Court File and Parties

Court File No.: CV 19-152 Date: 2019-07-10 Ontario Superior Court of Justice

Between: Hydro One Networks Inc., Plaintiff – and – The Haudenosaunee Confederacy Chiefs Council, Haudenosaunee Development Institute, Todd Williams, Colin Martin, Rhonda Martin, Hayley Doxtator, Jill Styres, John Styres, Matt Myke, Tom Keefer, Colleen Davis, Kyle Harris, Bobby Jo Johnson, Joleen Johnson, Gary Johnson, John Doe, Jane Doe, and persons unknown, Defendants

Counsel: Christopher Bredt and Maureen Doherty, for the Plaintiff Mark Strychar-Bodnar for the Haudenosaunee Development Institute Aaron Detlor, Amicus No one appearing for the other Defendants

Heard: July 8, 2019

Before: The Honourable Madam Justice L. Sheard

Reasons for Decision

[1] Hydro One Networks Inc. ("Hydro One") moves for an interim and Interlocutory injunction against the defendants. The motion was brought on short notice and, as a result, there were no responding materials before the court.

[2] The purpose of injunction is to allow the plaintiff to complete the new transmission facilities in the Niagara region known as the Niagara Reinforcement Project ("NRP"). Described in the simplest of terms, the NRP involved the installation of 21 transformer station towers, the erection of two 3-pole structures and air brake switch which connect it to the existing 115 kV transmission line at Caledonia Junction, which would act as an emergency supply to the Dunnville Transformer station.

[3] Following 15 years' of negotiations and consultations and meetings, in August 2018 an agreement was reached among Hydro One and the neighbouring First Nations who were in closest in proximity to the subject lands. The Six Nations of the Grand River ("Six Nations") and the Mississaugas of the Credit First Nation ("Mississaugas"). A partnership agreement ( the "Partnership Agreement") was signed between Hydro One and the Six Nations of the Grand River Development Corp. ("Six Nations Dev. Corp."), a wholly owned subsidiary of the Six Nations and Mississaugas, for the completion of the NRP.

[4] In May, 2018, Six Nations and Six Nations Dev. Corp. entered into a contract with the Ontario Ministry of Energy pursuant to which the Ministry agreed to set aside up to 300 megawatts of renewable energy capacity for the Six Nations Dev. Corp., (the "Set Aside") provided the NRP was "in-service" by September 1, 2019 (the "Completion Date").

[5] Work on the NRP resumed in the summer of 2018 pursuant to a joint venture between AECON Group Inc. and Six Nations Development Corp. ("A6N"). As of the date of this motion, most of the work had been completed. In particular, the 21 transformer station towers and other structures have been erected and already support four power lines.

[6] Hydro One has been trying since January 2019 to complete the NRP. The remaining work includes inspecting the existing towers and related structures, repairing any damage, if required, and stringing a fifth transmission line described as:

8.5 km of a 230kV transmission line from Tower 248 (east of the Caledonia Transformer Station near Grand River) to Tower 285 (northwest of the Caledonia Transformer Station), representing approximately 10% of the NRP.

[7] The defendants and others whose identities are unknown to the plaintiff (identified as John Doe and Jane Doe in the statement of claim) have interfered with and prevented the plaintiff from completing the NRP.

Hearing on July 8, 2019

[8] At the return date of the motion, the defendant, Haudenosaunee Development Institute ("HDI"), was represented by counsel. HDI asked for an adjournment to allow HDI to file responding materials. The defendant, The Haudenosaunee Confederacy Chiefs Council ("HCCC") was not represented by counsel but lawyer, Aaron Detlor, was gowned and advised the court that he sought to act as amicus and to assist the HCCC, which does not attorn to Canadian jurisdiction and does not retain counsel.

[9] With the consent of Hydro One and HDI, a letter addressed to "Your Honour", dated July 8, 2019, signed by Leroy Hill Hohahes, and under HCCC seal, was read into the court record in the Cayuga language (the "July 8 Letter"). The reader declined to speak from the witness box but was permitted to speak from the body of the courtroom. A copy of the July 8 Letter in the Cayuga language was marked as Exhibit 1 on the motion and the English version of the July 8 Letter was marked as Exhibit 2. For obvious reasons, reference here is made to Exhibit 2. Among other things, the July 8 Letter states that:

i) the HCCC is the only governmental body capable of engaging with the Crown to address matters that relate to lands and treaties and the collective rights of the Haudenosaunee;

ii) the Haudenosaunee maintain a sovereign status that is separate and distinct from Canada, and have authority to determine uses of their land;

iii) pursuant to the Haudenosaunee's inherent jurisdiction, the HCCC has issued a "cease and desist order against any further work being undertaken on the NRP where the Crown has not engaged in good faith with the HCCC";

iv) the Haudenosaunee understand that Hydro One has attempted to "bypass a good faith and engagement with the HCCC" by seeking an injunction and thereby preventing the application of Haudenosaunee laws and jurisdiction; and

v) inviting the addressee of the July 8 Letter to attend Council on July 27, 2019 "to discuss a means by which we can move forward together to maintain the peace and resolve this manner" (sic)

[10] The motion was well-attended by interested parties including a number of the individual defendants who identified themselves: Todd Williams, Colin Martin, Rhonda Martin, Jaqueline House, Colleen Davis, Joleen Bomberry and Gary Johnson. None of these individuals sought to participate in the motion. While every named defendant may not have been personally served, based on the numbers present in the courtroom, I have confidence that this motion was brought to the attention of the defendants.

Adjournment Request

[11] As mentioned above, the only represented defendant was HDI. However, based on what was said by Mr. Detlor and what was set out in the July 8 Letter, I conclude that the HCCC will not attorn to the jurisdiction of this court or participate in these proceedings. I reach a similar conclusion with respect to the individual defendants who identified themselves to the court on July 8, 2019.

[12] HDI asked for an adjournment to file responding materials and to conduct cross-examinations. Hydro One and HDI agreed that the motion would be returnable on July 15, 2019 and on the following timetable for the delivery of responding and reply materials as well as cross-examinations:

a) HDI shall deliver its responding materials by 5 p.m. on July 10, 2019;

b) Hydro One shall deliver its reply materials by 5 p.m. on July 11, 2019;

c) any cross-examinations shall take place on July 12 and 13, 2019; and

d) transcripts and updated Facta shall be filed no later than the morning of July 15, 2019. Electronic copies may also be filed through the Brantford trial co-ordinator.

[13] Notwithstanding the above agreement reached with respect to the adjournment and return date of the motion, Hydro One asked that an interim and interrogatory injunction be granted immediately. Counsel for HDI submitted that, in essence, Hydro One was seeking an ex parte motion: the statement of claim was issued on Friday, July 5, 2019 and the motion materials were also served on or after that date.

[14] As will be explained below, I am satisfied that the interim and interlocutory injunction sought by Hydro One ought to be granted. On July 9, 2019, I issued an interim interlocutory injunction pursuant to the draft order submitted by Hydro One, with an additional paragraph requested by HDI, with reasons to follow. These are the reasons.

Background

[15] As set out above, the only evidence before me on this motion comes from the plaintiff. For the purposes of the interim order, I rely on and accept the following facts as set out in Hydro One's Factum:

a) since at least October of 2004, Hydro One has been attempting to complete the NRP;

b) the NRP was put on hold in 2006 because of a land claim dispute between First Nations and the Province of Ontario leaving a section of the transmission line near Caledonia to be completed and preventing it from being put in-service;

c) in the past 15 years, Hydro One has held numerous meetings, discussions and negotiations with various stakeholders, including several indigenous groups in the surrounding communities, including the Six Nations, which is legally recognized by the Government of Canada pursuant to the Indian Act and represents all six member First Nations of the Haudenosaunee Confederacy, and is governed by an elected band council. Hydro One has also had several meetings with the HCCC, which represents itself as a traditional representative body of hereditary leaders of the Haudenosaunee, but is not legally recognized under the Indian Act;

d) in August 2018, a partnership agreement was entered into between the Six Nations Dev. Corp. and Hydro One; (the "Partnership Agreement").

e) the NRP was restarted in the summer of 2018 with planned completion scheduled for summer 2019. Between August and December 2018, Hydro One continued to correspond with representatives from the HCCC. Hydro One offered to meet with HCCC and HDI in September and October 2018. The meetings were unilaterally cancelled by HDI and HCCC;

f) on January 17, 2019 representatives of the HCCC blocked the access roads and the NRP construction site and demanded to meet with Hydro One leaders. The HCCC representatives advised that if the demands were not met they would cause the NRP work to be stopped immediately. Between January 17 and 21, 2019, there were discussions among Hydro One, A6N and HCCC;

g) on January 21, 2019 individuals representing HCCC arrived at the NRP site in three vehicles and advised that they were there to enforce a "cease and desist order" issued by the HCCC. The NRP team was told that their options were either to pack up and leave the site or the HCCC representatives would call in more people;

h) fearing for their safety, the A6N stopped work and departed, leaving the electrical lines at Tower 285 of the NRP in an unsafe condition;

i) on January 22, 2019 at a meeting between HCCC and Hydro One, HCCC stated that work on the NRP could only continue if an "Engagement Agreement" was executed between HCCC and Hydro One. Without that, HCCC stated that they would seek support from other Haudenosaunee allies, whose behaviour they might not be able to control, giving rise to a risk that the Hydro towers might come down;

j) the Engagement Agreement contemplated Hydro One paying HDI $250,000 "for the purposes of negotiating a final agreement". At a meeting between Hydro One and members of HDI, HDI presented a draft memorandum of understanding that contemplated the HCCC acquiring a partnership interest in the NRP and other existing Hydro One transmission assets adjacent to the NRP, to the exclusion of the Six Nations and the Mississaugas;

k) on February 11, 2019 Tower 285 was completed;

l) on February 16, 2019 the Six Nations Dev. Corp. wrote to HCCC advising that recent events threatened the community's financial development and outlined the repercussions to the community of ongoing interference with the NRP;

m) on April 1, 2019 Hydro One delivered a letter to HCCC formally rejecting their offer to partner on the NRP to the exclusion of the Six Nations and the Mississaugas;

n) throughout April 2019, efforts were made to communicate to the affected communities and to the HCCC the benefits of the NRP and negative impact of interference with it. On April 29, 2019 HCCC protesters again advised that the "cease and desist" order would be enforced;

o) since April 29, 2019 there have been discussions among HCCC, A6N, and Six Nations Development Corp. to discuss potential resolutions to HCCC's concerns about the NRP. A meeting between Hydro One and members of the HCCC took place as recently as June 27, 2019. No resolution was achieved;

p) on July 4, 2019, Hydro One employees and A6N employees attended at the NRP site to attempt to conduct the site assessment. HCCC representatives again advised that they would prevent any work from being completed and further that "things are going to get ugly" if A6N and Hydro One attempt to conduct the site assessment. Fearing for their safety, Hydro One and A6N crews left the NRP site.

[16] Hydro One has met and exchanged correspondence with the HCCC respecting the NRP and other Hydro One projects in an effort to address HCCC's concerns. Community consultations respecting the Partnership Agreement and related agreements were led by representatives of the Six Nations in conjunction with Hydro One. The HCCC declined invitations to participate in discussions.

[17] The Partnership Agreement contemplated that the NRP would be a mutually beneficial venture that would result in significant local employment, training and investments in community infrastructure. The Six Nations Dev. Corp. and the Mississaugas would participate as investors and partners through a limited partnership structure with a substantial equity interest.

[18] The Ministry Agreement requires the Six Nations Dev. Corp. to work with Hydro One and other relevant partners and entities and make commercially reasonable efforts to complete the NRP on or before September 1, 2019.

Positions of the Parties

[19] Based on the submissions made by the plaintiff, HDI, and what is set out in the July 8 Letter, I conclude that the HCCC do not take issue with the work that Hydro One seeks to complete. Rather, I understand the reason behind HCCC's interference with Hydro One's completion of the NRP to be that Hydro One did not seek permission for it from the HCCC.

[20] There is an ongoing dispute between the HCCC and the Six Nations as to which of them has authority to represent the Haudenosaunee people. HCCC asserts that it, and not Six Nations, has that authority. Implicit in this jurisdictional conflict is a dispute over which of these entities should have the benefit or control over the financial benefits of the NRP.

[21] Hydro One submits that the interests of the HCCC in its dispute with the Six Nations will not be prejudiced in any way if the NRP work is completed. Furthermore, it is open to the HCCC (or any of the defendants) to pursue a determination of which of the HCCC and Six Nations or Mississaugas has authority to represent the Haudenosaunee with respect to the NRP, by way of a counterclaim in this action.

[22] Also, based on submissions, I understand that the work remaining will not materially affect or change the use or appearance of the existing landscape; subject to inspection and completion of any needed maintenance or repair of the hydro pylons/towers, all that remains to be done is to "string" a fifth transmission line.

The Law

[23] Section 101 of the Courts of Justice Act[^1] gives the court authority to grant an interlocutory injunction when it appears to the judge of the court to be just or convenient to do so. Rule 40.01[^2] governs the procedure for seeking an injunction,

[24] In RJR-MacDonald v. Canada (Attorney General)^3, the Supreme Court of Canada established this three-part test for an interlocutory injunction:

i) Is there a serious issue to be tried?

ii) Will the moving party suffer irreparable harm if an injunction is refused?

iii) Does the balance of convenience favour granting an injunction pending a trial, i.e. which of the parties would suffer greater harm from the granting or refusal to grant the relief sought pending a decision on the merits?

[25] Given the nature of this dispute, Hydro One addresses a fourth issue: Does Hydro One have a duty to consult with the HCCC?

[26] Respecting the latter question, Hydro One submits that where constitutionally protected aboriginal rights are asserted, the duty to consult, negotiate and accommodate and to take every effort to obtain a negotiated or legislated resolution, applies only to the Crown or an agent of the Crown. As Hydro One is a private entity, it has no such duty.

[27] This issue was considered in Enbridge Pipelines Inc. v. Williams, 2017 ONSC 1642 ("Enbridge"). Broad J. held that the question of whether the Crown has complied with its duty to consult and accommodate is not relevant to the court's exercise of its discretion when the injunction is sought by a private entity with an interest in land (at paras. 33, 34). Based on the evidence before me, I make a similar finding: Hydro One owes no duty to consult and the actions of the Crown are irrelevant to this motion.

[28] Hydro One submits that even if such duty were to exist, it did consult with the defendants both when it applied for approval from the Ontario Energy Board ("OEB"), and in the years that followed the granting of that approval.

[29] In its lengthy affidavit materials, Hydro One documents extensive and ongoing consultations with the defendants respecting the NRP up to as recently as June and July of this year. Based on the evidence before me, for the purposes of this interim order, I accept that, although it had no such obligation, Hydro One did consult with the defendants and made efforts to obtain a negotiated resolution.

[30] Hydro One submits that the three-part RJR test has been applied to enjoin blockades and protests arising from the assertion of Aboriginal rights and relies on the decisions made in John Voortman & Associates Ltd. v. Haudenosaunee Confederacy Chiefs Council (2009), 2009 CarswellOnt 1753; 1536412 Ontario Ltd. v. Haudenosaunee Confederacy Chiefs Council (2008), 2008CarswellOnt 3419 ("1536412 Ontario Ltd."); Brantford (City) v. Montour, 2010 ONSC 6253; and Enbridge.

[31] I find those cases to have application to this case and conclude that it is appropriate to apply the RJR test to the case before me. I note that the facts here are similar to those in Enbridge, in which the moving party sought an injunction to allow it to maintain and repair existing pipelines, on lands over which Enbridge had a right-of-way, which involved matters of public interest and safety.

1. Has Hydro One established a strong Prima face Case?

[32] Hydro One claims against the defendants in trespass, obstruction, intimidation, interference with contractual relations, and interference with economic relations.

[33] As stated by Broad J., in Enbridge (para. 43), the elements of the tort of trespass to land are summarized in Calandra v. Parasco 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.[^4]

[34] Hydro One submits, and its evidence allows me to find, which I do, that:

i) the NRP is located on land over which Hydro One has a statutory or common law easement for transmission and distribution purposes;

ii) the defendants, or one or more of them, have trespassed on January 17 and 21, April 29, and July 4, 2019; and

iii) that the trespasses have interfered with Hydro One's right to use and enjoy the NRP lands.

[35] Particularly compelling evidence of the trespasses and interference with Hydro One's rights is found in the words and body language observed in the videotaped evidence found at Exhibits "A" and "C" to the affidavit of Sohail Nejat, sworn July 5, 2019[^5].

[36] I find that Hydro One and those employed by or on behalf of Hydro One were intimidated and fearful of the trespassers who were purporting to enforce the HCCC's "cease and desist" order and that Hydro One was thereby prevented from completing the NRP.

[37] Based on the evidence before me, I conclude that Hydro One has made out a strong case on the merits and met the first of the three-part RJR test.

2. Will Hydro Suffer Irreparable Harm if an Injunction is Refused?

[38] To satisfy part two of the RJR test, Hydro One must establish that it will suffer irreparable harm if the injunction is refused. The court in RJR describes irreparable harm as "harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other".

[39] Hydro One submits that Hydro One, Six Nations Dev. Corp, A6N, the community and ratepayers, and employees, contractors and the protesters themselves will all suffer irreparable harm if an injunction is not granted and the interference with Hydro One's property rights is allowed to continue, thereby preventing the completion of the NRP.

[40] In his text, Injunctions and Specific Performance[^6], Justice Sharpe writes that "where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured... Where property rights are concerned, it is almost always that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy." That principle was applied in Enbridge, in 1536412 Ontario Ltd., and in Voortman.

[41] The evidence before me supports a finding, which I make, that the construction of the NRP has been entirely suspended by reason of the defendants' trespasses by reason of which Hydro One, the Six Nations Dev. Corp. and the Mississaugas are all at risk of breaching contractual obligations.

[42] At paragraph 83 of its factum, Hydro One identifies further non-compensable irreparable harm that it, as well as the Six Nations Dev. Corp., A6N, the community and ratepayers, and employees, contractors and the protesters themselves may suffer if the trespass continues and completion of the NRP is halted as a result.

i) System Impacts:

a. while construction on the NRP is suspended, the time and energy and millions of dollars in non-recoverable costs that have been incurred in developing and constructing the NRP cannot be recouped;

b. the construction schedule contains many tasks and critical path items that are co-dependent. One delay can disrupt the entire schedule and prejudicially affect NRP's construction. A6N has invoked force majeure and will not return to work or instruct its subcontractor to return to work until the situation with HCCC is resolved;

c. the NRP is needed for safe, secure and reliable operation of the transmission system, in a cost-effective manner. The NRP will allow for more generation to remain connected to the transmission grid to provide adequate supply of electricity to power Ontario homes and businesses;

d. the NRP is a project in the public interest (and was approved by the OEB as such) that is designed to improve power supply to customers in the surrounding area. If the NRP is not completed in a timely manner, it will have a significant impact on power in the Niagara to Burlington/Hamilton/Middleport region. The Niagara to Burlington/Hamilton/Middleport transmission corridor is critical for moving power into the province; and

e. the NRP is also expected to provide additional value to transmission ratepayers by reducing line losses on the QEW interface by between 10,500 MWh and 22,750 MWh on an annual basis (roughly corresponding to $0.8-1.8M annually at energy cost of $75/MWh).

ii) Safety and Customer Service Impacts:

a. NRP shares a transmission corridor with energized high voltage power lines. There is therefore a significant safety risk associated with attendance on the NRP site, or any other Hydro One property in the general vicinity, by unauthorized trespassers, especially given the risk of physical blockades, violence and/or confrontations;

b. the presence of unauthorized people on the NRP site creates an imminent risk of physical harm to the protestors, Hydro One employees, contractors, agents, and assets, and any other individuals within proximity of the NRP. Any direct physical contact with the two energized 500kV and four energized 230kV transmission lines risk potentially serious injury or fatality by electrocution. These risks increase with the presence of unauthorized vehicles and other equipment with the presence of protesters;

c. the shared corridor creates a risk of irreparable damage to property, including the risk of widespread service interruptions and power outages to residential and small and large industrial customers of Hydro One. Any interference with the lines on the shared corridor could result in loss of circuits. There is also a potential of fire accompanying the protest and a fire under a transmission line can cause smoke and soot to accumulate on insulators, which can cause flashover and result in multiple circuit outages; and

d. the 230kV circuits in the area provide power to major load customers such as Imperial Oil Nanticoke and the Caledonia Norfolk Sub-Region. The 230kV circuits also provide green energy to the GTA via Middleport TS from Grand Renewable CGS, Sandusk CGS (105MW), and Summerhaven CGS. Loss of either the 500kV or 230kV circuits would impact reliability and result in outages to residential customers of Hydro One's distributor customers, in addition to Hydro One's major load customers.

iii) Community Impacts

a. the Partnership Agreement and the Set Aside agreement contemplate completion of the NRP by September 1, 2019. The set aside of up to 300 megawatts of renewable energy capacity for Six Nations Dev. Corp. for. new projects on Six Nations lands is contingent on the NRP being in-service by the Completion Date. The Set Aside agreement represents a significant benefit to the Six Nations Dev. Corp. and the Six Nations community, which could be lost if there is any further delay. The value of the Set Aside to Six Nations Dev. Corp. and the Six Nations community is greater than $50 million.

b. The impact on the Six Nations community (the largest population of all First Nations in Canada, and one of the 88 communities directly connected to the Hydro One distribution grid) if the NRP is not completed is significant and cannot be compensated by an eventual damages award against HCCC/HDI. Losses in addition to those associated with the Set Aside agreement include the:

1. financial impact of demobilization on A6N of $500,000+;

2. loss of profits to A6N of an additional $500,000+;

3. loss of jobs of 30 workers from the Six Nations community when A6N was forced to demobilize;

4. erosion of A6N (and Hydro One) relationship with its contractor, Thirau, highly specialized skilled sub-contractors required to complete the Outstanding Work;

5. loss of reputation of A6N's ability to complete utility work in areas sensitive to First Nations, which will affect future employment opportunities and profit margins of the Six Nations Dev. Corp., which in turn impacts the Six Nations community;

6. Six Nations Economic Development Trust ("EDT"), funded by projects like the NRP, in turn funds community projects in the Six Nations pursuant to a program administered by the EDT; loss of profits and benefits related to the Set Aside agreement will result in losses to community programs of the same amount;

7. ripple effects on Six Nations Dev. Corp. is operations in coming years, with further ripple effects on Six Nations community: loss of future employment opportunities, profit margins and capital investments in community-owned infrastructure; and

8. reputation of Six Nations in general will suffer, with the perception that the political landscape makes it "too risky" to do business with them.

[43] Hydro One submits that the impacts described above may also affect the Mississaugas' community in a similar manner.

iv) Hydro One and Customer Financial Impacts

a. In addition to the increased costs to ratepayers referred to above, the continued delay of the NRP may also result in Hydro One passing on further increased costs to the ratepayers of Ontario. The NRP is financed by borrowing and the costs of the project cannot be passed on to ratepayers until the NRP is complete and deemed a useful asset. Additional interest on that borrowing is charged at the rate of approximately $500,000 a month. Hydro One will need to seek approval from the OEB in order to pass additional charges on to ratepayers. Furthermore, there is a risk that the OEB could refuse to allow any overage to be passed on to ratepayers.

v) Hydro One Reputational Impacts:

a. the NRP delays affect the reputation of Hydro One, A6N and Six Nations Dev. Corp. which are not quantifiable in damages. Hydro One has a long history of building and supporting relationships with First Nation and Metis communities across Ontario. Hydro One directly serves 88 First Nation communities, bringing power to homes and businesses. Hydro One has worked to build strong and positive relationships with Indigenous communities to ensure they are a trusted partner. Should the NRP not materialize, it will significantly impact these relationships as community members may not see Hydro One as a trusted partner. If the NRP line cannot move forward, other potential partnerships and future development of any upcoming new transmission lines may be at risk. Hydro One's relationship with Six Nations, Six Nations Dev. Corp., and the Mississaugas have been and continue to be significantly affected by the NRP delays.

vi) Irreparable harm arising because the Defendants are unable to satisfy an award of damages:

a. Given the potential monetary losses, Hydro One may suffer irreparable harm because it cannot collect damages from the defendants who lack the financial means to satisfy the damage award;

b. the defendants are either individuals or unincorporated associations without any known significant financial means. The court, in Brantford (City) v. Montour, determined that some of the defendants named in this case, including HDI, who Arrell, J. found took its instructions from the HCCC had "a very limited ability to pay damages" if the plaintiff was successful at trial.[^7]

3. Does the Balance of Convenience Favour the Granting of the Injunction?

[44] On the third part of the RJR test, the court must undertake "a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision of the merits". (at para. 67).

[45] In determining whether to grant or refuse the interlocutory relief sought, the court must consider the harm that might be suffered by the parties and where the public interest lies.

[46] The court seeks to balance the risk of harm to the defendant if the interlocutory relief is granted before the merits of the dispute are explored against the risk that the plaintiff's rights will be significantly impaired while awaiting trial.[^8]

[47] Based on the evidence filed and submissions made, the plaintiff's case is strong and the potential damages are enormous and thus the risk of harm to the plaintiff is great if the interlocutory injunction is refused. While it is one of many factors, I give significant weight to the need to complete the NRP by the Completion Date or risk losing an amount in excess of $50 million.

[48] The potential economic loss to the underlying Aboriginal communities is also a significant consideration; if the benefits of the NRP are lost, the HCCC will also lose. If the benefits of the NRP are preserved by its completion by the Completion Date, the HCCC can potentially benefit, should it establish its entitlement to speak for the Haudenosaunee.

[49] Finally, although this dispute involves the right of private corporations, in fact, there is a public interest at stake in ensuring the proper transmission of electrical power on which all the people of the province depend.

Conclusion

[50] Having considered and applied the relevant factors and authorities, I find that Hydro One is entitled to the interim interlocutory relief sought on its motion before me on July 8, 2019.

Madam Justice L. Sheard

Released: July 10, 2019

[^1]: R.S.O 1990, c. C-43, s.101 [^2]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^3]: 1994 CanLII 117 (SCC), [1994] 1S.C.R. 311, at para. 43 [^4]: 1998 CarswellOnt 4406 (Gen. Div.) at para. 13 [^5]: Hydro One Supplementary Motion Record dated July 5, 2019 [^6]: (Thomson Reuters Limited, 2017) s. 4.10 [^7]: 2010 ONSC 6253 at paras. 9 and 62 [^8]: Bell Canada v. Rogers Communications Inc., 2009 CarswellOnt 4536 at para. 47, quoting from the Sharpe text.