OSHAWA COURT FILE NO.: CV-23-332 DATE: 20230314 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: GENERAL MOTORS OF CANADA COMPANY Plaintiff – and – CHIDIEBUBE OSITA-ADUBASIM Defendant
Counsel: Nigel McKechnie and Justin Choy for the Plaintiff No one appearing for the Defendant
HEARD: March 14, 2023
REASONS FOR DECISION
HEALEY J.
Relief Sought on the Motion
[1] The moving party, General Motors of Canada (“GM”), brings this motion for:
(a) a permanent and/or interlocutory injunction pursuant to s. 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43, preventing the defendant from:
(i) trespassing at the plaintiff’s premises, located at 900 Park Road South, Oshawa or any other of the plaintiff’s premises or third-party sites or premises; collectively referred to as the “Premises;”
(ii) harassing, intimidating or assaulting or threatening to harass, intimidate, assault or harm the plaintiff’s employees, servants, agents, suppliers, contractors, customers or visitors at the Premises;
(iii) causing or threatening to cause mischief at the Premises; and,
(iv) causing or threatening to cause damage to property at the Premises.
(b) an Order that the defendant shall not intimidate or harass, assault or threaten or attempt to intimidate or harass, assault or threaten any of the plaintiff’s employees, servants, agents, customers, suppliers, visitors and/or contractors, attempting to use, access or exit the Premises; and
(c) an Order that the Durham Regional Police Service shall do all things necessary to assist the Sheriff in preventing or stopping breaches of any court Order(s).
[2] Although the notice of motion requests costs, counsel advised that his client is not pursuing costs.
Service of the Motion
[3] The defendant did not file a responding record, nor did he appear or send an agent on his behalf. An affidavit sworn March 9, 2023 confirms that on that day the defendant was sent the Zoom details for today’s court appearance.
[4] The original motion record dated February 22, 2023 was served on the defendant on February 28, 2023 by email in accordance with the Order of Vallee J. dated March 3, 2023. As such, the original motion record relied on by the plaintiff for the motion has been properly served.
[5] Additionally, the original motion record, factum, Order of Vallee J. and the supplementary motion record dated March 2, 2023 were served on the defendant by courier, effective March 6, 2023. This is effective service for today’s proceeding pursuant to r. 37.07(6) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[6] As this motion for injunctive relief was brought on proper notice to the defendant, the period of the injunction is not limited to ten days: r. 40.02(1).
The Evidence
[7] Jeff Scratch is the Manager, Global Security of the plaintiff, GM. He has provided the primary evidence for this motion.
[8] Mr. Scratch has deposed that the defendant is an individual who was employed by The Staffing Connection and placed to work at GM’s facility located at 900 Park Rd. South in Oshawa. This facility assembles light- and heavy-duty pick-up trucks and is known as GM’s Oshawa Assembly Plant (“OAP”). The Staffing Connection provides staff to TFT Global Inc., which in turn provides material handling services to GM.
[9] On September 26, 2022, the defendant’s employment with The Staffing Connection was terminated due to complaints of sexual harassment. Consequently, The Staffing Connection removed the defendant’s key card and revoked permission to enter OAP.
[10] Since the date of his dismissal the defendant has gained access, or attempted to gain access, to OAP on eleven occasions. Mr. Scratch’s affidavit and supplementary affidavit detail these events and the harms caused by the defendant.
[11] Building C is located on the east side of OAP and can be accessed through Gate 4. During shift changes hundreds of GM employees and personnel enter and leave Building C through Gate 4. This high-traffic period is referred to as “free-flow”. While OAP is equipped with key card access and turnstiles, OAP opens its gates, including Gate 4, during free- flow. It is during these high traffic free-flows that the defendant attempts to gain access to OAP through Gate 4 and evade security measures. The evidence shows that he arrives dressed in safety gear, as though ready to work.
[12] Following the defendant’s termination of employment, and without permission or authority, he has gained access or attempted to gain access to OAP on December 4 and 7, 2022, January 9, 15 and 17, 2023, and February 5, 7, 10, 13, 17 and 23, 2023. GM has documented each of these incidents; the incident reports are part of its evidence. The dates of his attendances show a pattern of increasing frequency.
[13] GM engages the services of Securitas, a security services provider, at OAP. On each occasion of the defendant’s trespassing, Securitas guards have been involved in preventing his access or escorting him from the premises.
[14] The Staffing Connection delivered a Notice of Trespass to the defendant on December 7, 2022, advising him not to contact, trespass or enter OAP.
[15] On January 23, and again on February 7, 2023, GM delivered the defendant a Notice of Trespass and Site Ban. A registered receipt and delivery confirmation indicates that these documents were received. The defendant has ignored both notices.
[16] On each occasion, the Durham Regional Police Service (“DRPS”) have been called. It was not until the fifth incident on January 17, 2023 that DRPS issued a citation for trespass to the defendant. DRPS issued a second citation for trespass after the sixth incident on February 5, 2023. These citations have not deterred the defendant.
[17] On February 7, 2023, DRPS responded to a call placed by the defendant, when he requested that the police attend Gate 4. DRPS alerted GM and escorted the defendant from GM’s property. DRPS indicated at that time that no further action beyond issuing a citation for trespass could be taken by them without a restraining order, or if the defendant committed an offence such as uttering threats or engaging in an assault. As detailed below, an assault against a security guard had already occurred by then.
[18] The first time that the defendant gained entry to OAC through Gate 4 on December 7, 2022, he was looking for his former TFT Global Inc. Manager, Mr. Lee Power. An affidavit from Mark Atkinson, an Area Leader of TFT Global Inc, details this event. On that day Mr. Atkinson received a telephone call from an employee who holds the position of dock co-ordinator, who stated that a man had cornered her in the kitchen, intruded into her personal space, and had demanded to see Mr. Power. When Mr. Atkinson arrived in the kitchen he found the female distressed and in tears. The defendant was still in the kitchen, seemingly angry and agitated, and was demanding to address Mr. Power about the termination of his employment and pay. The defendant was told that Mr. Power was not working that shift. Together Mr. Atkinson and the Plant Manager, Steve Hutchison, escorted the defendant out of OAP, at which time Mr. Hutchison informed Mr. Atkinson of the individual’s identity.
[19] When asked to leave during the second incident, the defendant responded that he owns GM.
[20] During the fifth time that the defendant attempted entry, he evaded the security guards for several minutes. When confronted and restrained by security he pushed one of the guards, resulting in a minor cut to the guard’s hand. The DRPS was unhelpful in ensuring that the incident was properly investigated, even when Mr. Scratch intervened to see if a statement from the guard could be taken. Charges arising from this incident have never been laid.
[21] During the sixth incident the defendant was again attempting entry to locate Mr. Power. The security guards were required to physically restrain the defendant against a turnstile until the DRPS arrived, an event that is captured by GM’s video footage and forms part of the evidence.
[22] During the eighth incident, when blocked by the guards as he was again attempting to enter, he told one of the guards a number of times that he was going to “vanish” him. The defendant said that he owned the building and was not going to leave. The incident report notes that he was visually upset and acting in a violent manner, appearing ready to act violently against the guards or TFT employees at any moment. Eventually he left after being told numerous times that he was trespassing.
[23] During the ninth incident the security guards filmed the defendant’s behaviour. That video is also evidence on this motion. The defendant questioned why he could not enter his “own building” and insisted that he worked there. He uttered various profanities directed toward the guards and told them that he was going to show them “where I’m allowed and you’re not going to say sh* about it”. Some of his comments are nonsensical and his demeanor is agitated. While not physically aggressive, his tone of voice and the content of his utterances is threatening and hostile. He eventually left the premises before the police arrived, as was often the case.
[24] In the eleventh and latest incident on February 23, 2023, the defendant attempt to gain access but was stopped by security. In attempting to gain access, he spat on one of the guards. The DRPS pursued the defendant as he fled, and they issued another citation. Thereafter, the victim and another security guard who was on scene went to the DRPS detachment to provide a statement about the incident and were advised that the defendant would be charged with assault. However, the evidence contained in an email from the DRPS to Mr. Scratch dated February 27, 2023 indicates that that has not happened; the assault is still under investigation. Further, there were no release conditions available to prevent the defendant from gaining access to OAP, as the incident led only to a court summons under the Trespass to Property Act, R.S.O. 1990, c. T.21. It was anticipated by the writer from DRPS that the defendant’s conduct may be dealt with by way of a pre-court mental health diversion, which would typically result in him being required to complete a “program in relation to the offence committed”.
[25] Since January 19, 2023, as a direct result of the defendant’s conduct, GM assigned four additional security guards during scheduled shift changes. The cost of one additional guard is approximately $63 per hour.
[26] Christopher Thomson, GM Site HR and LR Director, has advised Mr. Scratch that GM employees have expressed concerns verbally to their safety representatives regarding their personal safety, including the security guards, who are not armed.
[27] Mr. Scratch notes that GM has an obligation under the Occupational Health and Safety Act, R.S.O. 1990 c. O.1 to take all reasonable steps to ensure the safety of its workforce.
[28] GM has provided an undertaking to abide by any order concerning damages that the court may make if the granting of the order sought causes damage to the defendant for which it is found that GM should compensate him.
The Law
[29] The authority for this court to grant an interlocutory injunction is found in s. 101 of the Courts of Justice Act, which may be granted “where it appears to a judge of the court to be just or convenient to do so” and may include such terms as are considered just.
[30] The test for injunctive relief is well established. The test that the moving party must meet, as set out in R.J.R.-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at p. 334, is that:
(a) There is a serious issue to be tried;
(b) The moving party will suffer irreparable harm, which it cannot be adequately compensated by damages; and,
(c) The balance of convenience favours the granting of the injunction.
Serious Issue to Be Tried
[31] The serious issue standard is a low threshold that only requires the court to make a preliminary assessment of the merits of the underlying claim: R.J.R. MacDonald, at pp. 337-338.
[32] In this case, the defendant is engaging in tortious and unlawful behaviour through his repeated trespass, assaults, harassment, and threatening behaviour. He has created an atmosphere in which GM employees and the security guards working on site have felt violated and unsafe. As such, I agree with the submission of GM’s lawyers that these facts satisfy the higher strong prima facie threshold needed for mandatory injunctions. Even without a criminal conviction, on this motion it is not necessary for the court to make findings that either the criminal or civil standard for an assault has been proven. It is sufficient that the evidence provides a basis for injunctive relief.
[33] There is no question that GM is required to take steps to meet its obligations arising from the Occupational Health and Safety Act to provide a safe work environment for its employees and third-party contractors. This includes protection from violence and harassment: Peel Standard Condominium Corporation v. Jakacki, 2020 ONSC 3697, at para. 35.
[34] It is also clear that GM has attempted to enlist the aid of the DRPS, whose responses have not resolved the problem. None of the actions taken by GM or the police have stopped the defendant from his persistent behaviour, which he has shown can escalate to overt aggression.
[35] I am satisfied that the underlying action is neither vexatious nor frivolous - there is a serious issue to be tried and GM’s evidence presents a strong prima facie case.
Irreparable Harm
[36] Irreparable harm is readily established where the conduct is tortious or unlawful, as it is here: Ideal Railings Ltd. v. Laborers’ International Union of North America, 2013 ONSC 701, at paras. 57- 58, citing Unilux Boiler Corp. et. al. v. Fraser et al, [2005] O.J. No. 2410, at paras. 25- 28.
[37] At p. 341 of R.J.R. MacDonald, the Court held that “irreparable” refers to the nature of the harm suffered rather than its magnitude. 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.
[38] There is precedent in this court for granting an interim injunction at a workplace facility, where picketing was occurring, that involved violence and threats amounting to the creation of irreparable harm: Alumicor Limited v. United Steel, Paper and Forestry, Rubber, Manufacturing, 2011 ONSC 1707; Bank-Strox Renovation Inc. v. Laborers’ International Union of North America, Local 183, 2020 ONSC 4911. Certainly, the actual incidents of aggression, along with the threat to “vanish” the guard, is more than enough to meet this threshold.
[39] The defendant has so far been undeterred, and there is currently no legal instrument in place to thwart his behaviour. The ongoing risk associated with his behaviour is a repetition of assaults, threats, physical injury and trespass, all of which are non-compensable. Even the risk of physical injury that has not yet occurred is sufficient to constitute irreparable harm: Photo Engravers & Electrotypers Ltd. v. Fell, [1989] O.J. No. 1442, at para. 12; Ivaco Rolling Mills (2004) LP v. United Steel Workers of America, Local 8794, at paras. 22-25. Irreparable harm also includes psychological harm that is more than transient or trifling, of the sort about which GM’s employees and third-party contractors have now complained: Ottawa Carleton Standard v. Friend, 2019 ONSC 3899, at para. 122.
[40] I also take into account that this court has no evidence from the defendant that he has any ability to pay damages, even if those damages were appropriately compensable by money.
[41] The moving party has established that without an injunction it will suffer irreparable harm which cannot be adequately compensated by damages.
Balance of Convenience
[42] The balance of convenience overwhelmingly weighs in favour of GM. In Fleming Door Products Ltd. v. Hazell at para. 21 the court stated “[w]here a moving party seeks to enjoin illegal acts, the “balance of convenience” favours the moving party…”.
[43] By contrast, there is absolutely no prejudice to the defendant, who is trespassing and otherwise breaking the law, and who has no legitimate reason to attend OAC or go anywhere else on GM’s Premises.
[44] There is no compelling public interest that might prevent an injunction from being granted. To the contrary, it is in the best interest of the community to restrain illegal and harmful conduct to ensure that private property rights and statutes that are designed to protect the public are upheld and enforced by the court.
[45] For the above reasons, this court finds that the moving party has met the test for an interlocutory injunction.
[46] It is appropriate to include as a term of this order a requirement for the DRPS to take all necessary steps to either assist the Sheriff or act independently to prevent or stop breaches of this court’s order. According to Mr. Scratch’s affidavit, the DRPS advised GM that they would be able to take more action if GM obtained a restraining order. It is the intention of the court that this order provide the police with all necessary authority to protect GM’s property, employees and third-party contractors from the defendant before his behaviour further escalates.
[47] This court orders that the relief sought in the notice of motion is granted, and that the injunction shall remain in effect until and unless otherwise varied or terminated by the court. The draft order, with amendments as directed by the court, shall issue.
Madam Justice S.E. Healey
Released: March 14, 2023