COURT FILE NO.: CV-12-6939

DATE: 20130610

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Canadian National Railway Company

Plaintiff

– and –

Chief Chris Plain, The Chippewa of Sarnia First Nation Band, John Doe and Persons Unknown

Christopher D. Bredt and Heather K. Pressione, for the Plaintiff

Peter Rosenthal, Michael A. Leithold, Christopher Reid, for Ron Plain (the alleged contemnor)

Defendants

HEARD: May 24, 2013 at Sarnia

DECISION ON DISCLOSURE MOTION

THOMAS J.

BACKGROUND

[1] In December, 2012, in apparent support of the “Idle No More” movement, and to protest the passage of B-45, individuals blocked the Canadian National Railway Company (CN) Industrial Spur Line at its crossing of Degurse Drive on the Chippewa of Sarnia First Nation Reserve. The Spur Line services a number of corporations in Sarnia’s “chemical valley”.

[2] On December 21, 2012, Brown J., sitting in this Court in Toronto, granted CN an interim injunction without notice, which among other things restrained any further blockade, and ordered the removal of all obstructions.

[3] On December 27, 2012, Brown J. renewed the injunction. At that time no one appeared for the defendants.

[4] On January 2, 2013, CN brought a motion in Sarnia before Desotti J. seeking an order of civil contempt against Ron Plain (Plain) for his alleged continued blockade and/or trespass on the CN Spur Line in contravention of the injunction.

[5] The Order of Desotti J. of January 2, 2013 states the following.

(a) Ron Plain shall not go within 100 feet of CN’s St. Clair Industrial Spur Line, except for the purposes of normal travel, and for the purposes of assisting those present at the Blockade to end the Blockade, on or before 6:00 p.m. on January 2, 2013;

(b) Ron Plain shall comply with the terms contained in the Orders of Justice Brown dated December 21 and December 27, 2012 subject to paragraph (a) above;

(c) On or after 6:00 p.m. on January 2, 2013, any police or peace officer be and hereby is authorized to arrest, or arrest and remove Plain where the police service or peace offer has reasonable and probable grounds to believe that he has contravened the terms and conditions herein, and for greater certainty, such a police service or peace officer retains his or her discretion to decide to arrest or remove Plain; and

(d) On or after 6:00 p.m. on January 2, 2013, any police service or peace officer who arrests or removes Plain pursuant to this Order be authorized to detain Ron Plain in custody within such time as it is possible to bring him before the Court.

[6] On January 4, 2013, the contempt application was adjourned to February 1, 2013 and then to May 24, 2013 with the terms of the Desotti J. order remaining in place. The contempt matter came before me, as motion’s judge, on May 24, 2013, along with a motion brought by counsel for Plain, Mr. Rosenthal, seeking extensive disclosure and the relief discussed below.

[7] This decision deals only with the relief requested in the Plain motion.

RELIEF REQUESTED BY THE PLAIN MOTION

[8] In order to fully appreciate the scope of the disclosure demanded it is necessary for me to reproduce the relief requested below. By correspondence and then by motion Mr. Rosenthal requested the following:

(1) All documents that form the basis for CN’s right to use the lands for the Spur Line.

(2) Without limiting the generality of the foregoing, all documents related to CN’s continued use of those lands after CN ceased being a Crown corporation.

(3) All notes, emails, or other documents of CN Chief of Police Stephen Covey, CN Police Inspector Raymond Currier, CN Police Constable Arnold and Mr. Brett Balingall relating to the alleged blockade of the Spur Line in December 2012 and January 2013 (“the alleged blockade”).

(4) All notes, emails or other documents relating to the alleged blockade made by any Sarnia Police Service officers or representatives of the Sarnia Police Service that are in the possession or control of CN or confirmation CN has no such documents in their possession.

(5) All notes, emails or other documents relating to the alleged blockade made by any Sarnia city officials that are in the possession or control of CN or confirmation that CN has no such documents in their possession.

(6) All notes, correspondence, email or other communications between Mr. Curtis and Inspector Raymond Currier concerning the issues referred to in paragraph 10 of the affidavit of Greg Curtis of December 21, 2012 or concerning any other aspect of the alleged blockade.

(7) All notes, correspondence, email or other communications between Mr. Greg Curtis and Mr. Brett Balingall concerning the issues referred to in paragraph 11 of the affidavit of Greg Curtis of December 21, 2012 or concerning any other aspect of the alleged blockade.

(8) All notes, correspondence, email or other communications between Mr. Greg Curtis and Inspector Raymond Currier concerning the issues referred to in paragraph 5 of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(9) All notes and recordings of all meetings at the Sarnia Police Service as referred to in paragraph 5(d) of the affidavit of Greg Curtis of December 24, 2012.

(10) All notes, correspondence, email or other communications between Mr. Greg Curtis and CN Police Constable Arnold concerning the issues referred to in paragraph 5(e) of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(11) All notes, correspondence, email or other communications between Mr. Greg Curtis and Chief Nelson concerning the issues referred to in paragraph 5 of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(12) All notes, correspondence, email or other communications between Mr. Greg Curtis and the Sarnia Police Service Inspector concerning the issues referred to in paragraph 5(h) of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(13) All information about the advice Mr. Curtis allegedly received from the Sarnia Police Service as partially described in paragraph 5(j) of the affidavit of Greg Curtis of December 24, 2012.

(14) All notes, correspondence, email or other communications between Mr. Greg Curtis and CN Chief of Police Stephen Covey and Chief Nelson concerning the information deposed in paragraph 6 of the affidavit of Greg Curtis of December 24, 2012 or any other aspect of the alleged blockade.

(15) All notes, correspondence, email or other communications between Mr. Greg Curtis and CN Chief of Police Stephen Covey and Chief Nelson concerning the information deposed in paragraph 7 of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(16) All notes, correspondence, email or other communications between Mr. Greg Curtis and Mr. Doug Devlin concerning the information deposed in paragraph 8 of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(17) All notes, correspondence, email or other communications between Mr. Greg Curtis and Mr. Doug Devlin and Inspector Ray Currier concerning the information deposed in paragraph 8(e) of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(18) All notes, correspondence, email or other communications between Mr. Greg Curtis and Fiona Murray, CN Vice president of Corporation Marketing concerning the information deposed in paragraph 11 of the affidavit of Greg Curtis of December 24, 2012 or concerning any other aspect of the alleged blockade.

(19) All notes, correspondence, email or other communications of CN Inspector Ray Currier referred to in the two paragraphs numbered with an 8 of the affidavit of Doug Devlin of December 27, 2012.

(20) All notes, correspondence, email or other communications between Doug Devlin and CN Inspector Ray Currier related to the allegations contained in paragraph 26 of the affidavit of Doug Devlin of April 18, 2013 or confirmation that there are no such documents.

(21) Information setting out what CN operations on the Spur Line were anticipated during the period from December 22, 2012 to January 1, 2013 had there not been any blockade; given the fact that most of this period would be Christmas and New Year’s holidays, it would appear likely that there would have been much less anticipated use of the Spur Line than there would be during non-holiday periods.

(22) All correspondence, emails or other communications made during the time period December 1, 2012 and January 31, 2013 between Justice D.M. Brown and anyone acting on behalf of CN or their counsel.

(23) In particular, without limiting the generality of the foregoing, all emails or other communications on any of December 20, 21 or 22 between Justice D.M. Brown and anyone acting on behalf of CN or their counsel.

(24) And further, without limiting the generality of the foregoing, all correspondence between Justice D.M. Brown and anyone acting on behalf of CN or their counsel concerning the application for an injunction with respect to the blockade of CN tracks at Tyendinaga in January 2013.

(25) Over what period of time did now-Justice D.M. Brown act as counsel for CN?

(26) Over what period of time did now-Justice D.M. Brown serve as a witness for CN in proceedings in the United States, and what was the nature of his testimony?

(27) How was it that Justice D.M. Brown came to be the Justice hearing the application on the evening of December 21, 2012?

(28) Approximately at what time did the appearance on December 21, 2012 before Justice D.M. Brown begin? Approximately what time did it end?

(29) By what means was the application on December 21, 2012 heard (i.e., by phone, in person, etc.)? If by phone, did counsel for CN phone Justice D.M. Brown at his home phone?

(30) In the course of the appearance before Justice D.M. Brown on December 21, 2012, did anyone note or mention the fact that Justice D.M. Brown had previously been retained by CN?

(31) How was the order with respect to the application of December 21, 2012 taken out?

(32) CN made an application for an injunction with respect to Tyendinaga First Nation that was heard on January 5, 2013. How was it that Justice D. M. Brown came to be the Justice hearing that application.

(33) In the course of the appearance before Justice D.M. Brown with respect to Tyendinaga, was there any mention or discussion of the fact that Justice D.M. Brown had previously been retained by CN? Was there any communication about that fact between Justice D.M. Brown and anyone representing CN at any time between December 10, 2012 and January 10, 2013?

[9] In addition while not specifically requested, or directly supported by the materials filed, Mr. Rosenthal asks that I consider … “the disclosure is relevant to many aspects of Mr. Plain’s defence, including Mr. Plain’s anticipated novel argument that the principles of fundamental justice preclude convicting him of contempt if the injunction order was invalid” (Plain disclosure motion p.6).

POSITIONS OF THE PARTIES

[10] Mr. Rosenthal argues that in law there is now little difference between civil and criminal contempt and suggests that charter principles demand full disclosure for both in the terms of the decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326 (Stinchcombe). (Schitthelm v. Kelemen, 2013 ABQB 42, para. 20-22) (Schitthelm).

[11] His argument goes further and suggests that I should overturn the law prohibiting collateral attacks on court orders and create a narrow exception for aboriginal persons who cannot attack an order (in this case an injunction) directly on appeal. He suggests an aboriginal person, like Plain, is unable to assert treaty land rights as an individual (R. v. Sparrow, [1990] 1 S.C.R. 1075 p.1112; R. v. Sundown, [1999] 1 S.C.R. 393 at para. 36).

[12] Counsel maintains I should allow for such an attack as a recognition of Plain’s section 7 Charter rights. He argues on that basis I would be able to set aside the injunction in this contempt application, without an appeal. The extensive disclosure requested is therefore necessary for this proposed novel attack.

[13] Even if I am not inclined to engage in the section 7 application, Mr. Rosenthal directs my attention to Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, para.178 (Taylor) and R. J. Sharpe, Injunctions and Specific Performance (1983) at para. 259 where it is observed that the validity of the initial order is a consideration in the determination of an appropriate sanction for contempt.

[14] Mr. Bredt, counsel for CN, argues that in this civil contempt application his client need only prove beyond a reasonable doubt that Plain:

(a) was personally served or had knowledge of the injunction; and

(b) he deliberately or wilfully or knowingly did some act that was designed to result in a breach of the injunction.

Re Sheppard and Sheppard, [1976] O.J. No. 2083 (C.A.), at para.15; Geremiah v. Harb, [2006] O.J. No. 4547 (S.C.J.), at paras. 16-17, 19.

[15] It is CN’s position that it has provided full disclosure of the evidence it intends to rely upon in the affidavits filed with the contempt application.

[16] It is suggested that there remains a distinction between civil and criminal contempt applications, especially where, as here, the applicant is seeking only the monetary sanction of costs. The court must engage a flexible approach to assessing the demands of appropriate disclosure. (Vale Inco Ltd. v. USW, Local 6500, 2010 ONSC 3039, [2010] O.J. No. 2164 paras. 7-9) (Vale).

[17] CN reminds me that while Plain has not attempted to challenge the order on appeal, neither has he filed any pleadings or evidence which I could use to determine if the disclosure requests are relevant to Plain’s defence.

[18] Mr. Bredt states that Plain’s demands are merely a “fishing expedition” designed to ground a prohibited collateral attack on a valid court order. (Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, 2010 S.C.C. 62 at paras. 60-61; R. v. Domm, [1996] O.J. No. 4300 (C.A.) (Domm)).

[19] After all, he argues, the potential breach of the constitutional rights of Plain is a pure question of law and requires no disclosure. He further states that while cases like Taylor and Canada (Human Rights Commission) v. Canadian Liberty Net, [1996] 1 F.C. 787 (C.A.) suggest that the fact that an order has been set aside may mitigate the sanction for contempt, here, the order remains in force and no proceeding in which it can be appropriately called into question has been commenced.

[20] Finally, Mr. Bredt without conceding the irrelevance of the exercise, has advised Mr. Rosenthal that Brett Balingall mentioned in disclosure item 3 and 7 and Doug Devlin mentioned in items 16, 17 and 20 have no notes, CN has no documents related to items 4 and 5 and no notes or correspondence exist related to item 20. CN will provide to Mr. Rosenthal the notes of CN Inspector Currier who it is alleged observed Plain on the Spur Line in contravention of the order.

[21] For the reasons set out below I agree with the position taken by CN.

ANALYSIS

A. Collateral Attack

[22] It is imperative to the rule of law that a valid court order be capable of enforcement (United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901 at para.50). If that enforcement takes the form of a contempt application, for the purposes of that application “the order must be considered to be valid until set aside by legal process. Thus, the ultimate invalidity of the order is no defence to the contempt citation”. (Taylor p.974-975).

The duty of a person bound by an order of a court is to obey that order while it remains in force regardless of how flawed he may consider it or how flawed it may, in fact, be. Public order demands that it be negated by due process of the law, not by disobedience.

Canada Metal Co. v. Canadian Broadcasting Corp. (No.2) (1974), 4 O.R. (2d) 585 (H.C.), 613, (at p. 601).

[23] In Domm, Doherty J. was considering an attack on the lawfulness of a publication ban and an allegation that it breached section 2(b) of the Charter, being the guarantee of freedom of expression. In that case, not unlike here, Domm was being prosecuted for breach of the order. At paragraph 32, Doherty J. considered the appropriateness of a charter-fuelled collateral attack which he described as the tactic of “breach first, challenge late”.

The collateral attack contemplated by the appellant would do substantial damage to the compliance component of the rule of law and the repute of the administration of justice. Justice Kovacs’ order was binding on everyone who had notice of it. It was not an order, like that considered in Litchfield, which affected only the interests of those engaged in a specific trial. When the appellant chose to defy the order, those who had opposed the making of the order were continuing to abide by it while challenging its validity on appeal. To suggest that the appellant could disobey the order and then challenge its validity in entirely separate proceedings from those taken specifically for that purpose would, in my view, do a great disservice to the orderly and functional administration of justice.

[24] As to Plain’s application alleging a breach of his section 7 Charter rights, I have no evidence that the principle of fundamental justice has been impacted. The burden of such proof rests with the applicant.

[25] The validity of the interim injunction of Brown J. could have been challenged in an application to set it aside or on appeal. I have no evidence that a challenge was ever undertaken. As to the argument that Plain lacks standing to do so, I have no evidence that that avenue has been closed to him. I do not know the position of the Band regarding the interim injunction or whether Plain ever attempted to encourage an appeal.

[26] He has the possibility of seeking standing in the appeal process as contemplated by the Supreme Court of Canada in Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 and, Behn v. Moulton Contracting Ltd., [2013] SCC 26. The appropriate vehicle for this type of application is in a direct attack on the order through the appeal process.

[27] There is simply no merit to the section 7 argument on the material before me and it must fail along with any attempt to attack the validity of Order of Brown J.

B. Contempt and Disclosure

[28] While the court in Schitthelm questioned whether procedural rights and charter protections changed depending on whether the contempt proceeding was criminal or civil, it endorsed a contextual approach and the reasoning of Gordon J. in Vale (Schitthelm paras. 22 and 37).

[29] In Vale, Justice Gordon, said the following at paragraphs 7 and 9.

7. I am not so certain that the Stinchcomb disclosure obligations will exist in every motion brought for civil contempt. In my view, the nature and extent of the disclosure obligations need to be decided on a case by case basis, having regard to such issues as:

(1) The relief being sought by the party bringing the motion for contempt. If the motion is brought essentially for the purpose of ending the unlawful conduct that is one thing: if the motion is brought with a request for significant penal sanction, that is another thing entirely;

(2) Whether the alleged contempt is ongoing, resulting in an urgent need to preserve order and protect the authority of the court;

(3) If the alleged contempt is not ongoing, whether the relationship between the parties is such that the impugned conduct might reasonably be expected to resume without timely intervention by the court;

(4) The nature of the conduct alleged; and

(5) The nature and extent of the materials of which disclosure is sought and the time expected to produce it.

9. This seems to me, a reasonable approach. In the context of proceedings for civil contempt I would expect that full disclosure would be expected in most cases. However, in each case it will be important for the court to consider the factors outlined above. It will be important for the court to consider whether the purpose for which disclosure is being sought is legitimate. It will be important for the court to consider whether the ends of justice are best met by making the requested order.

[30] I agree with the approach taken by Gordon J. in Vale. In considering the issues he identifies it is important to me that CN seeks only a costs sanction although I am aware that CN wishes Plain remain 100 feet from the Spur Line. The conduct alleged is simply the continued presence of Plain and the blockade of the Spur Line after the order was granted. Service of the order and proof of contravention does not seem to engage complex evidentiary issues or a wealth of information. The affidavit of Devlin, filed, seems to address both, subject to whatever defence may be disclosed.

[31] While I recognize the Spur Line is now operating as before the protest, and no exigent circumstances exist, when I view the nature and extent of the materials sought I am unable to find that the ends of justice would be met by such a disclosure order.

[32] In coming to that conclusion I confirm that in this civil proceeding Plain has filed nothing that would allow me to address the issue of relevant information for full answer and defence.

[33] As to the relevance of information touching on the validity of an underlying order for the purpose of determining a sanction, there is no need to embark upon that exercise when no appropriate proceeding challenging the order has ever been initiated. For the reasons I mentioned above, that cannot be done here.

[34] The detailed disclosure requested relates to CN’s right to use the land, the evidence related to the blockade including ongoing observations from any and all sources, information regarding the police response, and what might loosely be viewed as the appropriateness of Brown J. hearing the injunction application. Unless counsel for Plain is able and willing to point to necessary and relevant disclosure related to the very narrow allegation in this civil contempt application, no further disclosure is necessary.

CONCLUSION

[35] I am content that all disclosure necessary to defend this particular civil contempt proceeding is already in the hands of Mr. Rosenthal (that would include the notes of Inspector Currier). The disclosure application of Plain is therefore dismissed as is any related Charter application proposed at this stage.

[36] This matter is adjourned to June 24, 2013 at 9:00 a.m. when I would expect to commence the contempt application brought by CN. It would seem at that time Mr. Bredt intends to rely upon the affidavit material filed, subject to the direction of the court. I recognize that nothing has been filed in response.

[37] As part of my endorsement of May 24, 2013 with the consent of the parties the Order of Desotti J. of January 2 and 3, 2013 continues to bind Ron Plain until June 24, 2013 or until further order of this Court. Ron Plain should be present on June 24, 2013 at 9:00 a.m.

[38] Any costs related to this specific motion should be left to be considered at the end of the contempt proceeding.

Signed “Bruce Thomas”

Bruce G. Thomas

Justice

Released: June 10, 2013

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Canadian National Railway Company

Plaintiff

– and –

Chief Chris Plain, The Chippewa of Sarnia First Nation Band, John Doe and Persons Unknown

Defendants

DECISION ON DISCLOSURE MOTION

Bruce G. Thomas

Justice

Released: June 10, 2013