Court File and Parties

Court File No. 14-CV-509940

DATE: 20140808

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Enbridge Pipelines Inc., Applicant

– AND –

Jane Doe, John Doe, Respondents

BEFORE: Justice E.M. Morgan

COUNSEL: Andrew B. Matheson and Katherine A. Booth, for the Applicant

HEARD: August 8, 2014

ENDORSEMENT

[1] The Applicant seeks an interim and interlocutory injunction prohibiting any person not authorized by it from entering and/or occupying a valve installation site located on a property near the intersection of County Road #5 and Braemar Sideroad in Innerkip, Ontario (the “Property”). Since this past Tuesday, August 5, 2014, approximately 25 individuals have entered the work site and have occupied it and refused to leave. Their social media postings indicate that they are protesters who oppose any further construction on the Line 9 pipeline, as part of their larger opposition to the piping of oil from west to east through Ontario and Quebec.

[2] The Applicant has an easement over the Property for its gas pipeline and a number of agreements with the private owners of the Property that entitle it to enter the area and engage in such work, installations, and repairs as are necessary. The Applicant was scheduled to commence work installing a new valve this past week, but that work has been delayed due to the presence of the protesters.

[3] This motion was brought on an urgent basis, without notice to any of the protestors. When a judge could not be found to hear the matter locally in Woodstock, Ontario, it was transferred to Toronto to be heard today.

[4] The motion is supported by an affidavit submitted by Bert Fillion, the Senior Construction Coordinator for the Applicant. Mr. Fillion indicates that he is in charge of some 14 new or upgraded valve locations on the Line 9 pipeline running from Sarnia to Brockville, Ontario, including the one at issue here. He indicates that the Line 9 pipeline runs from Sarnia to Montreal, Quebec, and that recently the National Energy Board has approved a reversal of the Line 9 pipeline so that the flow of oil will run eastward instead of westward.

[5] The valve work being done at the Property is part of this larger operation and has been mandated by the National Energy Board review. Mr. Fillion deposes that the work involves isolating stretches of pipeline by installing valves at strategic intervals to stop the flow of oil “in the unlikely event of line rupture or failure, in order to prevent or minimize oil leakage into the surrounding area.” This is one of 14 valves that are being added or upgraded along Line 9 in order to enhance protection from the increased volumes that are expected to flow through the pipeline.

[6] Mr. Fillion indicates that, “The Valve Installation is a major project that is time sensitive, requiring weeks of complex work leading up to a hard deadline to complete the installation by mid-September, 2014.” He goes on to depose that,

A project of this magnitude involves the organization and deployment of extensive resources and expertise. The timing and execution of the project cannot be dictated by persons who do not understand or respect Enbridge’s safety and operational protocols. Enbridge cannot proceed with the required and time-sensitive Valve Installation with Trespassers on the site.

[7] While the valve installation project is motivated by pipeline safety concerns, those concerns are not immediate. That is, the installation has been mandated by the National Energy Board in the context of the reversal of direction of the oil flow, which will take place at some point during the upcoming months or year. The Applicant does not state that there is an imminent safety concern which prompted the work to be done now. Rather, the immediate concern is around operational issues and the complexity of coordinating the construction crews necessary to do the job.

[8] There is also a timing issue with respect to the Applicant’s customers, since work on this valve will entail a shutoff of oil. The installation work has been scheduled now in order to provide the least possible disruption to the Applicant’s customers. Counsel for the Applicant advises that there is a “short window” in which the work can be completed without entirely disrupting the supply of oil. The work has already been delayed since the protesters arrived on the site on August 5th, and any more time may seriously impact on the economic circumstances of the Applicant and its customers.

[9] Counsel also stresses that the Applicant has property rights that authorize it to do the work on the valve. Citing the Supreme Court of Canada’s judgment in Canadian Pacific Ltd. v Paul, [1988[ 1988 104 (SCC), 2 SCR 654, at para 36, he submits that, “the existence of an easement and right of way is a proprietary right that is sufficient to support an injunction in the case of trespass.” At the hearing, counsel for the Applicant made reference to the blogs written by the protesters, which are reproduced in the Motion Record, indicating that the group’s aim is to “blockade indefinitely”; counsel has described this as an intentional and “flagrant violation of the Applicant’s property rights.”

[10] The Applicant submits that property rights are placed by the law in a privileged position, and that trespass is virtually always remedied by an injunction. Indeed, Mr. Justice Sharpe, in his book Injunctions and Specific Performance (Canada Law Book, loose leaf), at para 4.610, observes, quoting Lewvest Ltd. v Scotia Towers Ltd. (1981), 1981 2662 (NL SC), 126 DLR (3d) 239 (Nfld SC):

Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to inunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.

[11] The case law shows that trespasses to property by protesters are often met with an injunction, even where they cannot be individually identified. McLachlin J. (as she then was) made it clear in Greenpeace Canada v MacMillan Bloedel Limited, 1996 165 (SCC), [1996] 2 SCR 1048, at 1065, that the courts in Canada have rejected the argument that it is somehow improper “to use private litigation for the sole purpose of obtaining an injunction to constrain public action.”

[12] That said, I am concerned that the protesters must at least have a chance to be heard. They have been described as environmental and political activists; the Supreme Court has repeatedly held that “liberal democracy demands the free expression of political opinion, and affirmed that political speech lies at the core of the Canadian Charter of Rights and Freedoms’ guarantee of free expression”: Harper v Canada (Attorney General), 2004 SCC 33, [2004] 1 SCR 827, at para 1.

[13] While property rights and economic interests are important in the Canadian legal system, so are rights of expression. I agree that the time, place, and manner of expression can be tempered by competing rights, see Committee for the Commonwealth of Canada v Canada, 1991 119 (SCC), [1991] 1 SCR 139, and that generally “[p]ersons are free to engage in political protest of that public nature, but the law does not permit them to do so by engaging in civil disobedience through trespassing on the private property of others…” Canadian National Railway v Chippewa of Sarnia First Nation, 2012 ONSC 7348, at para 23. Nevertheless, there must be some reason other than the unilateral claim to property rights to deprive otherwise non-violent protesters the right to be heard.

[14] Here there is an economic imperative to the timing of the motion, but there is no safety imperative that created the short timeline and that made notice of the Application impossible. The valve installation has a safety motivation as evidenced in the National Energy Board report, but that is a long term concern due to the upcoming changes in the oil flow, not an immediate one.

[15] At the hearing, I asked counsel why this injunction Application could not have been brought on notice rather than ex parte. He explained that the Applicant is faced with adversaries that are difficult to identify. He described them as a “shifting group of individuals”, with no organizational or other affiliation on whom the Application could be served or with which the Applicant could deal in an orderly way.

[16] Counsel also indicated that while there has been no violence by this protest group – except that the fence around the valve installation site was breached – the Applicant has had experiences with other protests in Ontario that make it justifiably wary of acting in a way that could be interpreted as provocative. Apparently, the O.P.P. is monitoring the situation, but they will not remove the protestors unless a court orders them to do so. Counsel advises me as well that any Order issued by this court will be placed in the hands of the local sheriff in Woodstock, Ontario, and that that office has an enforcement officer who will post notice of any order issued by the court, probably in coordination with the police.

[17] Given the substantial economic damage that the Applicant seeks to avoid and self-evident property rights that the Applicant seeks to enforce, it is clear to me that there is a serious issue to be tried and that the balance of convenience is with the Applicant, at least in the short term. When those facts are combined with the difficulty of actually serving notice on any of the protesters, this is an appropriate case for granting a short injunction on an ex parte basis even in the absence of an immediate safety motivation for installing the valve. See Canadian National Railway Co. v Persons Unknown, 2014 ONSC 1945.

[18] As the Newfoundland Supreme Court noted in Nalcor Energy v NunatuKavut Community Council Inc., 2012 NLTD 175, an injunction is warranted where there is no other remedy that can in a practical way protect the moving party’s rights. At the same time, the Newfoundland court wisely observed that the object of an exercise like this is to fashion a proportionate remedy so that the rights of the parties – including not only the property rights of the Applicant, but the free speech rights of the protestors – can be accommodated.

[19] In Nalcor, this balancing was accomplished by establishing a “protest free zone” around the disputed construction site, outside of which the protesters were free to express their opposition to the construction project at issue there. Under the present circumstances, the balance can be accomplished by issuing as short an injunction as is practical on a without notice basis, and requiring the Applicant to return to court on notice to its opponents if it wishes to extend the short interim injunction.

[20] As already noted, this matter was heard in Toronto due to scheduling difficulties with the court in Woodstock, Ontario, which would have been the relevant venue for the hearing. In directing this matter to be heard in Toronto, the Regional Senior Justice for Toronto specified that after today’s disposition it is to be transferred to the South-West Region (either Woodstock or London, Ontario). That is most appropriate, as there are local concerns in the region in which the Property and work site is located that should be taken into account in either fashioning or rejecting a more permanent remedy. I leave it to the judge presiding at that hearing whether to require those opposing the Applicant to organize or collect themselves in a way that will allow their submissions to be presented in an orderly way.

[21] I am satisfied that an injunction should issue substantially in the form sought by the Applicant, although I am of the view that it should be of shorter duration than the 10 days that the Applicant seeks. The order shall be in force until Friday, August 15, 2014, by which date the Applicant must move in court in either Woodstock or London if it wishes to continue the order.

[22] If the Applicant does move to continue the order, it shall be on at least 3 days’ notice to the protesters. This shall be accomplished by posting notice of the return date at or as proximate as possible to the valve installation site at the Property. The draft order provided to me by counsel for the Applicant provides in paragraph (g) that this or any other order in this matter may be served either personally on any affected person or by posting copies at the valve installation site or as close to the site as possible. Optimally, the protesters should be given notice of the return date for any motion to continue the injunction at the same time that they are given notice that the protest has been enjoined for a week.

[23] It is important that the protesters’ right to be heard be a realistic one, and that notice of a new hearing date either be disseminated before the protesters disband or be announced in a way that is likely to come to their attention. It is not the purpose of an ex parte injunction to stall the proceedings so that the Applicant’s opponents fade away without being heard in court.

[24] I therefore also require the Applicant to obtain a new return date from the South West Region court as soon as possible, preferably today, impressing on the scheduling office the urgency of obtaining a hearing date before or on August 15, 2014. If that new hearing date can be obtained today, it is to be included with the notice of this order as described in paragraph (g) of the Applicant’s draft. If a date cannot be obtained today, the posted notice of the one week injunction order is to be accompanied with a sentence that advises that a new motion date will be announced and posted by the Applicant in the same place during the coming week.

Morgan J.

Date: August 8, 2014