2022 ONSC 2006

Court File and Parties

Court File No.: CV-22-610 Date: 20220331 Ontario Superior Court of Justice

Between: CRH CANADA GROUP INC., Plaintiff – and – ONTARIO AGGREGATE TRUCKING ASSOCIATION, JAGROOP SINGH PANGLI, AJITPAL SINGH BHATHAL, BALJIT SINGH MANN, TINKA BHULLAR, MOHAN SINGH, AMANDEEP SINGH, AMRITPAL SINGH, RAVINDER SINGH, ONTARIO DUMPTRUCK ASSOCIATION, DARSHAN SINGH BANAIT, BALJEET SINGH GHARIAL, INDERJEET SINGH GOSAL, HARDEEP SINGH HEHAR, JASKARAN SINGH HUNDAL, SUKHPALJIT SINGH KANG, DHANANJAY MEHTA, BOB PUNIA Defendants -and- NELSON AGGEGATES Intervenor

Counsel: Sahil Shoor, for the Plaintiff No One Appearing for the Defendants M. Kemerer, for the Intervenor

Heard: March 25, 2022

Reasons for Decision

J.E. Mills J.

[1] I granted an interlocutory injunction at the request of the plaintiff (“CRH”) and the intervenor (“Nelson”) on March 25, 2022 (the “Order”), indicating written reasons would follow. These are those reasons.

[2] The Courts of Justice Act grants a judge the authority to order an interlocutory injunction or mandatory order where it appears to be just or convenient to do so. It is well settled that to obtain an interlocutory injunction, one must demonstrate there is a serious issue to be tried, that irreparable harm will result if the relief is not granted, and that the balance of convenience favours the moving party. RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 at paras. 77-80.

Serious Issue to be Tried

[3] If, after a limited review of the merits, the claim is not frivolous or vexatious, the test for a serious issue to be tried will be met. The threshold is low, and the analysis to be done is extremely limited. Common sense should prevail. Ibid., paras. 44-56, 78.

[4] CRH and Nelson have shown there is a serious issue to be tried in nuisance and the unlawful interference with private property rights. Harassment, threats of violence and property damage are all significant and very real ongoing concerns.

[5] The Ontario Aggregate Trucking Association (“OATA”) and the Ontario Dump Truck Association (“ODTA”) have called upon their members to block access to the business facilities of CRH and Nelson. This action is being taken to compel an industry wide increase in the haulage rates paid to aggregate truckers and to impose a fuel surcharge due to the significant increase in fuel costs over the last several months. The protestors confirmed to representatives of CRH that they do not in fact have an issue with the company, but rather are establishing blockades at CRH sites to apply pressure to the companies which purchase aggregates in Ontario. Those companies or their brokers pay the truckers to haul the aggregates from CRH sites. CRH companies do have contracts with some truck drivers, but none of them are involved in the protests. CRH and its companies have no contractual relationship and do no business with OATA or ODTA.

[6] None of the defendants attended the hearing of this motion, nor did they file any responding materials, despite having been provided proper notice. There is no evidence to contradict that provided by CRH and Nelson. The extensive affidavit evidence filed on this motion is unchallenged. The affidavits include numerous videos and social media posts taken from online accounts identified as belonging to or associated with OATA, OADA, and some of the individual defendants. Several of the videos and social media posts contained shocking and disturbing images of violence.

[7] The protestors have blocked public roads and impeded access to private property. They have threatened and intimidated drivers, and they have caused significant damage by throwing rocks through windows. At least one vehicle had several tires flattened. The defendants are not engaged in a lawful nor peaceful protest, as would be protected by the Charter of Rights and Freedoms.

[8] I have no hesitation in finding there is a serious issue to be tried with respect to nuisance and the intentional interference with private property rights. The first element of the RJR-MacDonald test has been met.

Irreparable Harm

[9] In assessing irreparable harm, it is the nature of the harm suffered which must be considered, as opposed to the magnitude of the harm. “It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other.” RJR-MacDonald Inc., at para. 59.

[10] Where individual property rights are affected by blocking access, irreparable harm is presumed and granting an injunction is the appropriate remedy. Sobeys v. UFCW, Local 175, 2013 ONSC 1207, at para. 38; Whyte v. Binczak, 2019 ONSC 4068 at paras. 29 – 32. By blocking vehicular access to and egress from the CRH and Nelson sites, the defendants are causing irreparable harm.

[11] Dufferin Aggregates is one of the CRH companies and is a leading supplier of aggregate materials to the construction industry in Ontario. The protestors effectively blockaded the roads leading to several Dufferin Aggregates sites by parking their trucks on the side of the road and forcing all traffic to stop. They impeded the ingress to and egress from several Dufferin Aggregate sites, most notably the Milton Quarry.

[12] Truck traffic to the Milton Quarry varies over the year, with a peak in the summer months. On an average day in March, Dufferin Aggregates expects between 150 and 200 trucks to pass through the Quarry. After the blockade was set up on March 14, 2022, only 31 aggregate trucks were able to access the Quarry. With each passing day of the blockade and as the threats and intimidation continued, there was an estimated 95% decline in aggregate trucks entering the Milton Quarry. Dufferin Aggregates is the largest supplier of aggregates to the other CRH companies. The economic impact of the blockade was therefore suffered across all business lines of the CRH group of companies.

[13] Nelson has suffered a similar decline in business since blockades were set up at its sites. They have also incurred significant cost in having security measures implemented to ensure the safety of the employees and truckers who attend at their sites.

[14] I accept the evidence as demonstrating there has been a significant economic impact on CRH and Nelson due to the blockades created by the protestors, many of whom are not named in this litigation. The individual defendants listed in the Notice of Action filed by CRH are identified on government filings as the officers and directors of OATA and ODTA, both being not for profit corporations. OATA and ODTA are not labour union organizations. The protestors are not engaged in a lawful strike. Collecting damages from the protestors will be difficult, if not impossible. This too amounts to irreparable harm. APMA v. Boak, 2022 ONSC 1001, at paras. 42 and 45.

Balance of Convenience

[15] The balance of convenience analysis requires me to assess which of the parties will suffer greater harm if an injunction is granted or if it is refused pending a decision on the merits of the claim. I have no hesitation in finding that the balance of convenience weighs strongly in favour of CRH and Nelson.

[16] Both moving parties are sympathetic to the recent economic pressures on the haulage trucking industry. CRH has increased the rates it pays to the truckers with whom it has contracted to provide haulage. None of those truckers are involved in the blockades.

[17] Both moving parties respect the defendants’ rights to protest and to seek higher haulage rates, provided their efforts are done peacefully and in a manner that does not block access to and egress from private property.

[18] Having filed no materials and having made no submissions, the defendants have not asserted any violation of their rights under the Charter of Rights and Freedoms. I acknowledge that freedom of expression as guaranteed by s. 2(b) of the Charter, and the right of peaceful assembly and association are fundamental to a free and democratic society. They are rights that must always be protected. They are not however fundamental rights which permit a person to unlawfully trample on the legal rights of others. Ibid., at para. 51. That is effectively what is being done by the defendants and the protestors in blockading the CRH and Nelson sites. The legal rights of CRH and Nelson are being trampled as are the numerous truckers who are trying to access the CRH and Nelson sites.

[19] The safety, security, and business interests of CRH and Nelson, their employees and the truckers who attend at their sites far outweigh the rights of the defendants to express their views on the haulage rates paid to truckers.

Conclusion

[20] CRH and Nelson have met the test for an injunction to prohibit the defendants and anyone with notice of the Order from blockading or in any way impeding access to or egress from the sites listed in Schedule “A” to the Order.

[21] CRH has provided a written undertaking for damages. Counsel for Nelson confirmed on the record that his client will also provide a written undertaking for damages. It shall be filed within 5 days of the release of these Reasons.

[22] It is important to add that the Order does not prevent the defendants from lawfully expressing their views and delivering their messages, provided their efforts in this regard do not promote violence and do not interfere with the access to or egress from the CRH and Nelson sites.

J.E. Mills Electronic signature of J.E. Mills J. Released: March 31, 2022