COURT FILE NO.: CV-23-710128
DATE: 20231204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Plaintiff
– and –
JOHN DOE, JANE DOE and PERSONS UNKNOWN
Defendants
Marina E. Sampson, Meredith Bacal & Mark A. Glynn, for the Plaintiff
HEARD: December 4, 2023
Papageorgiou J.
Overview
[1] Some people in Canada have been protesting against the conflict in the Middle East by blockading the Canadian National Railway Company’s (“CN”), railways under the banner “Shut it Down for Palestine.” While people have the right to express their views, they have no right to do so by trespassing on CN’s private property.
[2] So far, these protests have occurred in respect of CN and Canadian Pacific railway tracks as follows: Winnipeg, Manitoba on November 20, 2023 (CN), in Regina, Saskatchewan on November 29, 2023 (CP), and Montreal, Quebec on December 1, 2023 (CN).
[3] The protest organizers have said that these blockades are part of a “growing movement across the country to block railway tracks.”
[4] CN brings a motion for an interim quia timet injunction without notice restraining the defendants from blockading its railway operations in Ontario.
Decision
[5] For the reasons that follow I am granting the injunction with a return date of December 13, 2023 at 10:00 am when the moving parties can see to have the motion continued and when interested parties may appear and make argument should they wish.
Issues
[6] A quia timet injunction is said to be an “illustration of the rule that prevention is better than cure” especially where the cure in the form of damages may be uncertain: The Corporation of the Town of Wasaga Beach v. Persons Unknown, 2023 ONSC 4929 at para 28.
[7] The usual test for an injunction applies where a quia timet injunction is sought: R.J.R. MacDonald Inc. v. Canada (Attorney General), 1994] SCR 311 at paras 83-84:
• Is there a serious issue to be tried?
• Will there be irreparable harm if the injunction is not granted?
• Does the balance of convenience favour granting the injunction?
[8] There are some differences in the application of these criteria which I set out in my discussion of each.
Analysis
Issue 1: Has CN demonstrated a serious issue to be tried?
[9] CN operates several rail lines in the Province of Ontario. CN is the lawful occupier of all land on which railway tracking and rights-of-way are situated in Ontario. Therefore, if CN tracks are blockaded, this will constitute trespass.
[10] While vague evidence about intended protests is insufficient for the purposes of a quia timet injunction, Courts have held that where the evidence is clear and specific about the conduct that will take place, and there is a high degree of probability that the trespass will occur, this is grounds to order a quia timet injunction: Westfor Management v. Extinction Rebellion, 2021 NSSC 93 at para 32.
[11] Here, in addition to social media posts expressly directing railway blockades “from coast to coast”, organizers of these protests expressly stated that their action is part of a:
growing movement across the country to block railway tracks in order to interrupt Canadian support for the genocide being committed by Israel in Gaza and the increasing violence against Palestinians in the West Bank.
[12] An Instagram reel posted on November 29, 2023 depicted a protestor at the Regina Protests who states, “If you think this is the end, we are coming back bigger and stronger.”
[13] Another Instagram post dated November 29, 2023 stated “…This blockade is our signal to the government that we will not stand down until a permanent ceasefire is reached.”
[14] There is also a toolkit on the website of the organizers of the Blockades on how to do a Blockade.
[15] Finally, there are posts on the internet where prior Blockades have been celebrated and further Blockades are encouraged.
[16] This is clearly an ongoing situation that is developing.
[17] In similar circumstances, Ontario Courts have consistently held that there is a serious issue to be tried where claims have been advanced seeking to restrain individuals from illegally trespassing on CN property: CNR v. Chief Chris Plain, 2012 ONSC 7348.; Canadian National Railway Company v. Plain et al., 2012 ONSC 7356; Canadian National Railway Company v. John Doe et. al., 2020 ONSC 8225; Canadian National Railway Company v. John Doe, 2014 ONSC 1945.
[18] In Canadian National Railway Co. v. Plain, Brown J. held as follows:
[…] the evidence leaves no doubt that CN has a very strong case that the defendant protestors are trespassing on its property and preventing CN from using that property as it has been for many decades […]
[19] I am satisfied that CN has established that there is sufficient clear and specific evidence about the intended protests on CN’s railways, as well as a high probability that such protests will occur and that this will constitute trespass. Thus, CN has established that there is a serious issue to be tried.
Issue 2: Will there be irreparable harm if the interim injunction is not granted?
[20] When irreparable harm is considered in relation to a quia timet injunction, “there must be a high degree of probability that the harm will in fact occur.” Operation Dismantle v The Queen, 1985 CanLII 74 (SCC), [1985] 1 SCR 441 at para35. This Court has commented that a high degree of probability that harm will occur may require “proof of imminent danger” and “proof that the apprehended damage will, if it comes, be very substantial”: Canadian Civil Liberties Association v Toronto Police Service, 2010 ONSC 3525 at para 86.
[21] I am satisfied that the evidence before me satisfies this test.
[22] CN operates the largest railway business in Canada. It has an extensive network that provides rail freight transportation services to thousands of customers throughout Canada and the United States. Together, these customers account for the annual movement of several million carloads of freight which includes perishables, foodstuffs, manufacturing components, consumer goods, dangerous goods, building materials and industrial products—all of which are critical to Canada’s domestic and export economies.
[23] The rail corridor in Ontario is one of the busiest of the entire CN rail service. CN trains travelling on this corridor are typically 110 to 190 cars in length and may each carry freight as well as 90 or more customers. There are also 26 VIA passenger trains that use this same corridor each day.
[24] The value of the commodities CN handles using the main corridor through Ontario is well in excess of $350 million per day. As well CN earns revenue from VIA for handling their passenger trains.
[25] Blockades on CN’s rail lines prevent the movement of CN (and possibly VIA) trains. The impact of these blockades is significant – loaded rail cars and containers pile up at CN’s operating yards, and there is a risk that the yards will run out of storage room. At that point, cars and containers back up into other parts of the operation across Canada and the United States.
[26] Rail traffic becomes backlogged. The result is delays to customers which exceed the duration of the actual blockades. This is because start-up problems mount for every hour rail lines are blocked – customers simply cannot process two days’ worth of traffic in one day, resulting in further backlogs. In turn, this produces a shortage of empty equipment for subsequent loading, creating a further compounding effect. By the time the backlog is cleared, costs of these compounded delays will be much greater than the sum of the costs of the individual train delays.
[27] As well, CN contracts with its customers to deliver goods within specified periods of time. Many of the shipments are extremely time sensitive, particularly foodstuffs, the intermodal or container shipments (which are often destined for overseas shipment to international customers), and the freight and commodities for “just-in-time” delivery. As CN’s flow of traffic is disrupted, other service in the CN system will quickly start to decrease due to an imbalance of motive power, crews and freight equipment.
[28] By way of example, as a result of the Winnipeg Blockade, sixteen CN trains were impacted for a cumulative delay of seventy-two hours. More specifically, it is estimated that the Winnipeg Blockade interfered with the passage of roughly 35-40% of the railcars on CN’s entire network and delayed a similar percentage of CN’s average $46 million daily revenue.
[29] In summary, Blockades on CN’s railway lines cause significant economic damage to CN, its customers, and others. The resulting impact on CN’s operations causes irreparable harm to CN and others. Such harm includes the following:
a. delays in the delivery of bulk commodities and goods and extended yard or line holding of such goods, including chemicals and hazardous commodities, food products (including perishables), automotive parts and automobiles (which are highly sensitive to damage and theft), water purification, jet fuel, lumber and forest products and manufactured goods;
b. increased yard congestion at CN’s facilities including increased costs of yard crew activities;
c. disruption of motive power (engine) cycles from a normal balanced use and routings affecting CN’s operations;
d. loss of revenue to CN and increased costs to CN’s customers, including VIA; and
e. suspension of passenger traffic.
[30] The concerns are not only financial.
[31] Protesters have implored supporters to block railway tracks and stated that “if our voices aren’t enough then we’ll put our bodies on the tracks and we’ll advocate with our actions.”
[32] In an email press release protesters stated that they would not stop “even if that means putting our bodies on the line against the continued flow of capital.”
[33] Other courts have held that blockades cause significant economic damage to CN, its customers and others, and that such harm is irreparable: CNR v. Chief Chris Plain, 2012 ONSC 7348 at paras 10, 22. Courts have also held that this immeasurable harm is unquantifiable and the defendant’s ability to satisfy any judgment is unknown: Canadian National Railway Company v. John Doe, 2020 CarswellOnt 6677 at para. 7.
[34] I am satisfied that CN has established that it will suffer irreparable harm if the injunction is not granted.
Issue 3: Does the balance of convenience favour granting the injunction?
[35] Unless an injunction is granted restraining the defendants from demonstrating on CN railway operations in Ontario, CN operations will be significantly disrupted. Given the impact a shut-down has on third parties and customers, the public interest is not served by allowing further blockades to occur.
[36] While the defendants may seek to engage in a form of expressive activity, the issue is that their demonstration would be improperly conducted on private CN property and not in a public forum. As Justice Brown stated in Canadian National Railway Company v. John Doe:
[…] 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.
[37] In this case, as in Canadian National Railway Company v. John Doe, the defendants are using CN’s railway line as a forum to garner media attention for their political protest. As such, the blockade is simply an illegal protest on private property. Accordingly, the balance of convenience supports granting CN an injunction enjoining the defendants from trespassing on the CN’s operations in Ontario.
[38] Order to go granting the injunction with a return date on December 13, 2023 when the motion to continue this motion will be heard and where any interested parties may appear to speak to the matter.
[39] I am seized of this matter.
Justice Papageorgiou
Released: December 4, 2023
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN NATIONAL RAILWAY COMPANY
Plaintiff
– and –
JOHN DOE, JANE DOE and PERSONS UNKNOWN
Defendants
REASONS FOR JUDGMENT
Papageorgiou J.
Released: December 4, 2023