Court File and Parties

Court File No.: CV-20-00635938 Date: 2020-02-20 Superior Court of Justice - Ontario

Re: Canadian National Railway Company And: John Doe, Jane Doe and Persons Unknown

Before: Mr. Justice Chalmers

Counsel: M. Sampson, for the Plaintiff

Heard: February 14, 2020

Endorsement

[1] On February 7, 2020, at the request of the Plaintiff, CN Railway Company, I granted an ex parte interim injunction. Pursuant to the order, the Defendants and any and all persons having knowledge of the Order were restrained and enjoined from continuing a blockade of the CN main rail line at the Wyman Road Crossing at Mile Point 209.

[2] Despite my order, the blockade at the Wyman Crossing has continued.

[3] Michael Knorz, a constable with the CN Police submitted an affidavit sworn February 12, 2020. He deposed that my order was served on February 8, 2020 when it was audibly and loudly ready by Taylor Dunning, a licenced private investigator. He also deposed that on February 11, 2020, the Sheriff attended at the Wyman Road Crossing with the OPP and read aloud my order. The order was posted at the Wyman Road Crossing.

[4] Although the Order was brought to the attention of the protestors, they failed to comply with the Order. In fact, the blockade has grown in size and scope. Mr. Knorz stated in his affidavit that a camper trailer, portable toilet and tent are now at the site. As of February 10, 2020, there were approximately 50 protestors. There continues to be a large dump truck with a snowplough parked adjacent to the tracks.

[5] The protesters have shown a complete lack of respect for the Court Order. Mr. Knorz, in his affidavit, stated that the injunction order was burned on the tracks in view of the media and police. The protestors have stated their intention to continue the blockade, despite the injunction.

[6] It appears that the OPP has not taken steps to ensure the Order is enforced. As stated above, the Sheriff and the OPP read the Order to the protesters on February 4, 2020. Mr. Knorz, in his affidavit, referred to an article in the “Real People’s Media” dated February 10, 2020 which stated that after the injunction order was burned on the tracks in front of the police, the police returned to their vehicles and left the area.

[7] As a result of the continuing blockade, rail service for both passengers and freight continues to be disrupted along the main rail line between Toronto and Montreal. Josh Ellis, a Senior Manager at CN, in his affidavit sworn February 11, 2020, deposed that the blockade continues to have a significant impact on the CN’s operations and its customers. He states that as of 9:33 p.m. on February 10, 2020, 33 freight trains have been stopped in various CN yards and 21 trains have been stopped on the main line as a result of the blockade. According to Mr. Ellis, approximately $1,750,000,000 in commodities have been delayed. In addition, as of 9:33 p.m. on February 10, 2020, approximately 144 VIA passenger trains have been cancelled which has affected over 20,000 passengers. Additional freight and passenger traffic has been cancelled since February 10, 2020.

[8] Counsel for CN advised at today’s motion that CN Rail is in the process of an orderly shutdown of its rail network in Eastern Canada as a result of the protests.

[9] Mr. Ellis, in his affidavit, states that the following harm will be caused to CN:

(a) Delays in delivery of bulk commodities and goods including chemicals and hazardous commodities, perishable food products, auto parts, water purification, jet fuel, lumber and forest products and manufactured goods; (b) Increased yard congestion; (c) Disruption of motive power (engine) cycles from a normal balanced use; (d) Loss of revenue to CN and increased costs to CN customers; and (e) Suspension of passenger traffic.

[10] In addition, the shut down of its rail network in Eastern Canada will likely result in layoffs for its employees.

[11] In addition to the economic losses, Mr. Knorz stated in his affidavit that the blockade raises safety issues due to the number of vehicles and individuals at or near the railway tracks.

[12] CN Rail moves today for a continuation of the injunction order until such time that it is varied or vacated by the court. In addition, CN Rail is seeking an order to examine OPP officers in order to obtain the identity of the protesters in breach of the interim order. Once the individuals in breach of the interim order are identified, CN Rail seeks an order setting a return date for a motion to find the individuals in breach of the interim order, in contempt.

A. Service of the Motion

[13] CN Rail served the motion record on Robert Maracle on February 12, 2020 as evidenced by the Affidavit of Service of Marina Sampson sworn February 13, 2020. Service was by e-mail. In her e-mail, Ms. Sampson asked that Mr. Maracle bring the materials to the attention of any individuals who are involved in the demonstration at the Wyman Road Crossing.

[14] Mr. Maracle does not hold any leadership position with the protest. He was apparently at the site when the order was read. The order included Ms. Sampson’s name as counsel for CN and he contacted her. According to Ms. Sampson, he stated that he had some association with the protesters and knew of the situation. He stated that he was no longer involved in the protest.

[15] Ms. Sampson did not know whether Mr. Maracle provided a copy of the motion material to any other protester.

[16] Service of the motion material in this case is problematic. The identity of the protesters is not known to CN Rail. Some of the protesters had their faces covered and could not be identified before today. CN Rail has also been proceeding cautiously with respect to its interaction with the protesters on the advice of the OPP.

[17] Ms. Sampson argues that R. 16.08 of the Rules of Civil Procedure validating of service applies in this case. The order was read to the protesters on February 8, 2020 and again on February 11, 2020. The order was posted at the site. The order specifically provided that the motion to continue the injunction was scheduled for February 14, 2020 at 10 a.m. As a result, notice of the return date came to the attention of the Defendants.

[18] I am satisfied that CN Rail has taken the steps necessary to bring the return date of the motion to continue the injunction to the attention of the protesters. In the case of Mr. Maracle, the motion record was served on him. I therefore make an order validating service of the motion record.

[19] Although today’s motion was brought to the attention of the protesters, no one attended in opposition to the motion.

B. Test for Injunction Relief

[20] As I noted in my endorsement dated February 7, 2020, the blockade is being carried out by individuals who are protesting in solidarity with the Wet’suwet’en territory in B.C. This is confirmed in various media reports including the website “Real People’s Media” which has an article titled, “Tyendinaga Mohawks say no trains will pass through their lands until the RCMP gets out of Wet’suwet’en territory”.

[21] To carry out the blockade, the protesters have moved vehicles and other items onto the rail crossing. The rail line and right of way is the property of CN Rail.

[22] Counsel for CN argues that the protesters targeted CN Rail to achieve the maximum effect to bring attention to their protest. The protest does not involve CN Rail, but CN is being used as a pawn to bring their protest to the public.

[23] Counsel acknowledges that a group has the right to protest and express its displeasure, but the right does not extend to trespassing and blockading a main rail line.

[24] Based on the evidence, I am satisfied that CN Rail has established that there is a serious issue to be tried. CN Rail has a very strong case that the Defendant protesters are trespassing on its property and have tortiously interfered with CN Rail’s economic relations in preventing CN Rail’s lawful use of its main rail line.

[25] CN Rail has also established that the unlawful blockade has caused and will continue to cause irreparable harm to CN, its customers and employees. As stated above, the blockade has disrupted the flow of freight and passenger rail traffic. Commodities with a value of $1.75B and 20,000 passengers have been affected as of February 10, 2020. As stated by Mr. Ellis in his affidavit sworn February 11, 2020, the scale and extent of these losses would be “extremely difficult, if not impossible, to quantify in monetary terms.”

[26] I am also satisfied that the balance of convenience favours CN and the continuation of the injunction. The protesters have unlawfully trespassed on CN’s property and have restricted CN’s lawful use of the rail lines.

[27] The Defendants are protesting the activities of the RCMP in B.C. The protest does not have anything to do with CN Rail. There is no valid right being exercised by the protesters which affects the balance of convenience. This is not a case in which the protests involve treaty or constitutionally protected rights are asserted in which case the court would encourage consultation and negotiations: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation et al, 2008 ONCA 534, 91 O.R. (3d) 1 (ONCA) at para. 44.

[28] The circumstances of this case are similar to those considered by Justice D. Brown in CN Railway v. Plain et al, 2012 ONSC 7356 in which he states:

I remain of the view, expressed in my injunction reasons, that the blockade of the spur line undertaken by the protesters does not involve a claim to aboriginal title or aboriginal rights connected with the spur line. Instead, the protesters simply have chosen the spur line as a convenient place at which the exert political pressure on various governments based upon their displeasure with recent federal legislation and in support of a protest ongoing in Ottawa by Chief Spence. Simply put, they have chosen the spur line crossing as their Hyde Park and intend to express their views from that location regardless of the harm caused to those who use and rely on the spur line. For this reason, I would not regard the aboriginal identity of the protesters or their message as immunizing them from the standard balance of convenience analysis on a continuation motion; at para. 31.

[29] I am satisfied that the test for granting an injunction as set out in RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 SCR 311, has been satisfied. I will continue my injunction order until such time as it is varied or discharged by further order of this court.

C. Motion to Examine OPP Officers to Determine Identity of the Protesters in Breach of the Interim Order

[30] As stated above, the interim order I made on February 7, 2020 has not been complied with. The protesters remain on the tracks. The protesters showed their disrespect for the order and this court by burning a copy of the order in the presence of the media and the OPP.

[31] I am concerned that the police have failed to take steps to enforce the injunction order when it became clear that the protesters would not abide by the order. The OPP reportedly left the site after witnessing the burning of the order. No steps have been taken by the OPP to arrest the protesters or take any other action to ensure that the order is complied with.

[32] Unfortunately, this approach by the OPP is not new. In CN Rail v. Plain, supra, Justice Brown was also faced with the situation that the local police authorities would not take any active steps to enforce the order. As stated by Justice Brown:

With all due respect to the Sarnia Police, local police agencies cannot ignore judicial orders under the guise of contemplating how best to use their tactical discretion. Such an approach would have the practical effect of neutering court orders. It is not the purpose of a court order simply to initiate talks or consultations between the police and those whom the court has found to have breached the law. A court order is not one amongst several chips to be played in an ongoing contest between the police and transgressors of legal rights. On the contrary, a court order is intended to initiate the process of bringing unlawful conduct to an end in a short period of time so that the harm which the court has found to be irreparable is brought to an end: at para. 38.

[33] No explanation for the police inaction is in evidence before me. There are no assurances provided by the police that it will enforce the continuation order.

[34] CN Rail is not seeking an enforcement order compelling the police to ensure compliance with the continuation order. The only relief sought is to compel the OPP to provide the identity of the protesters who are in breach of the interim order. It seems to me that if the police have the names of the persons in breach of the order, the police are obligated to charge those persons. If the police are not prepared to do so, at a minimum, the police should provide the names to CN Rail so it can pursue a civil remedy.

[35] The party seeking leave to examine a witness on a pending motion must satisfy the court that the witness has possibly relevant evidence to the underlying proceeding and the witness is in a position to offer relevant evidence: Seelster Farms Inc. v. Ontario, 2017 ONSC 4756.

[36] I am satisfied that the OPP has possibly relevant evidence, namely the identity of the persons in breach of the interim injunction order. I therefore grant leave pursuant to R. 39.03(4) of the Rules of Civil Procedure to examine OPP Staff Sergeant Watkins in order to determine the identity of persons in breach of the interim order.

[37] Ms. Sampson advised that Mr. Diana, senior counsel at the Ministry of Community Safety and Correctional Services has consented to Staff Sergeant Watkins testifying as to the identity of persons who are in breach of the order. CN Rail is content to proceed with the testimony of Staff Sergeant Watkins today but reserves its right to examine D.C. Richer and Inspector Semple, if necessary.

[38] Staff Sergeant Watkins gave evidence under oath on the motion. He identified the persons who were on the tracks/right of way after the order was communicated to the protesters at 3:43 p.m. on February 8, 2020. The list is attached to the Order as Ex. 1.

[39] CN Rail has stated that its intention is to proceed with a motion to find the individuals identified by Staff Sergeant Watkins in contempt of the interim injunction order.

[40] I have some concerns that even if a contempt order is made, that the police will take steps to enforce the order. However, even if the police will not enforce the order, there is value in proceeding with the motion. The Plaintiff may proceed with the motion in Toronto where the proceedings were commenced. I schedule the motion for March 24, 2020. I remain seized.

[41] Order to go in accordance with the draft order filed as amended and signed by me.

Chalmers J. Date: February 20, 2020