Canadian National Railway Company v. Plain, 2013 ONSC 4806

COURT FILE NO.: CV-12-6939

DATE: 230713

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: June 24, 2013 at Sarnia

DECISION ON CONTEMPT MOTION

THOMAS J.

1. BACKGROUND

1This decision on the issue of potential contempt related to the action of Ron Plain (Plain) follows my decision released June 10, 2013 which dismissed Plain’s application for extensive disclosure from the Plaintiff, Canadian National Railway Company (CN).

2The history of the proceeding was recounted there and will not be duplicated. There are additional facts, however, that relate to the contempt and an appropriate sanction. As previously mentioned, this motion for contempt was before Desotti J. on January 2, 2013 at which time he encouraged Plain to assist in the dismantling of the railway blockade and otherwise ordered him to stay away from the CN Spur Line except for normal travel.

3On January 4, 2013 the matter was back before Desotti J. and counsel for CN as well as Plain personally attended. While the protest had ended and the blockade dismantled, it was clear the CN was not abandoning its contempt application and that it sought costs against Plain and a permanent order prohibiting his attendance near the Spur Line. At that time counsel for CN offered to resolve the application for costs of $5,000. Plain refused to agree and indicated his intention to continue to contest any finding of contempt.

4The motion was adjourned to February 1, 2013 and then to May 24, 2013 when the disclosure motion was argued. At that time Plain had the benefit of counsel, Mr. Rosenthal and Mr. Leithold. On June 24, 2013 this contempt motion and the issue of the appropriate sanction was argued before me. The parties agreed that I could determine all remaining issues on the affidavit material filed and their oral submissions, without cross-examinations.

5Mr. Rosenthal filed an affidavit of Plain which acknowledged his presence at the protest site on December 22, 2012, the day after it began and the day after the granting of the exparte injunction by Brown J. It is clear from the affidavit that at least by December 24, 2012 Plain had knowledge of the court order. He continued to attend the blockade but his acknowledged role was that of protest spokesperson. His affidavit confirms that after his attendance before Desotti J. on January 2, 2013 he convinced the protesters to abandon the site and the blockade has not resumed since. It seems that Plain was surprised that CN would continue its contempt application after the protest ended and in his affidavit he undertakes not to obstruct or impede or counsel others to obstruct or impede the CN Spur Line.

6The material filed describes the financial impact of the blockade upon CN, its corporate customers in Sarnia’s “chemical valley”, and upon the public through lost profits and temporary lay-offs as production necessarily declined.

7CN’s counsel has appeared before this Court in Sarnia on four occasions with witnesses present on three of those. The legal costs to CN of this contempt motion are in excess of $100,000. Mr. Bredt has now filed bills of costs for these Sarnia proceedings totalling $74,699.48 for substantial indemnity costs.

8I am advised that CN, upon a finding of contempt, seeks a costs order against Plain of $50,000, payable in six months, together with the continuing order that he not go within 100 feet of the Spur Line except for normal travel. CN undertakes to forward all costs collected to its aboriginal scholarship program and invites me to make that part of my order.

2. THE FINDING OF CONTEMPT

9Mr. Rosenthal upon the filing of the Plain affidavit has taken the position that while not consenting to a finding of contempt neither would he argue against it. Plain’s affidavit itself provides the necessary evidence of knowledge of the court order and continued participation in the face of it, both by personal attendance on the Spur Line, and by acting as the spokesperson for the protest. The other material filed by CN provides evidence of Plain not only describing the blockade in his conversations with the press and his internet postings but also encouraging others, post-injunction, to join in the blockade itself. These public statements clearly acknowledge the economic effects of the protest on CN and its customers.

10There is, in my view, ample evidence to prove beyond a reasonable doubt that Plain openly defied the court order of Brown J. and did so with knowledge that it bound him and I make that finding.

3. THE APPROPRIATE SANCTION

(a) POSITION OF THE PARTIES

11Mr. Bredt, on behalf of CN, seeks costs as described above, together with the continuing order keeping Plain away from the Spur Line.

12He argues that the continuing order of non-attendance is necessary to ensure that Plain will not further participate in a similar protest, assist in having police enforce the order if necessary, and circumvent the need for CN to add Plain to the action to control his future activity.

13Mr. Bredt urges this Court to view the costs sanction as compensatory and not punitive. He suggests that I need to assess the aggravating and mitigating factors present and that I should do so with the benefit of the factors set out in paragraph 69 in the decision of Ferrier J. in Boucher v. Kennedy [1998] O.J. No. 1612 (Gen. Div.) (Boucher).

69. Without limiting the factors that the court may take into account in deciding the amount of a fine to impose for contempt, I am of the view that the court should consider in addition to the nature of the contemptuous conduct, the following:

(1) whether the contemnor has admitted the breach;

(2) whether the contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the court;

(3) whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;

(4) whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than as a result of a mistake or misunderstanding;

(5) the extent to which the conduct of the contemnor displayed defiance;

(6) whether the order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the order;

(7) the need for specific and general deterrence;

(8) the ability of the contemnor to pay.

14Finally, he reminds me that this was not a protest regarding an aboriginal land claim but rather a political protest in support of Chief Spence and the “Idle No More” movement and therefore I should be careful in applying the reasoning set out in other cases which advocate a nuanced approach recognizing the complex relationship between the Crown and aboriginal persons (Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534 at para. 68).

15Mr. Rosenthal, on behalf of the contemnor, urges me to recognize the role of his client as the spokesperson, not the leader of this protest. He reminds me that the efforts of Plain on January 2, 2013 caused the dismantling of the blockade and should significantly mitigate any costs sanction. He suggests that CN’s position on costs can only be seen as punitive and as such the principles discussed in Frontenac are clearly applicable. It is therefore important to craft a sanction that recognizes the historical disadvantage of aboriginal peoples and seeks to engage and not further alienate. He points to paragraph 54 of Frontenac.

[54] All of these factors ought to have been considered by the motion judge when fashioning appropriate sanctions for their acts of contempt. Another way of saying this is that the sentencing principles articulated by the Supreme Court of Canada in R. v. Gladue 1999 CanLII 679 (SCC), (1999), 133 C.C.C. (3d) 385, are applicable when fashioning a sentence for civil or criminal contempt on the part of aboriginal contemnors.

16As in Frontenac, I am urged to find appropriate a monetary sanction in a nominal amount of no more than $1,000. In coming to that amount Mr. Rosenthal asks me to take into account the personal means of his client Plain.

17Mr. Plain is 51. He was earning $42,000 annually as an environmental policy analyst with the Southern First Nations Secretariat but is presently off work due to a neck injury. He has been without income since May 21, 2013 and is awaiting a decision on his disability benefits. He is the main source of support for his wife and two children. They own a home, but it is heavily mortgaged. Clearly, he has limited ability to pay any costs order. Finally he suggests that there is no need to restrict his client’s access to portions of the First Nations community adjoining the CN line considering Plain’s assistance in determining the protest and the lack of obstruction since.

(b) ANALYSIS

18“The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect” (United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901 para. 50).

19CN requests this Court to enforce the injunctive relief granted by Brown J. by motioning for a finding of civil contempt pursuant to Rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194. Rule 60.11(5) provides the following available orders on a finding of contempt:

Content of Order

(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,

(a) be imprisoned for such period and on such terms as are just;

(b) be imprisoned if the person fails to comply with a term of the order;

(c) pay a fine;

(d) do or refrain from doing an act;

(e) pay such costs as are just; and

(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.

20Discretion lies in the motions judge to craft a just order in the circumstances.

[7] “The choice of appropriate penalty for contempt must recognize the important distinction between civil and criminal contempt: the purpose of a sentence for criminal contempt is punishment, whereas the purpose of a sentence for civil contempt is coercive or persuasive, designed to enforce the rights of a private party: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008), 2008 ONCA 534, 91 O.R. (3d) 1 (C.A.), para. 37.”

(Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic, 2009 CanLII 9423 (ON SC), [2009] O.J. No. 888 (S.C.J.) para.7).

21Fundamental to this decision is the recognition that CN has abandoned any claim for a sanction beyond an order keeping Plain from the Spur Line and compensation in costs. Perhaps this position is borne from the recognition that Plain substantially purged his contempt by convincing the protesters to withdraw from the rail tracks on January 2, 2013; perhaps as well it is reflective of the content of paragraph 9 of Plain’s affidavit set out below.

9. I undertake not to obstruct or impede or counsel others to obstruct or impede CN’s operation of its St. Clair River Industrial Spur Line.

22Certainly I have no evidence that since January 2, 2013 any persons have inhibited travel on these CN tracks. In the face of CN’s position, and the circumstances considered above, I have no reason to consider any graver sanction than that presently sought.

23I recognize that Rule 60.11(5), as well as the Court’s inherent jurisdiction to enforce its own orders, would allow me to keep Plain 100 feet away from CN’s St. Clair Industrial Spur Line. His actions prior to January 2, 2013 might justify that sanction but since that time his conduct has only mitigated the effects of his earlier breach. The injunction granted by Brown J. remains in effect. CN continues to prosecute its action.

24If, in the face of what Plain has done since January 2, 2013 CN chooses to apply to add him to the action to insure his future good conduct it is free to do so. I am not content that the continuing restraining order is necessary or “just” within the meaning of Rule 60.11(5) and I decline to continue the order. The order granted by Desotti J. January 2, 2013 and continued from time to time will expire upon the release of these reasons.

25That leaves me to consider the matter of costs. Rule 60.11(5) allows me to direct the payment of “such costs as are just”. I agree with Mr. Bredt that normally the exercise of assessing costs is compensatory and not punitive.

26Costs here are being sought in the context of civil contempt, and as part of the sanctions available in Rule 60.11, the rule that must be applied in this motion. Costs are always available in a proceeding. I conclude therefore, that there must be some reason why “just costs” are specifically enumerated in Rule 60.11(5)(e).

27In my view costs here are a variation on the normal practice. While arguably compensatory, they carry as well a further purpose. Costs after a finding of contempt are meant to be coercive (McClure v. Backstein, [1987] O.J. No. 498 (H.C.J.) page 4). I find confirmation of that position by the recognition that costs after a finding of civil contempt are, as a rule, assessed on a substantial indemnity basis. (West Lincoln (Township) v. Chan, [2001] O.J. No. 2133, para. 42; York (Regional Municipality) v. Schmidt, 2008 CanLII 63236 (ON SC), [2008] O.J. No. 4915 (S.C.J.) para.23).

28In addition I am aware that substantial indemnity costs have been ordered in “flagrant and intentional breaches of court orders”. (SNC-Lavalin Profac Inc. v. Sankar, 2009 ONCA 97, [2009] O.J. No. 365 (C.A.) para.19).

29I conclude that, along with an assessment of the nature of the contemptuous conduct I must consider the factors set out in Rule 57.01 resulting in a hybrid analysis. I do not believe the determination of Rule 60.11 costs was meant to exclude the usual costs considerations. The Ontario Court of Appeal has provided guidance regarding the fixing of quantum of costs, in the 2004 decision of Boucher v. Public Accountants Council for the Province of Ontario (2004), 2004 CanLII 14579 (ON CA), 71 O.R. (3d) 291 (TAB 2), where Armstrong J.A. stated:

Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The express language of Rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates. The introduction of a costs grid was not meant to produce that result, but rather to signal that this is one factor in the assessment process together with the other factors in Rule 57.01. Overall, as this Court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

The Rules were subsequently amended to reflect this reasoning.

30In fixing a fair and reasonable amount in this case I must consider the terms of Rule 57.01(e), (f), and (g).

(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;

(f) whether any step in the proceeding was,

(i) improper, vexatious or unnecessary, or

(ii) taken through negligence, mistake or excessive caution;

(g) a party’s denial of or refusal to admit anything that should have been admitted;

31It is important to me that at a step in this proceeding the contemnor not only attempted to purge his contempt but that of others not specifically being prosecuted. It is true he failed to accept what I view as a reasonable costs offer on January 4, 2012 but then retained counsel.

32Unfortunately, the next proceeding was an application for extensive disclosure in a doomed attempt at a collateral attack on the injunction. As a result of my negative ruling on that motion, Plain did not dispute a finding of contempt and allowed for a limited argument on the material filed related to the quantum of appropriate costs and the personal restraining order. Beyond the disclosure motion I find nothing of Plain’s position before me to be vexatious or unnecessary.

33Also in fixing fair, reasonable and just costs I must consider the contemnor’s aboriginal status and the context of this blockade. I am aware as was Brown J. that this obstruction of the CN St. Clair Spur Line was an exercise of “expressive freedoms” (D.M. Brown J., Reasons for Injunction Decision, December 21, 2012, para. 19) and not a protest in the midst of a land claims dispute as was the case in Frontenac. However I conclude that I must while attempting to promote lawful conduct through costs, recognize the mitigating factors some of which I mentioned previously.

34This was a brief, yet flagrant, breach of a court order in a peaceful protest which caused no property damage. My costs order should be capable of being seen as fair, reasonable and just to an aboriginal offender of limited means who chose to act as the visible spokesperson of a protest that openly defied a court order. I believe in doing so I am also considering the factors discussed by Ferrier J. in Boucher, although I recognize at the time he was determining the quantum of a fine.

4. CONCLUSION

35In attempting to balance all the factors considered above I conclude that costs are payable to CN by Ron Plain in the amount of $16,584.87. I come to that amount by adding the reasonable offer of costs of $5,000 made by Mr. Bredt to Plain on January 4, 2013 to the substantial indemnity costs of CN on the disclosure motion (being $11,584.87).

36I decline to limit CN’s ability to enforce this costs order and so the costs are payable forthwith. Further I recognize CN’s undertaking to pay any collected costs into its aboriginal scholarship program. While a laudable position I do not intend to endorse it by making it part of my order. It is up to CN what it chooses to do with its costs particularly in light of its argument that they should be seen as compensatory.

37Finally, as mentioned previously, any restrictions on Plain’s mobility as a result of the continuation of the terms of the order of Desotti J. are terminated upon the release of these reasons.

Original Signed “B. Thomas”

Bruce G. Thomas

Justice