction restraining the protest and clearing the tracks.
Held, the application should be granted.
There was an overwhelming case that the protestors were trespassing on the plaintiff's property and tortiously interfering with the main line. The blockade had caused and would continue to cause irreparable harm to the plaintiff and its customers. Neither the expressive nature of the protest nor the aboriginal identity of the protestors affected the conclusion that the balance of convenience favoured the plaintiff.
Cases referred to
Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council (2006), 2006 CanLII 41649 (ON CA), 82 O.R. (3d) 721, [2006] O.J. No. 4790, 277 D.L.R. (4th) 274, 31 C.P.C. (6th) 11, 36 C.P.C. (6th) 199, 240 O.A.C. 119, 154 A.C.W.S. (3d) 183, 73 W.C.B. (2d) 469 (C.A.), consd
Other cases referred to
Batty v. Toronto (City) (2011), 108 O.R. (3d) 571, [2011] O.J. No. 5158, 2011 ONSC 6862, 248 C.R.R. (2d) 175, 12 R.P.R. (5th) 26, 90 M.P.L.R. (4th) 250, 342 D.L.R. (4th) 129, 209 A.C.W.S. (3d) 542 (S.C.J.); Canadian National Railway Co. v. Plain (2012), 114 O.R. (3d) 27, [2012] O.J. No. 6184, 2012 ONSC 7356 (S.C.J.); Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008), 91 O.R. (3d) 1, [2008] O.J. No. 2651, 2008 ONCA 534, [2008] 3 C.N.L.R. 119, 239 O.A.C. 257, 295 D.L.R. (4th) 108, 56 C.P.C. (6th) 237, 168 A.C.W.S. (3d) 301; Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 1998 CanLII 1441 (ON CA), 38 O.R. (3d) 448, [1998] O.J. No. 1824, 43 C.L.R.B.R. (2d) 48, 110 O.A.C. 297, 98 CLLC Â220-046, 79 A.C.W.S. (3d) 301 (C.A.); R. v. Mammolita, 1983 CanLII 3563 (ON CA), [1983] O.J. No. 151, 9 C.C.C. (3d) 85, 10 W.C.B. 374 (C.A.); RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, J.E. 94-423, 60 Q.A.C. 241, 54 C.P.R. (3d) 114, 46 A.C.W.S. (3d) 40
Statutes referred to
Canadian Charter of Rights and Freedoms
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 35, (1)
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 141
Criminal Code, R.S.C. 1985, c. C-46, ss. 430(1), 495(1)
Interpretation Act, R.S.C. 1985, c. I-21, s. 34(1)
Police Services Act, R.S.O. 1990, c. P.15 [as am.]
Railway Safety Act, R.S.C. 1985, c. 32 (4th Supp.), ss. 26.1, 41(1)
Trespass to Property Act, R.S.O. 1990, c. T.21, ss. 2, 9(1)
APPLICATION for an interim injunction.
C. Bredt and H. Pessione, for plaintiff.
D.M. BROWN J.: —
I. Blockage of the Toronto-Montreal Railway Main Line
[1] At around 4:00 p.m. this past Saturday, January 5, 2013, a small number of protesters blocked the Toronto-Montreal main line of the Canadian National Railway Company, bringing freight and passenger traffic to a halt. Shortly before 9:30 p.m. Saturday night, CN appeared before the court to seek an [page128] ex parte interim injunction restraining the protest and clearing the tracks. I granted an injunction order in the form set out in Appendix "A" to these reasons. I ordered that the blockade cease no later than 12:01 a.m. on Sunday, January 6, 2013. In the result, the protestors left the site around 12:00 a.m. Sunday morning but not, as it turns out, because the police had assisted in enforcing the order. In my endorsement Saturday night, I stated I would give written reasons today for granting the injunction order.
II. Basic Facts
A. Operations on the Toronto-Montreal main line
[2] According to the affidavit of William Albritton, CN's general superintendent, Eastern Region, that operational region includes all of CN's rail operations east of Sarnia, Ontario:
(i) The Kingston Subdivision runs from Toronto east to Montreal, Quebec. In the Eastern Region, CN's Transcontinental main line runs from Dugald, Manitoba eastbound through Toronto, Montreal and to Halifax, Nova Scotia (the "main line"). In the area between Belleville, Ontario east to Kingston, the main line is a three-track rail corridor allowing for trains to travel both east and west at the same time and is the main rail line between Toronto and Montreal. CN owns the property on which the main line operates;
(ii) CN carries every manner and type of rail freight on the main line between Toronto and Montreal. This rail corridor is the one of the busiest in the entire CN rail service. Materials carried by CN on this portion of the main line include steel, aluminum, food products (including perishables), lumber, wheat and other grains, butane, propane, aviation fuel, paper, finished automobiles, manufactured goods, electronics, parts and raw materials for the automobile industry, and numerous other types of rail freight;
(iii) CN trains are scheduled to travel eastbound and westbound between Toronto and Montreal daily on the main line. CN operates an average of 18 commodity, mixed freight and container freight trains daily over the main line between Toronto and Montreal, with nine westbound and nine eastbound. These trains are typically 110 to 190 cars in length, and each may carry freight for 90 or more customers; [page129]
(iv) in addition, CN operates two trains daily, one loaded and one empty, to carry fuel for Ultramar. These are dedicated trains of about 70 cars in length. CN also operates one unit train per week on average of about 100 cars carrying grain from the prairie provinces to eastern ports and one empty grain train returning to the Prairies. In addition to the longer haul trains, CN also operates five local freight trains which are based in Belleville and Brockville, Ontario and which utilize the main line in the area to serve customers in and between those communities;
(v) the value of the commodities CN handles utilizing the Toronto-Montreal corridor is over $80 million per day;
(vi) CN has operating agreements with VIA Rail Canada Inc. ("VIA") for rail passenger trains to run both east and westbound on the main line. There are 24 VIA passenger trains that daily use this area of the main line with 14 trains travelling between TorontoMontreal and ten trains travelling between Toronto-Ottawa. These trains are typically four to five coaches in length with one locomotive. CN earns substantial revenue from VIA for handling their passenger trains.
B. The events of the blockade
[3] In his affidavit, Mr. Albritton described the events surrounding the blockade as follows:
- I am advised by Shane Genoway, CN Police Inspector, that:
(a) At or about 4:00 p.m. on Saturday, January 5, 2013, he was advised that the Main Line was being blocked by a number of individuals at Milepoint 209.03, at the Wymans Road Crossing (the "Wymans Crossing"), in the Kingston Subdivision of the Main Line;
(b) Wymans Road is a paved road in the Mohawks of the Bay of Quinte/Tyendinaga Mohawks (the "Tyendinaga First Nation") Reserve. The CN right-of-way for the Main Line passes through the Reserve at this point;
(c) At approximately 5:30 p.m. he attended at the Wymans Crossing. At that time, there were approximately 15 individuals blocking the Main Line (the "Blockade") by intermittently walking across the rail line. The individuals he observed at the Blockade all had their faces covered. The railway crossing had been activated and there were fires on the north and south sides of the tracks, and a pickup truck parked on the north side of the tracks;
(d) The individuals participating in the Blockade refused to identify themselves to him, apart from one specific individual who [page130] appeared to be the spokesperson. The spokesperson gave his name but was difficult to understand due to the covering on his face. It sounded like Dan Dorion ("Dan"). He asked Dan to repeat his name but Dan refused;
(e) Dan advised him that the reason for the Blockade was to show support for First Nations Chiefs in their upcoming meeting with Prime Minister Stephen Harper, and that the protesters did not have any issue with CN;
(f) He asked Dan how long the Blockade would last and he was advised that it was "open ended" . . .
The Blockade is preventing the movement of CN's and VIA's trains on the CN's Main Line and CN has made the decision, in the interests of public safety, not to run any trains through the Wymans Crossing until a court order is obtained, and steps are taken to remove the blockade.
I am advised by Brent Ballingall, CN's Aboriginal Affairs Manager ("Mr. Ballingall"), that:
(a) He has been in contact with Chief Donald Maracle, Chief of the Tyendinaga First Nation. Chief Maracle has advised that neither he nor the Council support the Blockade; and
(b) To the best of his knowledge, the Tyendinaga First Nation has never advanced a land claim concerning the Wymans Road Crossing, or any other CN crossing in Tyendinaga territory.
C. The impact of the blockade
[4] The effects of the blockade were described by Mr. Albritton in the following terms:
As of approximately 8:00 p.m. on January 5, 2013, five freight and intermodal (container) trains are blocked, with approximately 125 cars each. A sixth train will be blocked by approximately 10:00 p.m. on January 5, 2013. By 7:00 a.m. on Sunday, January 6, 2013, nine additional freight and intermodal trains will be held at Montreal or Toronto due to the Blockade.
I am informed by Denis Pinsonneault, Chief Operating Officer at VIA Rail ("Mr. Pinsonneault"), as follows:
(a) As of 7:45 p.m. on January 5, 2013, 4 passenger trains have been impacted (approximately 1,000 passengers). Buses have been deployed to begin moving these passengers to their destination. However, the passengers will be significantly delayed and VIA will incur significant costs and logistical difficulties rerouting the impacted trains and passengers;
(b) If the Blockade continues into Sunday, January 6, 2013, approximately 20 trains and 7,000 customers will be impacted. It is one of the busiest days of the year for VIA travel on the Main Line. It would be impossible to mitigate the impact of the Blockade on January 6, as there are not enough busses available to VIA to reroute passengers; and
(c) If the Blockade continues into Monday, January 7, 2013, approximately 27 trains and 3,000 customers will be impacted. This [page131] does not include a significant number of commuters. Again, VIA would make efforts to mitigate the impact of the Blockade by deploying busses, but would incur significant costs and logistical difficulties rerouting the impacted trains and passengers.
The blockade will cause significant economic damage to CN, its customers and others. There is a Canadian Pacific rail in the vicinity, however, it is my understanding that the Canadian Pacific rail line does not have the physical straightaway connections or capacity to deliver more than a very small percentage of the traffic carried on the Main Line. There is no other workaround to the Blockade.
All the eastbound and westbound traffic between Toronto and Montreal 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 amount for every hour the Main 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, costs of these compounded delays will be much greater than the sum of the costs of the individual train delays.
CN contracts with its customers to deliver goods within specified periods of time. Many of the shipments are extremely time sensitive, particularly foodstuffs, the intermodal or container shipments, which are often destined for overseas shipment to international customers, and the freight and commodities for "just-in-time" delivery such as parts for the auto industry and the fifteen tankers of jet fuel transported daily for Air Canada and other airlines.
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.
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 person in the engineering group who are responsible for inspecting and repairing track. Toronto is the major distribution centre for CN's system in Eastern Canada for the traffic to the United States, Montreal, the Atlantic provinces, Western Canada and the rest of Ontario. A cessation of rail service beyond even a day, will result in CN laying off some of these employees.
The resulting impact on CN's operations will cause irreparable harm to CN and others. Such harm includes the following:
(a) the layoff of employees as indicated above, as well as a loss of productivity associated with disruptions;
(b) delays in the delivery of bulk commodities and goods and extended yard or line holding of such goods, including chemicals and hazardous commodities, food products (including perishables), automotive parts and automobiles (which are highly sensitive to damage and theft), lumber and forest products and manufactured goods; [page132]
(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.
- The scale and extent of these losses would be extremely difficult, if not impossible, to quantify in monetary terms.
[5] CN gave an undertaking as to damages.
III. The Governing Legal Principles
[6] 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;
(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]
[7] On an ex parte motion, such as the one which CN brought, the court must also scrutinize the evidence in light of the duty of a 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.
IV. Analysis
A. Serious question to be tried
[8] The evidence filed by CN demonstrated an overwhelming case that the protesters were trespassing on its property and were tortiously interfering with the use of the main line [page133] by itself and VIA. CN met the first branch of the RJR-MacDonald test.
B. Irreparable harm
[9] To simply set out above the evidence of Mr. Albritton about the impact of the blockade is to establish that the conduct of the protesters had caused and would continue to cause irreparable harm to CN, VIA and those who used the main line for personal and freight transportation.
C. Balance of convenience
C.1 The comparative harm to each party
[10] On a standard analysis, the balance of convenience overwhelming favoured CN. Simply put, the protesters had no legal right to be doing what they were doing.
C.2 The issue of freedom of expression
[11] That conclusion does not change because the protesters, according to Mr. Albritton, contended that they were blocking the main line to show support for First Nations chiefs in their upcoming meeting with Prime Minister Harper. While expressive conduct by lawful means enjoys strong protection in our system of governance and law, expressive conduct by unlawful means does not. No one can seriously suggest that a person can block freight and passenger traffic on one of the main arteries of our economy and then cloak himself with protection by asserting freedom of expression. The Canadian Charter of Rights and Freedoms does not offer such protection, as I examined at length in Batty v. Toronto (City).[^2]
C.3 The identity of the protesters as members of a First Nation
[12] Nor does that conclusion change because it appeared from the evidence that the protesters were members of a First Nation making a statement on a matter of current politics.
[13] Although in Henco Industries Ltd. v. Haudenosaunee Six Nations Confederacy Council[^3] the Court of Appeal stated that when injunction motions involve aboriginal communities, negotiation, not litigation, is the best way for the country to [page134] reconcile the claims of aboriginal communities with the rights of the Crown, that court clarified, two years later in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation,[^4] that the "stage at which the comprehensive and nuanced description of the rule of law expressed in Henco must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982".[^5]
[14] On the evidence placed before me, the "highly textured" or "nuanced" elements of the rule of law which the Court of Appeal found are engaged in the circumstances of a s. 35 land dispute had no application to 15 people standing on the CN main line saying they were showing support for First Nations chiefs in a forthcoming meeting with the prime minister. Such conduct had nothing to do with the process involved in sorting out land or usage claims under s. 35 of the Constitution Act, 1982; it was straightforward political protest, pure and simple. Just as 15 persons from some other group would have no right to stand in the middle of the main line tracks blocking rail traffic in order to espouse a political cause close to their hearts, neither do 15 persons from a First Nation. For this reason, I would not regard the aboriginal identity of the protesters or their message as immunizing them from the standard balance of convenience analysis on a motion for an interlocutory injunction.
C.4 The question of the enforcement of an injunction
[15] Let me turn to address one final matter which I considered when deciding whether to issue the injunction order. We seem to be drifting into dangerous waters in the life of the public affairs of this province when courts cannot predict, with any practical degree of certainty, whether police agencies will assist in enforcing court injunctions against demonstrators who will not voluntarily cease unlawful activities, such as those carried on by the protesters in this case. Just over two weeks ago, on December 21, 2012, I issued an injunction requiring First Nation protesters blocking a CN spur line in Sarnia to remove [page135] "forthwith" their obstructions.[^6] To my astonishment, the local police failed to assist in enforcing that order until January 2, 2013, under pressure from another judge of this court, a passage of almost two weeks. In that case, the failure of a police agency to assist in enforcing a court order prompted me to query whether, as a matter of the balance of convenience analysis, a court should take into account the willingness of the local police agency to enforce a court order:
[L]ocal police agencies cannot ignore judicial orders under the guise of contemplating how best to use their tactical discretion. Such an approach would have the practical effect of neutering court orders. It is not the purpose of a court order simply to initiate talks or consultations between the police and those whom the court has found to have breached the law. A court order is not one amongst several chips to be played in an on-going contest between the police and transgressors of legal rights. On the contrary, a court order is intended to initiate the process of bringing unlawful conduct to an end in a short period of time so that the harm which the court has found to be irreparable is brought to an end.
[I]f those upon whom the courts rely to enforce the law have decided, in effect, that the writ of the courts does not run against particular groups or particular political messages, and that disputes involving such groups or messages should be determined in accordance with the respective strengths of the protagonists' political wills, then I do not see how courts can involve themselves productively in such situations. Courts do not engage in contests of political wills. Under our constitutional system courts are to remain outside such contests of political wills.
. . . As a judge, I make an order expecting it will be obeyed or enforced. If it will not be enforced, why should I make the order? An order which will not be enforced is simply a piece of paper with meaningless words typed on it, and making a meaningless order only undermines the authority and concomitant legitimacy of the courts.[^7]
[16] Turning to the present case, that protesters could be allowed to block the main line at the Wymans Crossing for five hours last Saturday before CN could get to court, a mere week after a similar blockade of the main line had taken place in the Marysville area, raised concerns in my mind about the willingness of the relevant police agency to enforce the law. However, given the significant harm being caused by the protesters' activities, I granted the injunction order requiring the blockade to be removed by 12:01 a.m. yesterday. [page136]
[17] The repeated applications by a major railway owner to this court in the past few weeks to secure injunctions to remove blockades of their operating lines prompt the larger question of why, in these sorts of circumstances, a property owner has to resort to the courts for a remedy. Let me make two simple points.
[18] First, a judge of this court cannot order a police agency to enforce a civil court order, such as the kind of injunction granted in this case. Section 141 of the Courts of Justice Act[^8] provides:
141(1) Unless an Act provides otherwise, orders of a court arising out of a civil proceeding and enforceable in Ontario shall be directed to a sheriff for enforcement.
(2) A sheriff who believes that the execution of an order may give rise to a breach of the peace may require a police officer to accompany the sheriff and assist in the execution of the order.
As the Court of Appeal made clear in Ogden Entertainment Services v. United Steelworkers of America, Local 440 at para. [10]]:
We are of the opinion that there is no basis for directing the OPP to enforce an order arising out of a civil proceeding. Unless a statute directs the contrary, such an order should be directed to a sheriff for enforcement. In the present circumstances, there is no statute directing the contrary. Where the enforcement of an order may give rise to a breach of the peace, the sheriff may require a police officer to assist in the execution. No order is required to gain this assistance.[^9]
Nevertheless, as a practical matter, in situations of public demonstrations, such as occurred in this case, the assistance of a police agency is required if any hope exists to enforce an injunction order.
[19] That process unfolded in the present case. When I learned Sunday from reading the news media that the blockade had ended earlier in the morning, I asked plaintiffs' counsel to submit an affidavit describing how that had come about. According to the affidavit, the local sheriff had received a copy of the injunction order by 10:30 p.m. Saturday night, within an hour of its making. CN asked the sheriff to serve the injunction order on the protesters at the blockade. The local sheriff advised that she then contacted Ontario Provincial Police Staff Sergeant Scott Semple, who was the officer on scene at the blockade. S/Sgt. Semple stated that it was too dangerous to attempt to serve the injunction order that night on the 15 protesters, [page137] but the OPP would accompany the sheriff to the blockade to serve the order first thing Sunday morning. According to a January 6, 2013 e-mail from OPP Inspector Pat Finnegan, detachment commander, Napanee OPP Detachment, to plaintiffs' counsel:
The court order was not served. The protest ended shortly after 11:00 p.m. prior to our ability to coordinate safe service of the order by the local sheriff.
[20] Saturday night I made a time-sensitive order because the evidence showed that significant irreparable harm resulted from each hour the blockade remained in place, yet the OPP would not assist the local sheriff to ensure the order was served by the time stipulated for the removal of the blockade. Such an approach by the OPP was most disappointing because it undercut the practical effect of the injunction order. That kind of passivity by the police leads me to doubt that a future exists in this province for the use of court injunctions in cases of public demonstrations.
[21] Which takes me to the second point. I question why a landowner must resort to seeking a court injunction to stop the sort of unlawful conduct engaged in by the protesters in this case. It strikes me that the police enjoy adequate powers of arrest to deal with the unlawful conduct without the further need of a court injunction.
[22] The evidence filed by CN raised questions as to whether the protesters' trespass on the main line possessed a criminal aspect. Section 26.1 of the Railway Safety Act (the "RSA")[^10] provides that "no person shall, without lawful excuse, enter on land on which a line work is situated". That Act defines a "line work" to include a line of railway and a system of signals that facilitates railway operations, but does not include a "crossing work", which is a road crossing or a utility crossing. Section 41(1) of the RSA makes it an offence to contravene a provision of the Act:
41(1) Every person who contravenes a provision of this Act is guilty of an offence and liable
(a) on conviction on indictment,
. . . . . [page138]
(ii) in the case of an individual, to a fine not exceeding ten thousand dollars or to imprisonment for a term not exceeding one year, or to both; or
(b) on summary conviction,
(ii) in the case of an individual, to a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding six months, or to both.
[23] The evidence also raised questions as to whether the protesters' obstruction of the main line possessed a criminal aspect. Section 430(1) of the Criminal Code, R.S.C. 1985, c. C-46 provides:
430(1) Every one commits mischief who willfully
(c) obstructs, interrupts or interferes with the lawful use, enjoyment or operation of property; or
(d) obstructs, interrupts or interferes with any person in the lawful use, enjoyment or operation of property.
Mischief in respect of property of a value of greater than $5,000 is an offence punishable by indictment or summary conviction.
[24] As stated by the Court of Appeal in R. v. Mammolita on the issue of liability for the offence of mischief:
A person may be liable as a principal if he actually does or contributes to the doing of the actus reus with the requisite mens rea . . . Accordingly, a person may be guilty as a principal of committing mischief under s. 430(c) if he forms part of a group which constitutes a human barricade or other obstruction. The fact that he stands shoulder to shoulder with other persons even though he neither says nor does anything further may be an act which constitutes an obstruction. The presence of a person in such circumstances is a very positive act. However, criminal liability only results if the act is done wilfully. In determining whether there is the requisite mens rea, one has to consider the extended definition given to "wilfully" by s. 429 of the Code[.]
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 by-passed.[^11] [page139]
[25] Section 495(1) of the Criminal Code authorizes a peace officer to arrest without warrant a person who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, or a person whom he finds committing a criminal offence.[^12] Further, s. 9(1) of the Trespass to Property Act[^13] authorizes a police officer to arrest without warrant any person he or she believes, on reasonable and probable grounds, to be on premises in contravention of s. 2 of that Act -- i.e., a person who refuses to leave premises immediately after directed to do so by the occupier of the premises. In light of those powers of arrest enjoyed by police officers, why does the operator of a critical railway have to run off to court to secure an injunction when a small group of protesters park themselves on the rail line bringing operations to a grinding halt? I do not get it. The remedy to remove the unlawful conduct is apparent and within the authority of the police.
[26] I acknowledge that in some respects the concept of the rule of law possesses its own subtleties, textured-ness and nuances, but in some fundamental respects it is quite simple -- no person in Canada stands above or outside of the law. Although that principle of the rule of law is simple, at the same time it is fragile. Without Canadians sharing a public expectation of obeying the law, the rule of law will shatter. And a key support for maintaining that expectation of abiding by the law is that those who are empowered to enforce the law will do so, and do so in an even-handed fashion. As a member of one part of our system for the administration of justice, I remain puzzled why another part -- our police agencies and their civilian overseers -- does not make use of the tools given to it by our laws to "ensure the safety and security of all persons and property in Ontario", which is the first of the principles directing the delivery of police services under the Police Services Act.[^14] I do not understand why the main line between Toronto and Montreal had to remain shut for several hours while a rail operator rushed off to court while the police simply stood by, inactive, and I do not understand why a judge of this court cannot predict with certainty whether a police agency will assist in enforcing his or her court order. A simpler solution under the law exists. [page140]
V. Summary
[27] For these reasons, I granted the injunction order sought by CN. That order was made on an ex parte basis and therefore could only last for ten days. It will expire on January 15, 2013. Although CN brought its order on an emergency basis in the Toronto Region of our court, if CN intends to move to continue the injunction order or take any other proceedings relating to it, CN must do so in the court's East Region in which the blockade took place. CN should contact the Office of the Regional Senior Justice, East Region, in Ottawa, to make arrangements for any further proceedings.
Application granted.
APPENDIX "A"
- THIS COURT ORDERS that the Defendants and each of them, and any and all persons having knowledge of this Order, be and hereby are restrained and enjoined from directly or indirectly, by any means whatsoever:
(a) trespassing on the Plaintiff's railway right-of-way at Milepost 209.03 at the Wymans Road crossing in the Kingston Subdivision of the Plaintiff's main railway line between Toronto and Montreal (the "Main Line"), or anywhere between Milepost 200 to 220 in the Kingston Subdivision of the Plaintiff's Main Line, or anywhere else on the Main Line;
(b) 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 Main Line;
(c) 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 Main Line or the maintenance, reconstruction or alteration of the Main Line;
(d) threatening or intimidating the Plaintiff's employees, servants, agents or other persons having business with the Plaintiff;
(e) physically interfering with or counselling others to physically interfere with the performance by the Plaintiff of its contractual relations with its employees, servants, agents or other persons having business with the Plaintiff;
(f) physically obstructing or otherwise impeding, or counselling others to physically obstruct or impede, the movement or operation of the Plaintiff's trains on the Main Line or anything connected with its railway operations; and
(g) creating a nuisance by physically obstructing the Plaintiff from carrying on its railway operations. [page141]
THIS COURT ORDERS that the Defendants and each of them, and any and all persons having knowledge of this Order, no later than 12:01 a.m. on Sunday, January 6, 2013, 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 Main Line.
THIS COURT ORDERS that any police service or peace officer be and hereby is authorized to arrest, or arrest and remove, any person who has knowledge of this Order and who the police service or peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this Order.
THIS COURT ORDERS that any police service or peace officer who arrests or arrests and removes any person pursuant to this Order be authorized to:
(a) release that person from arrest upon that person agreeing in writing to abide by this Order and to appear before this Court at such time and place as may be fixed for the purpose of being proceeded against for contempt of Court or fixing a date for such proceeding;
(b) where such person has refused to give a written undertaking to abide by this Order or to appear before this Court, or where in the circumstances the peace officer considers it appropriate, to bring forthwith such person before this Court in Toronto, Ontario, or such other place as the Court may direct, for the purpose of being proceeded against for contempt of Court or for fixing a date for such proceeding; or
(c) detain such person in custody until such time as it is possible to bring that person before this Court.
THIS COURT ORDERS that the terms of this Order shall remain in force until Tuesday, January 15, 2013.
THIS COURT ORDERS that the Defendants and anyone with notice of this Order may apply to the Court at any time to vary or discharge this Order or so much of it as affects such person, but anyone wishing to do so shall provide the Plaintiff's solicitors with at least twenty-four (24) hours notice thereof, and no such motion shall in any way excuse that person from compliance with the terms of this Order.
Notes
[^1]: 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17.
[^2]: (2011), 108 O.R. (3d) 571, [2011] O.J. No. 5158, 2011 ONSC 6862 (S.C.J.).
[^3]: (2006), 2006 CanLII 41649 (ON CA), 82 O.R. (3d) 721, [2006] O.J. No. 4790 (C.A.).
[^4]: (2008), 2008 ONCA 534, 91 O.R. (3d) 1, [2008] O.J. No. 2651 (C.A.).
[^5]: Frontenac Ventures, para. 43 (emphasis added). Section 35(1) of the Constitution Act, 1982 provides: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."
[^6]: Canadian National Railway Co. v. Plain (2012), 114 O.R. (3d) 27, [2012] O.J. No. 6184, 2012 ONSC 7356 (S.C.J.).
[^7]: Ibid., paras. 38, 40 and 41.
[^8]: R.S.O. 1990, c. C.43.
[^9]: (1998), 1998 CanLII 1441 (ON CA), 38 O.R. (3d) 448, [1998] O.J. No. 1824 (C.A.).
[^10]: R.S.C. 1985, c. 32 (4th Supp.).
[^11]: 1983 CanLII 3563 (ON CA), [1983] O.J. No. 151, 9 C.C.C. (3d) 85 (C.A.), paras. 12 and 13.
[^12]: For the definition of an indictable offence, see s. 34(1) of the Interpretation Act, R.S.C. 1985, c. I-21.
[^13]: R.S.O. 1990, c. T.21.
[^14]: R.S.O. 1990, c. P.15.