CITATION: Timiskaming Forest Alliance Inc v. Flood, 2026 ONSC 3336

COURT FILE NO.: CV-25-00000200-0000

DATE: 2026-01-27

BETWEEN:

TIMISKAMING FOREST ALLIANCE

Plaintiff

– and –

LORNE FLOOD AND DAVID FLOOD

Defendants

DOROTHY LARKMAN, CLAIMING TO BE ‘JANE DOE’

C. Matthews and L. Wortsman, for the Plaintiff

Self Represented Defendants

M. Swinwood, for the Defendant

Defendant

Defendants

Defendant

C. Holmes and C. Rapson, for the Defendant

HEARD: January 23, 2026

1An action was commenced by the plaintiff relating to the blockading of their logging operations.

2The plaintiff claims $1,000,000 in damages and an injunction as a result of the blockade, which will result in the plaintiff losing its window of opportunity to harvest a section of the Timiskaming Forest known as “Cairo 173”.

3A licence to harvest Cairo 173 was granted by the MNR and on March 13, 2025, the MNR approved the work schedule to harvest in the Fall of 2025.

4A motion for interim and interlocutory injunction was argued on January 8, 2026. At that time, the installation of a bridge was at stake, as part of the road preparation required to access the lands to be harvested and a deadline had already been missed, further jeopardising the completion of the harvest within the appropriate window.

5An interim injunction was granted on January 9, 2026 and written reasons released on January 16, 2026. The interim injunction was to remain in place until further order.

6The plaintiff’s motion for interlocutory injunction was heard on January 23, 2026.

7The defendants, Lorne Flood and David Flood do not oppose the interlocutory injunction. They did not wish to address any terms at this time.

8The MNR did not take a position on the motion.

9Dorothy Larkman has responded as Jane Doe. She objects to the interlocutory injunction and alleges that there has been insufficient consultation pursuant to s. 35 of the Constitution Act, 1982.

10I heard submissions from counsel Matthews for the plaintiff and Swinwood for Ms. Larkman.

11These are my reasons on the interlocutory injunction. For ease of reference, I have incorporated parts of my earlier reasons for granting the interim injunction where appropriate.

12For the reasons that follow, the plaintiff’s motion for interlocutory injunction is granted.

THE PARTIES

13The plaintiff is a cooperative whose shareholders include small logging operators, forest companies and First Nations, including Matachewan First Nation (MFN).

14The plaintiff seeks damages and an injunction as a result of a blockade that is preventing it from entering and harvesting an area described as Cairo 173, pursuant to a sustainable forest licence granted by the MNR.

15We are dealing here with Crown Land and the MNR was named as a necessary defendant. They are responsible for carrying out the duty to consult and accommodate pursuant to s. 35 of the Constitution Act, 1982 and for the approval of forest management plans. The parties agree that the plaintiff is not an agent of the Crown for the purpose of its duty to consult and accommodate.

16Lorne Flood and his son David Flood are members of the Matachewan First Nation and were identified as parties to the blockade. They confirmed their position by email on December 24, 2025: “We want you and your client to be aware we will not be continuing any form of blockade or action to stop TFAI’s decision to proceed”.

17Dorothy Larkman is a member of the Matachewan First Nation. She is Lorne Flood’s sister. Their family has traditionally used the land in question in this litigation, referred to as Cairo 173, and they and others hold trapline licences over same. Lorne Flood is the holder of the licence for Ms. Larkman’s family.

18Ms. Larkman is not a named defendant, however she filed a notice of intent to defend on January 2, 2026 and appeared at the motion on January 8, 2026 and made submissions. On January 23, 2026, her counsel, Michael Swinwood had filed responding materials and made submissions on the motion for interlocutory injunction.

19Ms. Larkman has filed a Notice of Constitutional Question regarding her rights under s. 35 of the Constitution Act, 1982 and the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP). S. 109 of the Courts of Justice Act requires service of the Attorney General of Ontario and the Attorney General of Canada. I am satisfied that it is not necessary to decide that issue for the purpose of the motion for interlocutory injunction. It is sufficient that I be aware that it has been raised by Ms. Larkman in these proceedings.

THE FACTS

20The background and history is set out in the Affidavits of Daryl Sebesta. The Timiskaming Forest is one of 39 Forest Management Units (“FMU”) in Ontario. The MNR grants a Sustainable Forest Licence (“SFL”) for each FMU pursuant to s. 26 of the Crown Forest Sustainability Act, 1994. TFAI holds the SFL for the Timiskaming Forest. TFAI, together with its shareholders, has assumed all forest management, planning and operational responsibilities for the 10,000 sq/km Timiskaming Forest, all of which is Crown land. TFAI’s management responsibilities for the Timiskaming Forest are set out in 10-year Forest Management Plan. FMPs are designed to mirror the evolution of natural disturbances in a forest, such as forest fires, windthrow or blowdown, and insect infestation. The Boreal Forest is primarily an even-aged forest, with most species competing for access to resources (e.g., sunlight, soil nutrients, etc.). Disturbance allows for young vigorous regrowth. The current FMP for the Timiskaming Forest covers the period from 2021-2031 (the “2021-31 FMP”). The 2021-32 FMP sets out harvest schedules, renewal strategies, environmental protection and road construction plans.

21For the 2021-31 FMP, consultation with MFN, including the Floods, extended from 2015-2021.

22On March 16, 2021, the MNR approved the 2021-31 FMP for implementation beginning on April 1, 2021.

23For each year of an FMP, an Annual Work Schedule (“AWS”) is prepared. An AWS sets out the order and extent of all work to be carried out during a particular year in accordance with the FMP and includes harvesting locations and methods, road construction and maintenance, site preparation, tree planting, and environmental protections and road construction plans.

24The MNR is responsible for consultation with Indigenous communities regarding each FMP and the affidavits of Daryl Sebesta set out the consultation and accommodation that took place.

25On March 13, 2025, the MNR approved the 2025-26 AWS, which included harvesting Cairo 173 in the fall of 2025.

26Ms. Larkman indicates in her affidavit that prior to the Covid-19 lockdowns, she participated in some discussions related to a marten study but was complying with Covid-19 public health measures and did not attend in-person meetings during that time. She relied on her brother, Lorne Flood to be informed and to raise issues as they arose.

27In the Spring of 2022, Ms. Larkman advises that she attended a meeting by internet regarding the marten study presented to TFAI and the MNR.

28She was advised in November 2023 that her brother Lorne Flood and nephew David Flood were requesting that their family trap grounds be removed from harvesting.

29Extensive consultation continued as evidenced in the affidavits of Daryl Sebesta.

30In accordance with the 2025-26 AWS, a contractor for a TFAI shareholder started preparatory road work to extend an existing road to access Cairo 173 on July 23, 2025.

31Ms. Larkman deposes that on July 24, 2025 she attended a meeting of Chief and Council of the Matachewan First Nation. Affidavits of Anne Commando-Dube and Shy-Lynn Benson confirm Ms. Larkman’s presence, despite the fact that she is not listed on the Council Minutes as having been there. She says she raised concerns about the logging activity that she had recently observed, and a motion was passed, to “to approach JP to stop the clear cutting on Binachi Road”.

32On July 25, 2025, several individuals positioned themselves along the access road to Cairo 173, preventing harvesting operations from accessing Cairo 173.

33Ms. Larkman was advised that the day after the council meeting, the Chief of Mattachewan First Nation had already contacted the logging company and allowed them to proceed.

34Around this time, Ms. Larkman says she was informed that the area accessed by the new road formed part of her family’s trapping ground. Many discussions followed to try to resolve the issue and have the blockade removed.

35Between early August and late September 2025, Ms. Larkman states that work continued, and a group of Matachewan First Nation members were prompted to maintain a daily peaceful presence at the entrance to the trail. They did not prevent First Nation members of others from passing by foot or vehicle. They allowed forestry workers to walk in and retrieve equipment.

36The Ontario Provincial Police became involved and Ms. Larkman said that they explained the distinction between a peaceful demonstration and conduct that could become unlawful if an injunction were issued.

37On August 12, 2025, Ms. Larkman says that she created a petition and obtained approximately 145 signatures from band members. When this was presented at a community meeting, the Chief declined to engage.

38On December 11, 2025, the plaintiff issued a claim. Lorne Flood and his son David were named defendants, as well as Jane Doe and John Doe and the Crown, as represented by the MNR.

39On January 5 and 6, 2026, preliminary work began in anticipation of the installation of a bridge required to access the area to be harvested, without interference or blockade. The bridge was to be installed next followed by access roads.

40On January 7, 2026 Dorothy Larkman set up a blockade with Jeanette Gilbert, the day before the motion for an interim injunction was set to be adjourned as a result of the agreement reached between the plaintiff and Lorne Flood and David Flood. Mr. Daryl Sebesta deposed that Ms. Larkman advised that she would continue to blockade until an injunction was issued.

41Ms. Larkman does not claim to be a representative of the Matachewan First Nation. I therefore allowed Chief Batisse to speak at the interim motion on behalf of the Matachewan First Nation to confirm the First Nation’s position on that issue. He confirmed that the MFN was in favour of the harvest and did not support the blockade.

42There are no proceedings before me between the Floods, or John Doe and Jane Doe or Dorothy Larkman, and the Crown. The dispute is between the logging company and Ms. Larkman.

43The plaintiffs now seek an interlocutory injunction to prevent blockading of their access to and operations over the area known as Cairo 173 for their licenced harvesting project.

ANALYSIS

Duty To Consult and Standing

44As I mentioned, the dispute that remains before the court is essentially between the private loggers and Ms. Larkman.

45The right to consultation and accommodation is well established at law. It arises from s. 35 of the Constitution Act, 1982 and helps to ensure that the Aboriginal peoples are consulted with respect to development projects on lands over which they have Aboriginal and treaty rights and that their concerns can be meaningfully addressed.

46A duty to consult is triggered when the Crown has real or constructive knowledge of the potential existence of Indigenous rights or title and contemplates conduct that might adversely affect it.

47The duty to consult and accommodate arises as part of the process of honourable negotiation required by the Crown by s. 35(1) of the Constitution Act, 1982.

48Mr. Swinwood adds that the duty to consult must be considered in light of the UNDRIP. The UNDRIP does not create new law or statutory obligations; rather, it is an interpretive lens to be applied to Crown-Indigenous relations to determine if the Crown has fulfilled its legal obligations, as incorporated into Canadian law through the United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14.

49In particular, article 18 of the UNDRIP recognizes the right of Indigenous peoples to participate in decision making in matters affecting their rights through representatives chosen in accordance with their own procedures, however other rights specifiy that they apply to both Indigenous peoples collectively as well as individually.

50Ms. Larkman is seeking the right to active participation in the discussion on how the forestry operations will be undertaken, but not the right to consent to forestry operations.

51Mr. Larkman argues that she has essentially been assigned the responsibility to speak for the land on behalf of her community. She says that she is an Elder and Knowledge Keeper, with recognized ancestral rights to specific traditional trapping grounds and is known as such by families who rely on her for the sharing of history, teachings and land-based knowledge. As such, she argues that she is a proper s. 35 Indigenous rights holder.

52She also argues that the Chief of the MFN does not speak for her or her First Nation and did not have authority to act on behalf of the community in the consultation process.

53Mr. Matthews argues that Lorne Flood is also an Elder and the trapping licence holder for Ms. Larkman’s family, and Mr. Flood does not oppose the interlocutory injunction.

54Ms Larkman also argues that she has the support of a petition behind her. That petition, however, was commenced before these proceedings and is titled “Place A Moratorium On Clear-Cutting In The 9 Townships Surrounding Matachewan First Nation”. It has apparently been signed by 145 members of the Matachewan First Nation.

55Ms. Larkman is making a similar argument to that which reached the Supreme Court of Canada in the matter of Behn v Moulton Contracting, [2013] SCC 26.

56In that case, the Supreme Court confirmed the Crown’s duty to consult. The question was whether the individual parties, the Behns, could assert the duty to consult on their own, where an authorisation to harvest had already been granted to Moulton, a private party.

57On this issue, The Supreme Court stated, at para 30:

The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55. But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see, e.g., Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517.

58In that case, as here, it did not appear from the pleadings that the First Nation involved in that case had authorized the individual person to represent it for the purpose of alleging insufficient consultation. Although she has shared concerns raised by others, Ms. Larkman does not purport to represent the Matachewan First Nation.

59In Behn, the Supreme Court of Canada did assert that there is a possibility that individuals could have a certain standing in some circumstances. The Court stated that rights may sometimes be assigned to or exercised by individual members of Aboriginal communities, and entitlements may sometimes be created in their favour. In a broad sense, it could be said that these rights might belong to them or that they have an individual aspect regardless of their collective nature.

60More specifically, the Behns claimed to have a greater interest in the protection of hunting and trapping rights on their traditional family territory than other members of their First Nation and as such, the Court stated that it might be argued that this connection could give them a certain standing to raise the violation of their particular rights as a defence to Moulton’s tort claim. No decision was made on that point, however.

61This Court in Enbridge Pipelines Inc v Williams et al, 2017 ONSC 1642 at para. 33 held that the question of whether the Crown made efforts to comply with its duty to consult and accommodate was not relevant since the claimant was neither the Crown nor an agent of the Crown.

62Broad J. went on:

“The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised.”

63Ms. Larkman relies on this Court’s decision in Foxgate Developments Inc. v. Jane Doe, 2022 ONSC 7035. She references paragraphs 76 and 77 of that decision, however, in those paragraphs, the Court is quoting from the decision in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534. Sweeny J. goes on to explain at paras 79 and 80 that:

In Frontenac, there was an outstanding land claim covering the lands upon which the exploratory drilling was to be conducted. In that case, the Chiefs and other members had engaged in peaceful protest. It is important to appreciate the case the Court of Appeal had before it. In that case, although the Indigenous defendants did not fully participate in the injunction hearing, the issues with respect to the dispute over the land were well known. They were clearly articulated by the Court of Appeal. The exploratory drilling was “contentious” activity in the face of an acknowledged land claim: Frontenac, at para. 48.

The Court of Appeal statements were obiter dicta. They were not part of the actual decision of the court. The court was deciding the appropriate punishment for contempt. As such, they provide guidance but do not provide a binding authority on the issue.

64Justice Sweeny concludes, at paras. 88 and 89:

In my view, based on the authorities, the court is only obliged to make every effort to encourage consultation, negotiation, accommodation, and reconciliation among competing rights and interests and must ensure that every effort has been made to obtain a negotiated or legislated solution when certain pre-conditions are present.

Those pre-conditions include that the injunction might have an effect on s. 35 aboriginal or treaty rights asserted by a proper rights holder. Nalcor also says that the duty to consult would only arise where the Crown or its agents are parties. Thus, it is not every instance in which a party seeks injunctive relief against Indigenous persons that the Frontenac obligations arise.

65Ms. Larkman also references paragraph 43 of Nalcor Energy v. NunatuKavut Community Council Inc. 2014 NLCA 46 (Nfld CA) in raising that the injunction may be denied on the ground that the plaintiff has not come to court with “clean hands”. However, the premise in that paragraph is “if it is established that the Crown has a clear duty to consult and has patently failed to observe that duty, the conscience of the Crown as injunction-claimant may be regarded as being affected”. In the case before me, the the injunction-claimant is not the Crown or its agent.

66Paragraphs 41-44 of that decision from the Supreme Court of Newfoundland and Labrador Court of Appeal read:

I conclude, therefore, that the principles applicable to the granting of an injunction are no different just because aboriginal claims for consultation and accommodation may be involved in the issues regarding the cause of action being asserted and the specific remedy being sought. There is no pre-condition to application of the general principles for granting or refusing an injunction that the claimant satisfy the court that the duty to consult and accommodate has been exhausted and that the court must take steps to facilitate such consultation and accommodation. If there were such pre-conditions, a defendant resisting a remedy for vindication of claimed rights would always be able to stymie, or at least significantly delay, an injunction by simply asserting that the duty to consult has not been exhausted. That result would run counter to reassertion in Behn that the duty to consult does not give aboriginal peoples “a veto” (paragraph 29).

That is not to say, however, that claims concerning the duty to consult and accommodate are completely irrelevant to any claim for an injunction. If, indeed, the claimant asserting the cause of action on which the claim to an injunction is based, is the Crown or an agent of the Crown, the question of whether the Crown and the agent have made efforts to comply with their duty to consult and accommodate may be relevant to the exercise of the Court’s decision to deny an injunction on discretionary grounds.

For example, an injunction may be denied on the ground that a claimant has not come to court with “clean hands”. Consultation must be meaningful and done in good faith with the intention of substantially addressing the concerns of the affected aboriginal group: Haida Nation. Where it is established that the Crown has a clear duty to consult and has patently failed to observe that duty, the conscience of the Crown as injunction-claimant may be regarded as being affected, thereby entitling the court to consider that fact in exercising its discretion to grant or deny the requested injunction. However, it is not just any misconduct on the part of the claimant that may be relied on as a ground for invoking the “clean hands” maxim; it must have a direct relation to the very transaction or event concerning which the complaint is made: City of Toronto v. Polani (1968), 3 D.L.R. (3d) 498 (Ont. C.A.); Dering v. Earl of Winchelsea (1787), 1 Cox 318; 29 E.R. 1184.

That said, the court must be careful not to allow the raising of this issue in this way to result in a full trial within a trial, so to speak, of whether the duty to consult and accommodate, in all of its nuances, had been fully satisfied (unless, of course, the issue is independently raised by the defendant by way of counterclaim for declaratory or other relief). That could probably lead to the issue being raised in all cases, which would effectively result in accomplishing indirectly what is not available directly as an addition to the test for an injunction. It must be remembered that a failure to consult fully would not automatically equate to a lack of clean hands. The clean hands maxim focuses on the conscience and good faith of the party claiming the injunction. Nevertheless, in an egregious case, where there is a clear duty to consult and accommodate and an obvious failure to comply with that duty, it should, in principle be possible for the party resisting the imposition of a perpetual injunction to raise the “clean hands” doctrine in this context and to request the court to take account of that fact, along with all other discretionary considerations, in determining whether to exercise the discretion to grant or refuse the injunction. The impact of a clear failure to observe the duty to consult and accommodate in an egregious case would, of course, have to be considered as well against the underlying rationale for the duty which is to encourage dialogue, discussion and negotiation as a means of resolving differences, rather than using self-help confrontation or legal adjudication.

67Mr. Swinwood referred me to Beaver v. Hill, 2018 ONCA 816, a family law case between spouses, where the Court of Appeal concluded that it was not an abuse of process for Mr. Hill to pursue his constitutional challenge in that case. However, no determination was made about his individual rights and the Court of Appeal was clear that until that issue was decided, Mr. Hill was to abide by interim orders made pursuant to existing legislation.

68Mr. Swinwood also relies, on Nelson v. Canada (Attorney General), 2025 MBKB 155, however in that case, the Manitoba’s King’s Bench stated that the context was annuity payments made directly to individuals, which is distinct from cases involving collective rights that do not involve individual beneficiaries.

69The duty to consult exists between the Crown and Aboriginal peoples. This has been interpreted as being a collective right. The UNDRIP principles relate to indigenous-Crown relations. Ms. Larkman is not a representative for the Matachewan First Nation, nor has she clearly been designated as a representative in these proceedings. The claim is not being advanced by the Crown, nor is the Crown moving for an injunction. The dispute is with a private party who is not an agent of the Crown.

70I note that in Kanyen’ke:haka Nation v. Ontario et al, 2025 ONSC 7104, Rees J. of this Court, stated at paras. 42 and 43:

Before discussing the procedural issues raised on the application and motion, it is helpful to recall that in the context of Aboriginal rights claims under s. 35 of the Constitution Act, 1982, “courts should avoid making definitive pronouncements where a case is in the early stages and where the applicable law is yet in the early stage of development”: Beaver v. Hill, 2018 ONCA 816, 428 D.L.R. (4th) 288, at para. 29, leave to appeal refused [2019] S.C.C.A. No. 82, citing Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.C.R. 227, at paras. 32 and 35.

This caution is warranted because, among other reasons, Aboriginal treaty and other s. 35 claims are best suited to civil actions for declaratory relief, where there are pleadings, pre-trial discovery and “procedural advantages afforded by the civil rules of practice to facilitate a full hearing of all relevant issues”: Beaver, at para. 30, citing Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56, [2011] 3 S.C.R. 535, at para. 11.

71Having considered the above, I would not be inclined to find that Ms. Larkman has standing in these proceedings, however I conclude that it is not necessary to determine her standing at this stage. As in Behn, I am satisfied that this case is more appropriately addressed on an analysis of abuse of process, which I will address further in these reasons at item 3.

Application of The Test For Interlocutory Injunction

72I nevertheless turn to the three part test for an interim injunction.

73Section 101 of the Courts of Justice Act provides that an interlocutory injunction may be granted where it appears to a judge of the court to be just or convenient to do so, and on such terms as are considered just.

74The test for an interim injunction is set out by the Supreme Court of Canada in RJR MacDonald Inc. v. Canada (Attorney-General) at paras. 77-80. The test requires the moving party to demonstrate that:

(a) there is a serious issue to be tried;

(b) irreparable harm will result if the relief is not granted; and

Serious issue to be tried and a strong prima facie case

75I agree with the plaintiff that there is a strong prima facie case here. The claim before me is between the private plaintiff who has been granted a lawful licence to harvest the lands in question, and the private persons who wish to blockade their access to the land.

76The threshold for whether there is a serious question to be tried is a low one, however, in this case, since the installation of a bridge and preparation of the access road are imminent, to be followed by the harvesting within the suitable window, I have asked myself whether the plaintiff has established a strong prima facie case.

77As outlined by the plaintiff, in Enbridge, the Ontario Superior Court found that blocking access to a work site and threatening to stand in front of an excavator were sufficient to establish a strong prima facie case of trespass. In Hydro One Networks Inc v The Haudenosaunee Confederacy Chiefs, blocking access roads for the purposes of stopping a hydro project supported a strong case for trespass, intimidation, interference with contractual relations, and interference with economic relations interests by illegal or unlawful means, including nuisance and trespassing, by interfering and preventing access.

78The circumstances are similar here, and on a preliminary assessment, it appears that the blockade is illegal and interferes with the plaintiff’s commercial activities, causing damages.

79Ms. Larkman argues that she has an equal right to be on those lands pursuant to her family’s trapping rights.

80As outlined by the plaintiff, trapping rights are presently subject to provincial regulations and the "taking up" of land for purposes such as logging.

81I have considered this issue on the basis of a strong prima facie case test and reach the conclusion that the plaintiff has a strong prima facie case and meets the first part of the test on either analysis.

Irreparable harm

82At the second stage, the Court must decide whether refusing to grant the interlocutory injunction will cause harm that cannot be remedied in the action.

83The plaintiff seeks damages for intentional interference with economic relations, nuisance, criminal mischief, and trespass to property in the amount of $1,000,000.

84As outlined by the plaintiffs, injunctions are the preferred remedy for trespass. Property rights usually lend themselves to injunctive relief rather than damages. The inability to access the lands will have cascading effects on others, and the right to access the land should be enforced by an injunction.

85I note that in this case the blockade has also caused the plaintiff to miss a deadline imposed by the MNR to install the water crossing that was required to facilitate harvesting in Cairo 173. The plaintiffs will now be required to install a bridge to access Cairo 173, resulting in additional delay and costs. The ongoing delay will cause employees and contractors to lose work and cause the plaintiff and the First Nation to lose harvesting revenues.

86The plaintiffs assert that they are at risk of missing their window of opportunity for harvesting.

87Ms. Larkman argues that the harvesting licence does not usurp her right to gather and enter ancestral trapping grounds and that the defendants’ actions resulted in minimal disruption.

88Ms. Larkman also argues that there is no evidence that the defendants’ actions at the protest site could meet the criminal standard of trespass, nuisance, mischief or intimidation.

89In Hydro One Networks v. The Haudenosaunee Confederacy Chiefs, 2019 ONSC 4616, irreparable harm from the blockade was found on the basis that the suspension of work on the project put Hydro One at risk of breaching contractual obligations.

90In 9646035 Canada Limited et al v Kristine Jill Hill et al, 2017 ONSC 5453, irreparable harm was found where the plaintiffs were prevented from executing their development plans for the property.

91In Enbridge Pipelines Inc v Williams et al, 2017 ONSC 1642, this Court found that the plaintiff and the public would suffer irreparable harm if maintenance work on the pipelines was not completed.

92As stated by the Chief Justice of this Court in Automotive Parts Manufacturers' Association v. Jim Boak, 2022 ONSA 1001: ““Irreparable harm” 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”: RJR-MacDonald Inc., at para. 59.”

93Recently, in Tsawak-Qin Forestry Limited Partnership v. O'Connell 2025 BCSC 1880 the party opposing the injunction argued that the injunction-claimant had provided bare assertions in support of this part of the test, rather than real evidence. The Supreme Court of British Columbia found that it would not be possible, in the urgent circumstances of a motion for injunction for the moving party to provide evidence of the profit they will lose.

94I agree that these principles are applicable here. It is not necessary for the plaintiff to quantify their loss. Further, the plaintiff has outlined how the harm from the loss of harvesting does not end with the plaintiff, but will trickle down to employees, contractors and the industry that relies on a supply of lumber to operate.

95Loss of revenue is not the only harm being suffered here. The other claims outlined above, such as trespass, cannot easily be quantified.

96Based on the evidence before me, I conclude that the evidence meets the test for irreparable harm.

Balance of convenience

97At the third stage of the test, courts consider which of the parties will suffer the greater harm from the granting or refusal of the injunction pending a decision on the merits.

98This project has been in development for several years. There is evidence of an extensive consultation process by the MNR. The Matachewan First Nation was involved in the consultation process and supports the project. It is notable that this was not just rubber stamped. The plaintiff outlines many amendments that were made to the project as the result of consultation with the First Nation and trappers, namely Lorne Flood and his son David. Many amendments were made in consultation with the First Nation, including postponing or removing harvesting of other blocks of land.

99The plaintiff has provided evidence of the existence of traplines throughout the region and that the traplines on the land in question have barely been utilized in the last 10 years; that harvesting of Cairo 173 is not expected to have negative impact on the marten population; that the planned harvesting of Cairo 173 is predominantly deciduous hardwood trees, which is not a marten habitat; that most areas containing conifers in Cairo 173 are not being harvested; that much of the wood in Cairo 173 is nearing the end of its natural life; and this plan also includes a birch protocol.

100Ms. Larkman wishes to litigate these issues and alleges that not all trapping is reported to the MNR, which may very well be true, and further, that her loss will include the destruction of older forest growth that supports wildlife and medicines; disruption of animal movement and harvesting patterns relied upon by her family; loss of a place where she can teach her children and grandchildren traditional practices; and loss of a land-based classroom that cannot be recreated elsewhere. She states that once the land is altered in this way, no future court decision can restore it to its present state. Monetary compensation would not replace the loss of teachings, relationships, or practices tied to this specific place. She also argues that since there are contingency plans available to the plaintiff, they should postpone this project while consultation takes place.

101The plaintiff disagrees and the MNR stands by its consultation process. There is evidence before me that the harvesting activities in this case have been carefully considered and will have beneficial effects; for instance, on trapping activities of some animals and removing trees that are approaching their life expectancy.

102Ms. Larkman also raises, through an affidavit of Tristan Flood, that there are alternatives available if the plaintiff should choose to postpone the logging project on Cairo 173. The plaintiff denies this.

103The consultation process has taken place. The MNR has made a decision and approved the work schedule on March 13, 2025, for harvest of Cairo 173 in the Fall of 2025. The First Nation will share in the revenues, presumably through an accommodation agreement. The Chief of the First Nation advises that the First Nation supports the harvesting project.

104The plaintiff is a private party who is relying on a lawfully granted licence to harvest. The contractor with its equipment and employees as well as the clients who depend on the harvested materials to operate, have not breached any duty to the defendants or Ms. Larkman in this respect.

105Again, these proceedings are not between Ms. Larkman and the MNR or between her and the Matachewan First Nation. This is a factor in the weighing the balance of convenience.

106In the recent case of Tsawak‑Qin Forestry Limited Partnership v. O'Connell, 2025 BCSC 1880 the Supreme Court of British Columbia addressed the balance of convenience test and provided a helpful summary of the law in cases such as these at paragraphs 29 to 31:

Counsel for Mr. Jones urged me to consider the broader public interest in preserving old growth forests, and battling climate change, when weighing the balance of convenience in this case. He has submitted evidence in support of his position that logging of the Upper Walbran Valley will result in loss of old growth forest, biological diversity, and climate resilience.

To this, I can only reiterate the words of the Court of Appeal in Teal Cedar Appeal, which are conclusive on this point:

2The case is not about the wisdom of government forest policy. It is decidedly not about the Court’s views on whether and where old-growth logging should occur in this province, even in the context of climate change. In an injunction application, those are matters outside of the constitutional competence of the courts and exclusively within the constitutional purview of the government elected by the citizens of British Columbia.

There is no room in the injunction analysis to consider the policy merits of those policies that the protestors wish to have the Provincial Government adopt. As Justice Verhoeven noted in Teal Cedar Injunction Application:

49The problem is, all of the concerns raised by the respondents are for the government to address, and not this Court. Forestry decisions are highly policy driven and require the government to coordinate, balance, and reconcile often competing values and interests…

107That Court went on to conclude that the rule of law should prevail and the balancing of convenience would weigh in favour of granting the injunction.

108I agree that in the circumstances before me, the rule of law considerations must prevail and the balance of convenience weighs in favour of granting the injunction.

109Finally, I have noted that the plaintiff has undertaken to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order sought on this motion has caused damage to the defendants for which the plaintiff ought to compensate them. Ms. Larkman has not provided such an undertaking.

110Applying all these factors, I would grant the interlocutory injunction. I will now turn to the abuse of process.

Abuse of Process

111The doctrine of abuse of process has its roots in a judge’s inherent and residual discretion to prevent abuse of the court’s process. See par 35 in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; see also P. M. Perell, “A Survey of Abuse of Process”, in T. L. Archibald and R. S. Echlin, eds., Annual Review of Civil Litigation 2007 (2007), 243.

112In addition to proceedings that are oppressive or vexatious and that violate the principles of justice, McLachlin J. (as she then was) said at paragraph 36 of her dissent in R. v. Scott, [1990] 3 S.C.R. 979, at p. 1007, that the doctrine of abuse of process evokes the “public interest in a fair and just trial process and the proper administration of justice”. Arbour J. observed in C.U.P.E. that the doctrine is not limited to criminal law, but applies in a variety of legal contexts.

113The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. See paras 55-56 of Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), by Goudge J.A., who was dissenting, but whose reasons this Court subsequently approved (2002 SCC 63, [2002] 3 S.C.R. 307). Fairness is at the heart of the doctrine of abuse of process.

114At paragraph 66 of his factum, Mr. Swinwood states that “Ms. Larkman is not seeking a right to consent to the forestry operations, but rather a right to a process wherein they are an active participant in the discussions on how the forestry operations will be undertaken”.

115An extensive consultation process was undertaken in the case of Cairo 173 and the Matachewan First Nation and members of that community were involved, including Ms. Larkman’s brother Lorne Flood and nephew David Flood.

116She learned that she was at odds with the position of the Chief of her First Nation at least six months ago.

117Ms. Larkman was aware that there was an ongoing consultation process for at least five years.

118Part of this process is outlined in the plaintiff’s affidavit evidence and confirms participation by the Floods over the past few years. The harvesting plan under this licence was approved by the MNR nearly one year ago in March 2025.

119It appears that Ms. Larkman did participate, to some extent, in the consultation process, and that her brother participated extensively. Ms. Larkman says she trusted her brother, Lorne Flood, to keep her informed or raise issues, that she was unable to participate in in-person meetings during the pandemic, and that she was not aware of the mechanism for raising issues at some information sessions.

120These complaints do not trump the rights of the plaintiff, a private party. The complaint of insufficient consultation should have been raised with the MNR, and lawful proceedings initiated rather than using self-help remedies.

121Mr. Swinwood referred me to Clyde River (Hamlet) v. Petroleum Geo‑Services Inc., 2017 SCC 40. I note that in that case, the plaintiff questioned whether there had been sufficient consultation. In that case, however, they proceeded by judicial review.

122Following the council meeting in July 2025 Ms. Larkman was advised that the Chief had allowed the loggers to continue despite there having been a resolution the day before to approach the logging company to stop the clear cutting. He may very well have approached the logger to stop clear cutting, but in any case, it is not my role to interfere with the governance of a First Nation. If Ms. Larkman wished to challenge the Chief’s authority to act, there were legal channels available to her.

123In Behn v Moulton, the Behns raised a breach of the duty to consult and of treaty rights as a defence and this was deemed to be an abuse of process. The Supreme Court specifically stated that if the Behns were of the view that they had standing, they should have raised the issue at the appropriate time. Neither the Behns nor the First Nation in that case had made any attempt to legally challenge the Authorizations when the British Columbia government granted them. As in this case, the Behns had not applied for judicial review, asked for an injunction or sought any other form of judicial relief against the province or against Moulton. Instead, they implemented a blockade. This left Moulton in a position where they had to either forego the harvest or start legal proceedings.

124Moulton brought an action against Behn for erecting a blockade of the company’s logging site. The Behns were pleading as a defence that certain authorizations which the Crown had issued to the company were void due to an alleged failure by the Crown to consult. The Supreme Court of Canada held that it was an abuse of process for individual Aboriginal litigants to plead the failure to consult as a defence in the tort action. The individual Aboriginal litigants had decided not to contest, by way of legal challenge, the validity of the authorizations when they were issued but, instead, employed self-help by subsequently erecting a blockade of the site.

125The Supreme Court of Canada found that to allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.

126It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.

127The Court concluded at para 42:

In my opinion, the Behns’ acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on the grounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of the record, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did they contest the validity of the Authorizations by legal means when they were issued. They did not raise their concerns with Moulton after the Authorizations were issued. Instead, without any warning, they set up a camp that blocked access to the logging sites assigned to Moulton. By doing so, the Behns put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to the Authorizations it had received after having incurred substantial costs to start its operations. To allow the Behns to raise their defence based on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates the discharge of the Crown’s constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannot raise a breach of their treaty rights and of the duty to consult as a defence.

128In my view, to allow Ms. Larkman to raise the insufficient consultation and accommodation at this stage, in response to the motion for interlocutory injunction, essentially as a means of perpetuating the blockade, is an abuse of process.

129To allow the blockade to continue would be, in the words of the Supreme Court of Canada in Behn, “tantamount to condoning self-help remedies and would bring the administration of justice into disrepute”.

130In my view, it would be unfair to allow the defendants to implement a blockade at this stage, and in particular, as against a private party.

131An interlocutory injunction shall issue on the same terms as the interim injunction granted on January 9, 2026.

Until further order of the court or the plaintiff advising that the project has been completed, the Defendants and anyone having knowledge of this Order are restrained, enjoined and prohibited from:

(i) physically preventing, impeding, restricting or in any way physically interfering with, or counselling others to prevent, impede, restrict or physically interfere with, any person or vehicle travelling to or accessing the vicinity of the area in and around Cairo 173 and the access point at the intersection of Whisky Jack Road (a.k.a. Bernachez Road) and Matachewan First Nation Road or any other access point to Cairo 173, as identified in the attached map.

(ii) physically preventing, impeding, restricting or in any way physically interfering with, or counselling others to prevent, impede, restrict or physically interfere with, the Plaintiff, its employees, agents, contractors or subcontractors carrying on its business in furtherance of the harvesting activities at Cairo 173.

For the purpose of clarity, this order does not prevent Mr. Flood attending at the access point to remove his cameras.
The Ontario Provincial Police are authorized to enforce this order.
Costs are adjourned to the next step.

132I thank the parties and counsel for their assistance with this sensitive issue.

133I note that this action was commenced in Timmins, in the District of Cochrane. Mr. Swinwood had not been retained when I raised this with counsel for the plaintiff. This motion was initially presented on a short motions list, virtually. Long motions are usually assigned special dates in this district, and are, by default, to be heard in person. In the circumstances, I proceeded to hear the motion virtually. However, I noticed that many observers joined the proceedings. I am concerned about the fact that the Timiskaming Forest, Cairo 173, and Matachewan First Nation are all located in the District of Temiskaming. Should other steps be required, or the action proceed to trial, the parties may be required to attend in person. This matter should probably continue in the District of Temiskaming. I invite the parties to address this in accordance with Rule 13.1 of the Rules of Civil Procedure.

134Should the plaintiff be seeking costs, I invite counsel to submit no more than five pages of written submissions, along with a costs outline, within ten days. The defendants shall have ten days to respond with no more than five pages of submissions.

C. A. MacDonald, J.

Released: January 27, 2026