Court File and Parties
COURT FILE NO.: CV-23-694346
DATE: 2023/02/16
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Haudenosaunee Development Institute, Applicant/Moving Party
AND
Metrolinx, Respondent
BEFORE: The Honourable Justice Charles T. Hackland
COUNSEL: Tim Gilbert, Thomas Dumigan, Jack MacDonald, Jonathan Martin, for the Applicant Sarit Batner, Byron Shaw, Sam Rogers, Bonnie Greenaway, Chris Puskas, for the Respondent
HEARD: February 10, 2023 (by zoom videoconference)
ENDORSEMENT (Application for an Interlocutory Injunction)
The Haudenosaunee Development Institute (HDI) seeks an interlocutory injunction against Metrolinx to prevent the removal of 11 trees on Metrolinx property. Metrolinx’s property is located next to Osgoode Hall. The property was expropriated to facilitate the construction of the Osgoode subway station on the new Ontario Line being constructed in Toronto. This motion was heard by me on an emergency basis along with a similar motion brought by The Law Society of Ontario. Due to the urgency of the matter, I rendered my decision following the conclusion of argument, dismissing both motions, with reasons to follow. I have released a separate endorsement on the Law Society motion: Law Society of Ontario v. Metrolinx, 2023 ONSC 1169. These are my reasons in the present matter.
I conclude that the balance of convenience does not favour granting an injunction. In the Law Society matter, the underlying issue was the appropriateness of the Osgoode Hall site for the location of the new subway station, given the heritage concerns surrounding that historic property. In the present case, the underlying issue is the exercise of Indigenous rights by HDI in this major public works project and certain conflicts between the parties which have recently evolved.
The Trees
In each case the relief sought has focused on the pending removal of certain trees, which is a preliminary step in the site preparation (the Stage II archeological work). This work must be completed before Metrolinx turns over the property to the construction consortium on May1, 2023, for the commencement of excavation.
Metrolinx seeks to remove 11 trees. They are situated on the Metrolinx property beside the Osgoode Hall site and are close to the location of the subway entrance where the keyhole excavation will take place. Once completed, an above ground structure (the headhouse) will be built as an entrance to the new subway. The Heritage Minister, and subsequently the Minister of Transportation, approved the removal of these trees as part of the expropriation process.
Contrary to the statements in HDI’s factum and affidavit materials, these trees are not 200 years old. Rather they are between 50-100 years old. As described by the Curator of the Law Society of Ontario, most of the trees in front of Osgoode were planted after 1965:
The trees are the dominant feature of the grounds and have been the greatest source of garden expenses for the Law Society. Contrary to popular belief, few if any of the trees go back further than World War Two, and there has been a lot of turnover over the years. Life is hard for city trees. Many of our trees, including the lindens, honey locusts, and flowering crab apples, date from 1965, and as time goes on, the tree cover will continue to change. Our current replacement policy favours native species such as the red oak, the Eastern white pine, the American beech and the hop-hornbeam.
Metrolinx is obligated, under the various approvals it has obtained, to replace these trees as soon as the subway construction is completed.
Background
HDI’s affiant Aaron Detlor, a lawyer and “delegate” of the Haudenosaunee Confederacy Chiefs Council (HCCC) outlined his views and description of the current working relationship HDI has with Metrolinx in the Ontario Line project. He explains HCCC is the representative government of the Haudenosaunee, comprised of Chiefs selected by Clan Mothers. HDI was created in 2006 by HCCC to provide proponents of development a central point of contact to engage with the HCCC in respect of proposed development projects. Further, the HDI is meant to facilitate access to resources so proper engagement may occur.
HDI has developed an “engagement process” with Metrolinx in relation to the construction of the Ontario Line. The Ontario Line is a new 15.6 km subway which will have 15 new stations and connections to existing stations. Normally HDI attempts to negotiate a “comprehensive engagement agreement” between entities such as Metrolinx and HDI. They have not negotiated such an agreement at this point, but they have worked out several agreements with Metrolinx to facilitate their engagement in the Ontario Line project.
In particular, HDI and Metrolinx have negotiated and executed a series of engagement-related agreements, between June 2022 and January 2023, including (as described in Mr. Detlor’s words):
“a. A general monitoring agreement to standardize HDI’s archaeological and environmental monitoring on site for Metrolinx’s ongoing and future projects (to be used for every project where Metrolinx had to meet obligations to the Haudenosaunee through its archaeological and environmental processes). This was executed on July 12, 2022.
b. A capacity-funding agreement to facilitate HDI’s negotiation with Metrolinx in respect of a global framework/relationship agreement—effectively a negotiations budget, given the significant disparity in bargaining power between Metrolinx and the Haudenosaunee. An agreement was reached on or about September 7, 2022.
c. A triage agreement to facilitate the sharing of information about projects between HDI and Metrolinx. This was executed on or about November 4, 2022.”
Unfortunately, conflicts have developed. The most serious has been a dispute between the parties about paying HDI’s invoices under the capacity-funding agreement. This dispute involves significant amounts of money. Solutions have been discussed such as retaining an independent accountant.
On an encouraging note, Mr. Detlor advises that once the triage agreement was in force, Metrolinx and HDI met weekly to discuss various Metrolinx projects (existing and planned) and their impact on Haudenosaunee rights and interests. HDI and Metrolinx continued to meet under the triage agreement until December 23, 2022.
After December 23, 2022, Mr. Detlor accuses Metrolinx of acting in bad faith in not resolving their funding disputes and in not continuing to meet under the triage agreement.
Mr. Detlor makes the following observation at the conclusion of his affidavit:
I believe HDI and Metrolinx are very close to executing a satisfactory agreement that (a) ensures adequate engagement with the Haudenosaunee and (b) enables Metrolinx to proceed with its work at Osgoode Hall in a manner consistent with its treaty obligations to the Haudenosaunee, including under the Silver Covenant Chain, and consistent with the Honour of the Crown.
Based on my interactions and negotiations with Metrolinx to date, I believe the parties can execute an agreement within weeks, rather than months and in a manner that is consistent with the Silver Covenant Chain, the Two Row Wampum, and Haudenosaunee rights and interests.
This observation suggests to the court that HDI is seeking a renewed or better engagement relationship with Metrolinx and there is no need for injunctive relief concerning the 11 trees on the Metrolinx property.
Metrolinx has engaged extensively with HDI and other Indigenous groups and has provided several reports and studies. Metrolinx points out that it works not only with HDI but also with Six Nations of the Grand River (SNGR), the elected leadership of Six Nations. HDI and SNGR have each engaged in monitoring archaeology work relating to the Ontario Line.
Mr. Detlor has attempted to negotiate compensation for tree removal. Metrolinx’s affiant produced extensive documentation to substantiate this. Metrolinx has taken the position that it is not prepared to provide compensation for tree removal because Metrolinx will replace the trees following the construction. Metrolinx suggests, appropriately in my view, even if compensation were appropriate, it would have to be divided with the elected leadership of Six Nations and the other First Nations whose territory includes these lands.
The Metrolinx affiant also points out that Mr. Detlor unlawfully stopped work and damaged fencing at the Moss Park and the Osgoode sites, harassed Metrolinx employees and attempted to intimidate one of the Metrolinx archeologists. Mr. Detlor responds he was exercising his treaty rights in obstructing work on these two properties, and he has apologized to the Metrolinx employee who felt he was being threatened.
Balance of Convenience and Irreparable Harm
I do not feel it necessary to discuss issues pertaining to HDI’s conduct because I view those considerations as inflammatory and unnecessary. As the Ontario line project advances, HDI and other Indigenous organizations will need to continue to engage with Metrolinx and this can best be encouraged, not by granting injunctions, but by encouraging respectful discussion, negotiation, and mediation where required.
I find that there is no irreparable harm to HDI in any way connected with the tree removal. Mr. Detlor put forward a variety of financial concerns about compensation owing by Metrolinx to HDI under their various engagement agreements. Irreparable harm refers to losses which are not capable of being compensated by monetary damages. It is open to HDI to advance such monetary claims against Metrolinx as they consider appropriate but there is no justification for an injunction. Similarly, if Mr. Detlor wishes to continue to press HDI’s claims for compensation for removal of trees, this would be a matter which, if entitlement could be established, would be compensated in damages. The 11 trees which Metrolinx will remove from its property to facilitate the subway construction are not special in any way and will be replaced by Metrolinx at the conclusion of construction.
HDI seeks declaratory relief as to the scope of its rights to consult (or engage as Mr. Detlor puts it) and these issues are not being decided on this injunction motion. I will observe, however, that Mr. Detlor’s apparent belief that HDI is required to consent before tree removal can occur is not supported by the jurisprudence.
The balance of convenience also weighs against granting an injunction. An injunction would likely delay the archeological investigations which Metrolinx needs to complete in order to hand over the site to the construction conglomerate by May 1, 2023. Failure to meet that deadline could result in heavy financial penalties to Metrolinx and to taxpayers. There would be an irreparable harm to the public interest in granting an injunction. Finally, the removal of the 11 trees would not interfere with any Indigenous right to hunt on the Osgoode Hall property, an activity that simply does not occur for safety and other reasons.
I think it is also significant the elected leadership of the Haudenosaunee and other First Nations that have been engaged on the Ontario line are not opposing the work proceeding at Osgoode Hall. Similarly, the City of Toronto is not opposing the tree removal.
Lastly, an injunction is not a cause of action or a stand alone remedy. If there is no underlying cause of action, there is no legal basis to grant an injunction. The relief sought on an injunction must be connected to a cause of action in the underlying proceeding: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 14.05(3)(g). Here, the injunctive relief claimed by HDI is to enjoin Metrolinx from tree removal, until it “adequately engages” with HDI in respect of the Ontario Line. There is no duty to “adequately engage”. HDI appears to suggest that adequate engagement entails the right to consent or decline to consent to the removal of trees and to be entitled to receive compensation for the removal of trees. Whether these are rights recognized by law may be addressed when the claims herein for declaratory relief are heard. Accordingly, I find there is no legal basis for granting an injunction.
Disposition
HDI’s motion for an injunction is dismissed.
If Metrolinx wishes to seek costs, it shall provide a concise written submission to the court within 30 days of the release of this endorsement and the Applicant, HDI shall respond within 30 days of receiving Metrolinx’s submission.
Justice Charles T. Hackland
Date: February 16, 2023
COURT FILE NO.: CV-23-694346
DATE: 2023/02/16
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Haudenosaunee Development Institute, Applicant/Moving Party
AND
Metrolinx, Respondent
COUNSEL: Tim Gilbert, Thomas Dumigan, Jack MacDonald, Jonathan Martin, for the Applicant Sarit Batner, Byron Shaw, Sam Rogers, Bonnie Greenaway, Chris Puskas, for the Respondent
ENDORSEMENT
(APPLICATION FOR AN INTERLOCUTORY INJUNCTION)
Justice Charles T. Hackland
Released: February 16, 2023