COURT FILE NO.: CV-20-00635938

DATE: 20200207

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 and A. Basmadjian, for the Plaintiff/Moving Parties

HEARD: February 7, 2020

ENDORSEMENT

[1] The Plaintiff moves without notice for an interim injunction pursuant to s.101 of the Courts of Justice Act.

[2] At around 3:00 p.m. on February 6, 2020, a group of approximately 20 individuals blocked the main line of the CN Railway Company at mile post 209 at the Wyman Road Crossing near Tyendinaga Township between Kingston and Belleville. The blockage of the track has been continuous since 5:15 February 6, 2020. This has prevented the movement of freight and passenger trains on the main lines.

[3] The Plaintiff submitted the affidavit of Michael Knorz sworn February 7, 2020. Mr. Knorz is employed by the CN Police as a constable. He has been at the blockade site since 7:00 a.m. February 7, 2020. In his affidavit, he states that the blockade is being carried out by individuals who are protesting in solidarity with the Wet’suwet’en in B.C. In particular, the protesters take the position that the RCMP inappropriately or unfairly raided the anti pipeline camp at Wet’suwet’en territory in B.C. This is confirmed in various media reports.

[4] Mr. Knorz stated that the protestors have a snowplow/dump truck near or on the railway tracks. There is one large couch and multiple vehicles at or near the crossing. There are individuals on the tracks.

Test for an Injunction

[5] Generally, an interim injunction will be granted where:

(1) The moving party has demonstrated a serious question to be tried;

(2) The moving party would suffer irreparable harm if the motion was refused; and

(3) The balance of convenience favours the granting of the injunction: Ref: RJR-MacDonald Inc. v. Canada 1994 CanLII 117 (SCC), [1994] 1 SCR 311, at paras 83-85.

[6] It is my view that the test for granting an injunction applies in this case. This is not a situation where the granting of an injunction could have an adverse impact on aboriginal or treaty rights. The blockade is not a land or labour dispute. It is a political protest involving the actions of the RCMP in B.C. and is not a dispute that relates to CN.

[7] The situation is similar to circumstances considered by Justice Brown in Canadian National Railway v. John Doe, 2013 ONSC 115. In that case, CN was seeking an injunction with respect to a blockade at the same section of the tracks as in this case. Justice Brown noted that the blockade was not with respect to a land dispute but instead was a political process. He stated as follows:

…it was straightforward political protest, pure and simple. Just as 15 persons from some other group would have no right to stand in the middle of the main line tracks blocking rail traffic in order to espouse a political cause close to their hearts, neither do 15 persons from a First Nation. 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 motion for an interlocutory injunction: at para. 14.

Serious Issue to be Tried

[8] I am satisfied there is a serious issue to be tried in this case. Several protestors have trespassed on the property of CN and have tortiously interfered with the use of the main rail line.

[9] As stated in CN Railway v. Plain, 2012 ONSC 7356:

…the evidence leaves no doubt that CN has a very strong case that the defendant protesters are trespassing on its property and preventing CN from using that property as it has been for many decades: at para. 26.

CN has Suffered Irreparable Harm

[10] The blockade of the main rail line has disrupted the flow of freight and passenger traffic. The Plaintiff submitted the affidavit of Josh Ellis, the person at CN responsible for Rail Traffic Control. He stated tat the blockade delayed approximately 13 VIA passenger trains, impacting approximately 2,587 passengers. An additional 7,662 passengers are expected to be travelling on VIA rail on February 7, 2020, and 3,996 on February 8, 2020. In terms of freight, Mr. Ellis stated that the value of commodities in trains utilizing the main rail line is approximately $350M per day.

[11] As a result of the blockade, there will be delays in the transportation of important materials. Even after clearing the blockade, there will be backlogs which must be cleared.

[12] I am satisfied that the blockade has caused irreparable harm to CN, and its customers who use the main line.

Balance of Convenience

[13] In determining the balance of convenience, I must consider the interests of the public and the affect the decision may have in the public interest.

[14] CN recognizes the important public service that can be achieved through peaceful and lawful protests. In this case, however, the protest is on private CN property. The protesters have trespassed on CN’s property and have dissipated CN’s business.

[15] As stated in CN Railway v. John Doe, 2013 ONSC 115:

…expressive conduct by lawful means enjoys strong protection in our system of governance and law, expressive conduct by unlawful means does not. No one can seriously suggest that a person can block freight and passenger traffic on one of the main arteries of our economy and then cloak himself with protection by asserting freedom of expression: at para. 11

[16] I am satisfied that the Balance of Convenience favours the granting of the injunction.

[17] The Plaintiff has provided an undertaking as to damages. Mr. Ellis, in his affidavit at para. 23 states that CN indemnifies to abide by any order concerning damages the court may make if it ultimately appears that the granting of the order has caused damage to the Defendants for which CN ought to compensate the Defendants.

[18] The Plaintiff brings this motion without notice. Counsel for the Plaintiff advised that notice was not provided because there was uncertainty as to who the individuals are who are protesting.

[19] As the motion is brought without notice, the Plaintiff is entitled to an interim injunction of no more that 10 days. The Plaintiff is ordered to return to court on February 14, 2020, at 10 a.m. for the hearing of a motion to continue the order.

[20] Order to go in accordance with the draft Order filed and signed by me.

Chalmers J.

Date: February 7, 2020