Court File and Parties

COURT FILE NO.: 17-60671 DATE: 2017/03/15 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ENBRIDGE PIPELINES INC., Plaintiff AND: TODD WILLIAMS and WAYNE HILL, Defendants

BEFORE: The Honourable Justice D.A. Broad

COUNSEL: Andrew B. Matheson and Bryn Gray, for the Plaintiff R. Aaron Dettlor and David Shiller, for the Defendants

HEARD: March 7 and 8, 2017

Endorsement

Background

1The plaintiff (“Enbridge”) has brought a motion for an interim and interlocutory injunction prohibiting the defendants from interfering with its maintenance work sought to be carried out and completed in respect of two oil pipelines, namely Line 10 and Line 11, built in 1962 and 1971 respectively, in the Hamilton, Ontario area. The motion is supported by the affidavits of Alexandra Veljkovic and Scott Arndt, each affirmed or sworn on February 23, 2017 and a supplementary affidavit of Scott Arndt sworn March 1, 2017.

Process To Date

2The motion was initially returnable on February 28, 2017. Counsel for the defendants sought a two week adjournment in order to respond to the issues and to alert the Attorney General of Canada. Justice Goodman denied the request for a two week adjournment but granted a one week adjournment to March 7, 2017 on terms that any supplementary materials of Enbridge be served and filed by March 1, 2017 at 5:00 p.m., that the defendants’ responding materials and Factum be served and filed no later than March 3, 2017 at 5:00 p.m. and that any reply materials by Enbridge be served and filed by noon on March 6, 2017. He also directed that the defendants notify the Attorney General that the matter is set to return on March 7, 2017.

3The defendant Todd Williams (“Mr. Williams’) filed an affidavit affirmed March 3, 2017. The defendant (“Mr. Hill”) did not file an affidavit in response to the motion.

Summary Of Factual Assertions By Enbridge

4The affidavit evidence filed on behalf of Enbridge included the following allegations.

5Enbridge owns and operates an interprovincial pipeline system that extends across multiple Canadian provinces and into the United States. Line 10 is a 143 km-long stretch of pipeline which runs from North Westover, Ontario into the United States near Buffalo, N. Y. Line 11 is a 75 km-long stretch of pipeline that runs from Westover, Ontario to Nanticoke, Ontario. Easements in respect of the lands upon which maintenance activities are sought to be carried out were originally granted by the various landowners to Interprovincial Pipeline Company, stated in the Supplementary Affidavit of Scott Arndt to be a predecessor of Enbridge. Pursuant to the easement agreements Enbridge enjoys rights with respect to, inter alia, operation, maintenance, inspection, alteration, removal, replacement, reconstruction, and/or repair of pipelines, together with the right of ingress and egress to and from the affected lands for its servants, agents, the articles, supplies and equipment.

6Both pipelines have operated continuously since they were built, except when shutdown temporarily for maintenance.

7Enbridge has a comprehensive pipeline preventative maintenance program in respect of its pipeline network. Under the maintenance program field inspections and possible repairs are called for in some cases, which involve an excavation around the affected pipeline segment, referred to as a “Maintenance Dig “.

8Enbridge states that it takes a proactive approach to its investigation and remediation of pipeline features and Maintenance Digs are a critical part of the proactive approach aimed at ensuring safe and efficient operation of the pipelines. A Maintenance Dig typically lasts approximately 15 days depending on circumstances and are conducted on easements over private property which authorize it to enter upon rights-of-way in order to survey and conduct work in connection with the maintenance of a pipeline. Enbridge states that it has proprietary and contractual rights to perform Maintenance Digs on all of the 15 Maintenance Dig sites in issue in this proceeding.

9Enbridge asserts that Mr. Williams and Mr. Hill have been regularly interfering with its work crews at Maintenance Dig sites since January 26, 2017. It says that there have been dozens of separate incidents of Mr. Williams interfering with its work crews since that date and at least six incidents involving Mr. Hill doing so. It says that the interfering activities of the defendants has continued and intensified notwithstanding repeated trespass warnings issued by Enbridge. Enbridge alleges that one or both of the defendants have torn down snow fences, blocked roads and gates, and have verbally demanded that work be shut down. In one incident Mr. Williams blocked a Maintenance Dig site such that Enbridge employees working at the site could not leave until he was persuaded to move his truck. Enbridge alleges that after two weeks of obstruction the defendants placed rabbit traps to obstruct its access to certain Maintenance Dig sites, asserting treaty hunting rights.

10Enbridge alleges that Mr. Williams and Mr. Hill have identified themselves to Enbridge personnel as representatives of the Haudenosaunee Development Institute (“HDI”) and have said that they are “enforcers” of HDI. In its Factum Enbridge stated that HDI is publicly described as a “department” of Haudenosaunee Confederacy Chief’s Council (“HCCC”) that is responsible for “regulating development” on behalf of HCCC. HCCC is stated to be an unelected body whose stated purpose is to represent the hereditary governance of the Haudenosaunee Confederacy in Ontario. The Haudenosaunee, also known as Six Nations in Ontario, have an elected governance body, being the elected council of the Six Nations of the Grand River which is a recognized First Nation under the Indian Act.

11Well in advance of undertaking the Maintenance Dig work on the affected sites, Enbridge wrote to two First Nations (Six Nations of the Grand River and the Mississaugas of the New Credit) and to HDI describing the nature of the work. The letter to HDI was dated November 11, 2015 and described the location and the nature of the work in detail and made reference to the need to obtain a permit to take water from the Province’s Ministry of Environment and Climate Change. No objections or concerns were raised by HDI or the two First Nations and a permit to take water was granted by the Ministry on February 10, 2016.

Summary Of Factual Assertions By Todd Williams

12The affidavit of Mr. Williams included the following allegations.

13As a Haudenosaunee citizen he holds the ability to exercise rights upon Haudenosaunee traditional treaty territory further to the solemn and sacred agreements made between his ancestors and the Crown. Mr. Hill is also Haudenosaunee and holds the ability to exercise the same rights.

14Mr. Williams has been advised by elders and leaders in his Nation and Confederacy of his rights to the land which include harvesting rights which have been recognized, in part, by way of the Nanfan Treaty of 1701. The text of the treaty as recorded in the English language only forms a small part of the treaty promises.

15Elders and leaders in his Nation and Confederacy have advised that the Nanfan Treaty is properly to be interpreted as covering most of what is referred to as Turtle Island (North America).

16The text of the Nanfan Treaty of 1701 is set out in Mr. Williams’ affidavit. He states his understanding that the treaty rights in question have been recognized by the court in the case of R. v. Ireland, [1990] O.J. No. 2365 (Ont. Ct. Gen Div.) and by the Government of Ontario in a statement attributed to former Attorney-General and Minister of Aboriginal Affairs Chris Bentley in an article in the Kitchener Record. The article reported on a protocol entered into between the Hamilton Conservation Authority and the HCCC with respect to native hunting on conservation lands. The statement attributed to the Minister was that the Nanfan Treaty applied to Hamilton Conservation Authority lands. The date of publication of the article is not provided in Mr. Williams’ affidavit.

17The “Mitchell Map of 1755” prepared by the Lords of Trade and Plantations explains the Crown’s understanding that the Nanfan treaty did not surrender land and that the Crown in 1755 considered the land in question in this proceeding to be surrendered Haudenosaunee land.

18Based upon his participation with his Nation and Confederacy Mr. Williams does not believe that Enbridge has at any time attempted to negotiate with respect to the infringements it is causing upon his treaty rights, even though he knows that the HCCC, through its representative entities, is committed to good faith negotiations as a means to peacefully resolve disputes.

19Mr. Williams set out specific corrections to what he characterized as misstatements Enbridge made in its Notice of Motion and the supporting affidavits. He also quoted at length notes which he made in relation to the exercise of his harvesting rights. He made these notes as he was fearful about Enbridge attempting to deny him his rights.

20Although he acknowledged that he is not an expert in treaties, Mr. Williams stated that he provided the information in his affidavit so that the court can understand that he has a very well-founded understanding of his rights and that he has been exercising his rights in good faith, consistent with his understanding from the material provided, but more importantly based upon the oral traditions and practices of his Clan, Nation and Confederacy.

21Mr. Williams stated that the commitment to peaceful negotiation and discussion stands as one of the most important principles of his Clan, Nation and Confederacy. He stated that “in our language the informing principles and commitments to peace are captured by what we referred to as the three good words. The three words are roughly translated as: Sken:nen (Peace) Ka’shatstenhshera (power or strength to resist a turn away from the good mind) and Ka’nikonhri:io (righteousness or holding a good mind).”

Preliminary Issue Re Notice Of Constitutional Question

22The defendants served a Notice of Constitutional Question on each of the Attorney General of Ontario and the Attorney General of Canada on March 6, 2017. In the Notice the defendants stated that they intend to question the constitutional validity of:

(a) the Trespass to Property Act, R.S.O. 1990, T. 21 as it may apply to a Haudenosaunee person undertaking harvesting activity pursuant to treaty rights recognized and guaranteed, inter alia, by the Nanfan Treaty of 1701 and section 35 of the “Constitution Act, 1982”;

(b) any interim and interlocutory injunction which would directly or indirectly impair, infringe and/or interfere with the exercise of constitutionally recognized treaty rights where her Majesty the Crown in Right of Ontario and Canada have not discharged their collective obligations to uphold the Honour of the Crown; and

(c) the granting of any easement under the Province of Ontario’s land registry system where the granting and recognition of the easement by the Province of Ontario would limit, impair, interfere and/or infringe upon an established treaty right on the basis that the granting and recognition of the easement would be ultra vires the Province of Ontario where the Province of Ontario had not discharged its obligation to uphold the Honour of the Crown.

23By letters dated March 6, 2017 each of the Ministry of the Attorney General (Ontario) and the Department of Justice Canada advised that one day is not sufficient to obtain instructions on the matter and accordingly, would not be in attendance and would not be participating in any hearing on March 7, 2017.

24Counsel for the defendants, although not seeking a postponement of the argument of the motion, proposed that, upon completion of submissions, the court withhold its determination in order to provide an opportunity for the Federal and Provincial Crown to make written submissions.

25In my view the defendants’ request is unwarranted. Subsection 109(2.2) of the Courts of Justice Act, R.S.O. 1990, c. 43 provides that a Notice of Constitutional Question shall be served, in the circumstances referred to at subparagraphs 1. and 2. at least 15 days before the date on which the question is to be argued, unless the court orders otherwise. By his endorsement made February 28, 2017 Justice Goodman adjourned the matter to a fixed date for argument on March 7, 2017 and directed the defendants to advise the Attorney General that the matter was set to return on that date.

26It was open to the Attorney General of Ontario and the Attorney General of Canada to attend to seek an adjournment to permit them to respond. They did not do so. Neither did they seek an adjournment in their correspondence or request leave to make written submissions. There is no indication before that court that either Attorney General wishes to participate in this proceeding.

Analysis

(a) Application of the Principles in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation (2008) 2008 ONCA 534, 91 O.R. (3d) 1 (C.A.)

27The defendants submit that the granting of the injunction sought would impair the recognized treaty rights of the defendants and that, rather than considering the traditional test for the granting of an interlocutory injunction, the court should follow the direction given by the Court of Appeal in Frontenac Ventures at paras. 43-46. At paragraph 46, Justice MacPherson, writing for the Court, in obiter dicta, stated:

...where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.

28The effect of the defendants’ submission is similar to the position asserted by the appellants in the recent case of Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46 (Newfoundland and Labrador Court of Appeal) at para. 35 that, where issues involving the duty to consult and accommodate aboriginal claims are involved, the court must address three questions as a pre-condition to granting injunctive relief: (i) whether every effort has been made by the court, to encourage consultation, negotiation and accommodation; (ii) whether the party with the duty to consult and accommodate has fully and faithfully discharged its duty to consult; and (iii) whether every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it.

29Chief Justice Green rejected this submission, observing, at para. 36 that the propositions advanced by the appellants are not supported by authority. At paragraph 37 he stated that the import of the recent decision of the Supreme Court of Canada in Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227 (S.C.C.) works against acceptance of the propositions.

30In Behn a number of individuals from the Fort Nelson First Nation erected what, in effect, amounted to a blockade of a logging company’s access to logging sites in respect of which it had been granted licenses to harvest timber. The logging company brought a tort action against the members of the Aboriginal community. The Supreme Court held that it was an abuse of process for individual Aboriginal litigants to plead as a defence to the action that certain authorizations which the Crown had issued to the Company were void due to an alleged failure by the Crown to consult. The individual Aboriginal litigants did not contest the validity of the authorizations, by way of legal challenge, when they were issued but rather employed self-help by subsequently erecting a blockade of the site.

31Justice Lebel, writing for the Court in Behn, at para. 42, stated:

[The individual aboriginal litigants] did not raise their concerns with [the company] after the Authorizations were issued. Instead, without any warning, they set up a camp that blocked access to the logging sites assigned to [the company]. By doing so, [they] put [the company] in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations. To allow [the individual aboriginal litigants] to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown's constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.

32At paras. 41 and 42 of Nalcor Chief Justice Green stated:

41. I conclude, therefore, that the principles applicable to the granting of an injunction are no different just because aboriginal claims for consultation and accommodation may be involved in the issues regarding the cause of action being asserted and the specific remedy being sought. There is no pre-condition to application of the general principles for granting or refusing an injunction that the claimant satisfy the court that the duty to consult and accommodate has been exhausted and that the court must take steps to facilitate such consultation and accommodation. If there were such pre-conditions, a defendant resisting a remedy for vindication of claimed rights would always be able to stymie, or at least significantly delay, an injunction by simply asserting that the duty to consult has not been exhausted. That result would run counter to reassertion in Behn that the duty to consult does not give aboriginal peoples "a veto" (paragraph 29).
42. That is not to say, however, that claims concerning the duty to consult and accommodate are completely irrelevant to any claim for an injunction. If, indeed, the claimant asserting the cause of action on which the claim to an injunction is based, is the Crown or an agent of the Crown, the question of whether the Crown and the agent have made efforts to comply with their duty to consult and accommodate may be relevant to the exercise of the Court's decision to deny an injunction on discretionary grounds.

33It is noted that in reference to the relevance of a duty to consult and accommodate to a claim for an injunction the claimant in the present case is not the Crown, nor an agent of the Crown. Accordingly, the question of whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court’s decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds.

34The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised.

35In John Voortman & Associates Ltd. v. Haudenosaunee Confederacy Chief’s Council, [2009] O.J. No. 1350 (S.C.J.) it was observed by Henderson, J. at para. 71 that there had been, and continued to be, ongoing consultations regarding the Haldimand Tract, which consultations dealt in part with the plaintiff’s property. However, Justice Henderson’s consideration of issues relating to consultation was in the context of the application of the first branch of the traditional test for the granting of an interlocutory injunction, whether that is characterized as a serious question to be tried, or a strong prima facie case. An independent precondition requiring consultation before the granting of injunctive relief could be considered was not recognized in Voortman. Indeed at para. 64 Justice Henderson stated that “the Frontenac case cannot be interpreted to mean that every dispute between a private landowner and an aboriginal group the Crown must engage in exhaustive consultations.”

36In Brantford (City) v. Montour, 2010 ONSC 6253 (S.C.J.) an interlocutory injunction was sought by the city to prevent work stoppage at certain construction sites as a result of protests by various First Nations individuals who claimed ownership of the land as result of past treaties. Arrell, J. held that Frontenac was not similar to the case before him, as it involved mostly undeveloped provincial Crown land which was the subject of an accepted land claim by both the federal and provincial governments, not land owned privately which had been deeded from a Crown patent within long established city borders. Justice Arrell’s consideration of the consultation that had taken place was within the context of his determination of the issue of where the balance of convenience lies at the third branch of the test for an interlocutory injunction. Consultation was not held to be a stand-alone precondition to the granting of an injunction.

37In my view to impose a duty to consult on the Crown, as a precondition to any consideration of the test for the granting of an interlocutory injunction in the circumstances of this case would, in the words of the Supreme Court of Canada in Behn, be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.

(b) Test For The Granting Of An Interlocutory Injunction

38The traditional test for the granting of an interlocutory injunction was stated in the case of RJR-MacDonald Inc. v. Canada (Attorney-General), [1994] 1 S.C.J. 311 (S.C.C.):

1. the plaintiff must establish a serious question to be tried;
2. the plaintiff must show that it will suffer irreparable harm if the injunction is not granted; and
3. the balance of convenience favours the granting of an injunction. This involves a consideration of which party will suffer greater harm if the injunction is granted or refused.

39Notwithstanding acceptance of the general rule that a plaintiff need only establish a serious question to be tried, an exception was recognized by the Supreme Court of Canada in RJR-MacDonald at para. 56 for a case where the result of the interlocutory motion will in effect amount to a final determination of the action. As observed in R.J. Sharpe, Injunctions and Specific Performance at para.2.210 where this is the situation, it is essential as a matter of justice that the strength of the case be the predominant consideration.

40In the present case the issue of whether Enbridge should be entitled to carry out its Maintenance Dig work on the sites in question, free from interference by Mr. Williams and Mr. Hill, will be determined by the outcome of the motion for an interlocutory injunction. If the injunction is granted, the maintenance work will have been carried out prior to the matter coming on for a final determination at trial. Accordingly, I accept that the strength of the plaintiff’s case must be assessed according to the standard of a “strong prima facie case” rather than the lower standard of “serious question to be tried”.

(i) Strong Prima Facie Case

41The affidavit evidence establishes that Enbridge is the grantee, by succession, of easements over the lands comprising the Maintenance Dig sites which grant to Enbridge the right to enter onto the land to maintain and repair the pipelines at the sites in question.

42In my view, if the defendants have interfered with the exercise by Enbridge of its rights to maintain and repair the pipelines under the easements, such interference would constitute trespass and a violation of Enbridge’s property rights.

43The elements of the tort of trespass to land are well established and were summarized in the case of Calandra v. Parasco, 1998 CarswellOnt 4406 (Ont. Ct. Gen. Div.) at para. 13, as follows:

The tort of trespass to land is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification. To be actionable, the defendant’s act must be voluntary, that it may not be intentional. Trespass may be committed either intentionally or negligently. The interference with the plaintiff’s property must be direct, not indirect or consequential.

44The Supreme Court of Canada in the case of Canadian Pacific Ltd. v. Paul, 1988 CarswellNB 70 (S.C.C.) has confirmed 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. Similarly, the Superior Court of Justice granted an interim ex parte injunction preventing trespass over the plaintiff’s right-of-way in the case of Canadian National Railway v. Chippewa of Sarnia First Nation Band, 2012 ONSC 7348 (S.C.J.).

45The defendants submit that Enbridge has not made out a strong prima facie case as an insufficient evidentiary basis has been set out in the affidavit material showing that they have committed the tort of trespass or interfered unlawfully with Enbridge’s efforts to carry out its maintenance program at the sites. They say that, to a large extent, the affidavit material in support of the motion does not comply with rule 4.06(2) which requires that an affidavit be confined to the statement of facts within the personal knowledge of the deponent or to other evidence that the deponent could give if testifying as a witness in court, except where the rules provide otherwise. Although rule 39.01(4) provides that an affidavit for use on a motion may contain statements of the deponent’s information and belief, the source of the information and the fact of the belief must be specified in the affidavit.

46The defendants submit that neither of the deponents Ms. Veljkovic and Mr. Arndt gave evidence that they ever attended at the sites. Accordingly, any evidence concerning the activities of the defendants is derived from information provided by others. Ms. Veljkovic offers no evidence with respect to the activities of the defendants. The defendants say that much of the evidence offered by Mr. Arndt is conclusory and overstated and does not disclose the source of the information he relates in his affidavits.

47Moreover, the defendants submit that the Daily Inspection Reports which are appended to the affidavit of Scott Arndt sworn February 23, 2017 are not admissible as “business records” either at common law or pursuant to s. 35 of the Evidence Act, R.S.O. 1990, c. E. 23. They say that the records do not disclose the person or persons who made them, there is no evidence that they were made in the usual and ordinary course of any business, there is no evidence that it was in the usual and ordinary course of such business to make the reports, the reports were not made in the ordinary course of business but as a record of occurrences for the purpose of putting evidence before the court, and no circumstantial guarantees of reliability are present in the reports.

48The defendants point to the case of EllisDon Corp. v. Ontario Sheet Metal Workers ‘and Roofers’ Conference, 2013 ONSC 5808 (Div. Ct.) where Molloy, J., writing for the Court, stated at para 34, following a review of the history of the business records exception to the hearsay rule, that “the business records provision in s. 35 of the Evidence Act is a codification of an exception to the hearsay rule in a situation where circumstantial guarantees of reliability are present. Those circumstances related to the reason for the creation of the record and the duty of those preparing it to maintain accuracy.”

49I accept that much of the evidence of Ms. Veljkovic and Mr. Arndt, insofar as it purports to describe actions and activities of the defendants based upon information provided by others without setting forth the source of the information, represents inadmissible hearsay.

50However, there is evidence offered by Mr. Arndt in his initial and supplementary affidavits with respect to actions and activities of Mr. Williams where the source of his information is disclosed.

51At para. 44 of his initial affidavit, Mr. Arndt deposed that on February 7, 2017 Herb Shields advised that he attended at one of the sites to speak with Mr. Williams at which time Mr. Williams advised that he would not leave the site and that he would be blocking it every day until his demands were met. Hamilton Police Service was called and they attended and spoke with Mr. Williams but did not remove him. The Daily Inspection Report documenting this incident was attached as Exhibit 23.

52Similarly, at paragraphs 3, 4, 5, 7, 8 and 10 of his supplementary affidavit Mr. Arndt deposes that he was advised by Danny Graziano of his observed activities of Mr. Williams attending at Maintenance Dig sites, placing traps on an affected property, parking his vehicle to block the entrance to a Maintenance Dig access gate, standing in front of the entrance to a maintenance gate and refusing to move, and walking up to and around a construction site gate and emergency exit gate.

53Moreover, at paras. 9 and 10 of his Affidavit Mr. Williams admitted to trespassing on certain of the affected Maintenance Dig sites and interfering or attempting to interfere with Enbridges’ preventative maintenance activities.

54At para. 9 Mr. Williams deposed that he had reviewed the Enbridge affidavits and set forth “corrections to misstatements Enbridge has made.” The first two corrections are to statements made in the notice of motion and the balance are to statements made in the supporting affidavits. The reasonable inference which can be drawn is that, to the extent that Mr. Williams was not correcting alleged misstatements, he was admitting to the balance of the allegations in the paragraphs specifically referenced.

55At para. 10 Mr. Williams admits that on February 9 an Enbridge worker asked him if he would be moving to let them access the site that day to which he responded “no”. He admitted to parking in front of the work entrance on February 10, checking his traps and upon being asked if he was going to move to allow Enbridge to work he responded “no, I’m exercising my treaty rights”. On February 24 and 25 he admitted to placing traps at the roadway entrance and on March 3 he admitted to placing tree branches over his traps at three locations to try to camouflage them.

56In my view, the Daily Inspection Reports are admissible into evidence as business records. At paragraph 22 of his initial affidavit Mr. Arndt deposed that Reports are “invariably made contemporaneously with the incidents they describe in the ordinary course of business.” The reports are on preprinted forms which call for certain standard information to be entered and includes sections for “Progress Summary”, “Environmental Comments”, “Safety Comments” and “General Comments (scope, schedule, etc.).” It is apparent from a review of the Daily Inspection Reports that they were not prepared solely for the purpose of building a case for litigation, but rather for the purpose of documenting all relevant activities and occurrences on the worksites on a daily basis. The fact that the occurrences included observed activities of the defendants does not detract from their character as records made in the ordinary course of business of Enbridge for business purposes.

57I find that there are circumstantial guarantees of reliability present with respect to the Daily Inspection Reports, as represented by corroboration supplied by the balance of the admissible evidence, including the admissions made by Mr. Williams in his affidavit.

58Although the admissible evidence deposed to by Mr. Arndt, based upon information provided by Mr. Shields and Mr. Graziano, related only to actions and activities of Mr. Williams and not Mr. Hill, and although Mr. Hill did not file an affidavit with admissions, there is evidence contained in the Daily Inspection Reports with respect to Mr. Hill attending at the sites and interfering or attempting to interfere with Enbridge’s work and activities. On February 2, 2017 it was reported that Mr. Hill and Mr. Williams arrived at the site, removed the snow fence gate with the no trespassing sign to access the site, and parked their vehicles to block off the exit. Mr. Hill was reported as agitated and verbally abusive and threatened to stand in front of the excavator if it were to move. On February 4, 2017 it was reported that Mr. Hill arrived on a site and reassured the author of the report that he and Mr. Williams would not let Enbridge continue work there.

59I am satisfied on the basis of the admissible evidence that Enbridge has made out a strong prima facie case of trespass by both defendants and interference by them with the lawful exercise of the rights conferred on Enbridge by the easement agreements on the affected Maintenance Dig sites.

(ii) Irreparable Harm

60Justice Sharpe in Injunctions and Specific Performance stated at para. 4.10 that “where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured… Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.”

61In the case of British Columbia Hydro and Power Authority v. Boon, 2016 BCSC 355 (B.C.S.C.) it was held at para. 59 that “where a prima facie case of trespass is made out, the natural remedy is an injunction. This is because the act of trespass is actionable per se and does not require proof of damages.”

62In this case the affidavit evidence indicates that the work is being done as part of a program of preventative maintenance to ensure the safety of existing infrastructure. In addition to the harm which may be caused to Enbridge’s own interests, there is a public interest in allowing it to fulfil its right and duty to maintain the pipelines. The harm which Enbridge would suffer from being prevented, by the actions of the defendants, from carrying out its mandated preventative maintenance program would not be compensable in damages.

(iii) Balance Of Convenience

63I accept the submissions of Enbridge that there are number of factors which strongly favour the granting of an injunction in this case, including safety concerns arising from interference with its maintenance activities, as features on the two pipelines have been identified as requiring inspection and potential repair, there are security concerns with respect to control of the Maintenance Dig sites in issue due to the presence of heavy and sensitive equipment, there will be economic harm caused to Enbridge and its customers if interference with the sites by the defendants is allowed to continue, and the injunction sought is very limited, tailored to simply prevent the defendants from continuing to interfere with the Maintenance Dig sites.

64No new infrastructure is being constructed by Enbridge. It is seeking only to maintain the integrity and safety of existing pipelines.

65The defendants say that their rights to free and undisturbed harvesting of rabbits and/or deer has been judicially recognized, citing the case of R. v. Ireland, [1990] O.J. No. 2365 (Ont. Ct. Gen Div).

66The Ireland case involved a prosecution brought by the provincial Crown against two members of the Oneida First Nation for hunting without a license and hunting in the closed the season contrary to the Game and Fish Act, R.S.O. 1980, c.182. Gautreau, J. noted that under the Nanfan treaty the Iroquois ceded all of the territory which is now Southwestern Ontario to the British in return for a guarantee of free and undisturbed hunting rights over the lands in the territory forever. He characterized the issue in the case as “whether these hunting rights may be exercised today on non-reserve lands in Elgin County, unrestricted by the provisions of the Game and Fish Act.”

67The Ireland case involved a prosecution under a provincial statute. It did not involve a dispute between an aboriginal group or individual asserting a treaty-protected right to hunt and an owner of private property. Indeed, on this point Gautreau, J. stated as follows, at para. 51- 52, as part of his consideration of whether the hunting rights reserved by the Nanfan Treaty were limited or extinguished based on original intent or the common expectation of the parties:

There are two rights in opposition here: the Crown's ownership and consequent rights to use and develop the land and the Indians' right to hunt freely. There are no limiting factors in the treaty. Therefore one can reason that the Indians may hunt anywhere in the territory and this includes private property. This could lead one to suppose that they might hunt racoons in the backyard of a private home. With respect, I believe that this goes beyond what the parties intended or what is reasonable. To permit it would be to trample on the Crown's ownership rights. On the other hand, it would be equally unreasonable for the Crown to argue that its legal title and its right to use, develop and enjoy the lands can frustrate, and in effect abolish, the hunting rights of the Indians.

Neither of these positions is reasonable. The answer must come from interpretation of the treaty by determining the intention of the parties. How did they intend to solve the problem if rights came into conflict?

68Justice Gautreau went on at para. 55 as follows:

I think it can be concluded from history that the British government wished to colonize, use and develop the land for its benefit. Therefore it is unreasonable that absolute rights should have been granted to the Indians which paralyze the Crown's use of the lands. On the other hand, the British wanted the Iroquois as their allies, and understood the importance of free and uninterrupted hunting to them. Therefore it is unreasonable that absolute rights should have been intended for the Crown which would paralyze the Indians' right to hunt. The conclusion must be that the parties intended that the competing rights should be reconciled, and this reconciliation would vary with time and circumstances. The rights are not frozen in time. A treaty must be seen as a living document that evolves with changing times according to the underlying original intent. When the rights of the parties conflict they must be adjusted.

69Justice Gautreau dismissed the appeal from acquittal due to an inadequate evidentiary basis, as there was not enough evidence to permit the court to make any findings of conflict or incompatibility between the two rights (see para. 56).

70In my view, the Ireland case does not provide support for the proposition advanced by the defendants, namely that the Nanfan Treaty reserves or extends hunting rights to the defendants on private property (see 1536412 Ontario Ltd. v. Haudenosaunee Confederacy Chiefs Council, 2008 CarswellOnt 3419 (S.C.J.) at para.14).

71I also note that the statement attributed to former Minister Bentley does not assist the defendants. It is difficult to see how a statement attributed to a Minister in a newspaper article can constitute an authoritative basis for the proposition advanced by the defendants in this case. Moreover, the statement refers only to hunting on lands of the Hamilton Conservation Authority. There is no evidence that that any of the Enbridge Maintenance Dig sites are on Hamilton Conservation Authority lands.

72It is not necessary for me to determine, in the context of this motion, whether the defendant’s exercise of what they say are their treaty rights on private property may be upheld on some basis other than the decision in Ireland or the statement attributed to the former Minister. The defendants’ claim to relevant interests or rights may be advanced by appropriate parties or groups having the requisite standing through lawful avenues. The defendants’ resort to unlawful self-help should not, however, be countenanced for the reasons stated by the Supreme Court of Canada in Behn.

73The balance of convenience therefore favours the granting of the injunction sought by Enbridge.

Disposition

74On the basis of the foregoing, I find that Enbridge is entitled to an order for an interlocutory injunction restraining the defendants from:

(a) entering or occupying the Enbridge preventative Maintenance Dig sites that are located on the properties listed at Appendix A to the Notice of Motion (“Affected Maintenance Dig Sites”)

(b) blockading, or in any way interfering with, Enbridge’s access to the Affected Maintenance Dig Sites; and

(c) preventing Enbridge’s ingress to or egress from the Affected Maintenance Dig Sites

75It is further ordered that the Sheriff shall do all things reasonably able to be done, with such force and assistance as is required in the circumstances, to prevent or stop breaches of the injunction set forth above, and in the event that the Sheriff believes that the execution of such injunction may give rise to a breach of the peace, he or she may require a police officer or officers to accompany him or her in the execution of the injunction.

76It is further ordered that the injunctive relief granted above is without prejudice to Enbridge’s right to request police response and assistance in respect of breaches of the peace including interference with Affected Maintenance Dig Sites.

Costs

77The parties are urged to agree upon costs. If they are unable to do so, the plaintiff may make written submissions as to costs by 4:30 p.m. on April 3, 2017. The defendants shall have until 4:30 p.m. on April 21, 2017 to deliver responding submissions. The submissions shall not exceed four double-spaced typed pages. Such written submissions are to be forwarded to me at my chambers at 85 Frederick Street, 7th Floor, Kitchener, Ontario N2H 0A7. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs as between themselves.

D.A. Broad, J.