Canadian National Railway Company v. Persons Unknown, 2014 ONSC 1945
COURT FILE NO.: CV-14-0074-00
DATE: 2014/03/26
ONTARIO
SUPERIOR COURT OF JUSTICE
EAST REGION
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Plaintiff
– and –
JOHN DOE, JANE DOE and PERSONS UNKNOWN
Defendants
Christopher D. Bredt & Heather K. Pessione, of Borden Ladner Gervais LPP, for the Plaintiff
Unrepresented
HEARD: March 19, 2014 at Belleville
KERSHMAN, j.
REASONS FOR DECISION
[1] This matter deals with the blockade of the Toronto to Montreal railway Main Line. At approximately 2100 hours on March 18, 2014 a number of protestors blockaded the Montreal to Toronto Main Line of the Canadian National Railway Company bringing freight and passenger traffic to a halt. Canadian National Railway Company, otherwise known as CN, appears before the Court to seek an ex-parte interim injunction restraining the protest and clearing the tracks. For the reasons set out below, the Court grants the Interim Injunction Order as amended and signed.
FACTS
The Operations of the Toronto to Montreal Main Line
[2] According to the Affidavit of Bryne Bowness, sworn March 19, 2014, CN’s Regional General Superintendent for the East Region:
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 otherwise known as the Main Line. In the area between Belleville, Ontario east to Kingston, the Main Line is a two- 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.
CN carries every manner and type of rail freight on the Main Line between Toronto and Montreal. This rail corridor is 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.
CN trains are scheduled to travel eastbound and westbound between Toronto and Montreal daily on the Main Line. CN operates an average of 20 commodity, mixed freight and container freight trains daily over the Main Line between Toronto and Montreal, with ten westbound and ten eastbound. These trains are typically 110 to 190 cars in length and each may carry freight for 90 or more customers.
In addition, CN operates two trains daily, one loaded and one empty, to carry fuel for Ultramar. These are dedicated trains of approximately 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.
The value of the commodities CN handles utilizing the Toronto - Montreal corridor is over $80,000,000 per day.
CN has operating agreements with Via Rail Canada Inc. (VIA) for rail passenger trains to run both east and west on the main line. There are 24 VIA passenger trains that daily use this area of the Main Line with 14 trains travelling between Toronto and Montreal and ten trains travelling between Toronto and 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.
Events of the Blockade
[3] In his Affidavit, Mr. Bowness describes the events surrounding the blockade at paragraph 23 and onward:
At 2120 hours on March 18, 2014 I received a phone call from Natalie Savedra, Senior Chief Train Dispatcher and Greg Curtis, Superintendent of CN’s Greater Toronto Area Operations Centre. Ms. Savedra advised me that an unidentified person telephoned the CN Police Hotline at approximately 2100 hours on March 18, 2014 and advised that he and a number of others were blocking the Main Line at the Wyman’s Road crossing in the Kingston Subdivision of the Main Line at Milepost 209.03. Ms. Savedra was conferenced in to the call by CN Police. As a result, Ms. Savedra began to slow trains down and stop trains on the Main Line in the affected are. Within five minutes, traffic on the entire Main Line was suspended.
At approximately 2130 hours on March 18, 2014, I had a conference call with Ms. Savedra, CN Chief of Police Stephen Covey, Greg Curtis, Superintendent of CN’s Greater Toronto Area Operations Centre, and Tracy Miller, CN’s General Manager, Greater Toronto Area. Chief Covey advised that CN Police were responding to the blockade but he didn’t expect that any action could be taken until daylight at the earliest.
I am advised by Mr. Miller that he asked Jamie Crawford, Belleville Train Master, to attend at the Wyman’s Road Crossing.
I am advised by Mr. Crawford that he arrived at Wyman’s Road at approximately 2140 hours. At that time, the crossing was blocked by a number of people, about a dozen (although Mr. Crawford could not see exactly how many because it was dark). Mr. Crawford also saw some vehicles and a bonfire close to the tracks. I am advised by Mr. Crawford that he stayed on site for approximately 30 minutes and during that time, the Wyman’s Road crossing continued to be blocked by an unknown number of individuals.
At approximately 2200 hours on March 18, 2014, I was in touch with Mark Beaulieu, VIA’s Regional General Manager, East, and Chief of Transportation, to advise him that their operations on the Kingston sub of the Main Line would have to be suspended indefinitely.
At approximately 2300 hours on March 18, 2014, I was advised by Ms. Savedra that she had received a report from the OPP indicating that there were four vehicles blocking the CN rail line at the Wyman’s Road crossing along with two bonfires. Because it was dark, they were not able to ascertain how many protesters were on the tracks at that point.
At approximately 0700 hours on March 19, 2014, I received an email update from Chief Covey advising as follows: Latest Update. Approximately 30 people have been on the tracks overnight. There are vehicles present and two bonfires at the Wyman’s Road Crossing. CN Police dispatched five officers to the scene overnight.
I am advised by Mr. Miller that he arrived at the Wyman’s Road crossing this morning at approximately 0730 hours. Mr. Miller spoke to CN Police on scene and was advised that nothing had changed overnight. Mr. Miller observed two OPP and one CN Police vehicle blocking the Wyman’s Road access to the Wyman’s Road crossing. Mr. Miller observed through binoculars that there were eight to ten protesters on the Main Line at the north side of the crossing, along with a couple of bonfires and many logs, all blocking the Main Line. There was also a red car at the Wyman’s Road crossing very close to the tracks, which looked to Mr. Miller like it might be too close to get a train by.
Mr. Miller reattended at the Wyman’s Road crossing at approximately 1030 hours and nothing had changed from his 0730 attendance.
Maps showing the location of the Wyman’s Road crossing are attached hereto as Exhibit “F”.
I’m advised by Chief Covey that the CN Police have been unable to get close enough to the blockade to identify any of the individual protesters.
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 Wyman’s Road Crossing until a Court Order is obtained, and steps are taken to remove the blockade.
Impact of the Blockade
[4] The effects of the blockade were described by Mr. Bowness in his affidavit starting at paragraph 35 in the following terms:
- As of 1045 hours on March 19, 2014
(a) I am advised by Marc Beaulieu that the number of VIA passenger trains stopped is as follows: (A) all service for March 19, 2013 has been suspended. Some passengers are being bussed but they are unable to handle their usual volume of passengers by bus. As set out at paragraph 13 above, this means that 24 passenger trains have been suspended today.
(b) I am advised by Susan Williams, VIA’s General Manager, Central Region, that the number of passengers inconvenienced by the blockade is 4,022 per day.
(c) I am informed by Sylvain Landry, Senior Manager of Rail Traffic Control in Montreal, that the number of CN freight trains stopped is as follows: (A) Ten eastbound. (B) Nine westbound.
The impact of the blockage is already severe. In the port of Montreal, as of the evening of March 19, 2014, no rail cars will be available for outbound shipments to customers because they are not arriving in from the Kingston Sub. Two loaded and one empty crude oil shipments are stopped on the tracks as of 1045 hours on March 19, 2014, customers are in danger of shutting down facilities. Loaded rail cars and containers are piling up at CN’s operating yards and they will run out of storage room shortly. At that point, cars and containers will back up into parts of the operation across Canada and the United States.
The blockade will cause significant economic damage to CN, its customers and others. There is a Canadian Pacific rail line in the vicinity, however, it is my understanding that the Canadian Pacific rail line does not the physical straightaway connections or capacity to deliver more than a very small percentage of the traffic carried on the Main Line. 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 blockage. 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 25 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 people 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. Toronto is the major distribution centre of 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 impact on VIA and its customers is already severe. 4,022 customers scheduled to travel on 24 trains have been disrupted. A further 4,022 customers and 24 trains will be disrupted each day that the blockade is allowed to continue.
The resulting impact on CN’s operations will cause irreparable harm to CN and others. Such harm includes the follows:
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), water purification, jet fuel, lumber and forest products and manufactured goods;
c) increased yard congestion at CN’s facilities including increased costs of yard crew activities;
d) the disruption of motive power (engine) cycles from a normal balanced use and routings affecting CN’s operations;
e) loss of revenue to CN and increased costs to CN’s customers, including VIA; and
f) suspension of passenger traffic in the order of approximately 4,022 passengers (24 trains) per day.
- The scale and extent of these losses would be extremely difficult, if not impossible, to quantify in monetary terms.
Undertaking as to Damages
[5] CN has provided an undertaking as to damages.
The Governing Principles of an Interlocutory Injunction
[6] The test for obtaining an interlocutory injunction is set out by the Supreme Court of Canada in R.J.R. MacDonald Inc. v Canada (Attorney General), [1994] 1 S.C.R., 311 (S.C.C.). In order to obtain the interlocutory injunction, the following is required:
a) the moving party must demonstrate a serious question to be tried;
b) 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
c) there must be 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 of a decision on the application will have upon the public interest may be relied upon by either party.
[7] On an ex-parte motion such as the one that CN has 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 that the responding party would likely make to the extent known by the moving party.
DISCLOSURE
[8] The Court finds that CN has made full and frank disclosure of all material facts in this matter.
ANALYSIS
a) Serious Question to be Tried
[9] The evidence filed by CN demonstrates an overwhelming case that the protesters were trespassing on its property and were tortiously interfering with the use of the Main Line by CN and VIA. The Court finds that CN has met the first branch of the R.J.R. MacDonald test.
b) Irreparable Harm
[10] The evidence of Mr. Bowness about the impact of the blockade and the conduct of the protesters has caused and will continue to cause irreparable harm to CN, VIA and those who use the Main Line for personal and freight transportation. The Court finds that CN has met the second branch of the R.J.R. MacDonald test.
c) Balance of Convenience
[11] i. The comparative harm to each party.
Using a standard analysis, the balance of convenience overwhelmingly favours CN.
[12] ii. The issue of freedom of expression.
The conclusion does not change because these protesters are protesting for a reason that is unknown to either the Plaintiff or the Court. While expressive conduct by lawful means enjoys strong protection in our system of governance and the law, expressive conduct by an 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 a rail line and then argue that it is freedom of expression. The Canadian Charter of Rights and Freedoms does not affect such protection. This was examined by Justice D.M. Brown in the case of Batty v Toronto (City), 2011 ONSC 68(62) (Ontario SCJ).
[13] iii. The identity of the protestors as members of a First Nation.
The conclusion does not change because it appears from the evidence that the protesters were members of a First Nation making a statement on a matter unknown to either CN or the Court.
[14] Therefore, the Court finds that the third branch of the R.J.R. MacDonald test has been met by CN.
[15] A similar case was decided by D.M. Brown, J. in the case of Canadian National Railway v John Doe, 2013 ONSC 115. The Court adopts the reasoning set out in that case to grant this ex-parte injunction.
CONCLUSION
[16] For the reasons set out, the Court grants the injunction order sought by CN. This order is made on an ex-parte basis and therefore can only last for ten days. It will expire on March 29, 2014.
[17] The matter is to be returned to the courthouse in Belleville, Ontario on March 26, 2014 at 2:15 p.m.
The Honourable Mr. Justice Stanley J. Kershman
Date: March 26, 2014
Canadian National Railway Company v. Persons Unknown, 2014 ONSC 1945
COURT FILE NO.: CV-14-0074-00
DATE: 2014/03/26
ONTARIO
SUPERIOR COURT OF JUSTICE
CANADIAN NATIONAL RAILWAY COMPANY
Plaintiff
– and –
JOHN DOE, JANE DOE and
PERSONS UNKNOWN
Defendants
REASONS FOR DECISION
Kershman, J.