CITATION: Canadian National Railway Company v. John
Doe, 2013 ONSC 115
COURT FILE NO.: CV-12-470894
DATE: 20130107
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Canadian National Railway Company, Plaintiff
AND: John Doe, Jane Doe and Persons Unknown, Defendants
BEFORE: D. M. Brown J.
COUNSEL: C. Bredt and H. Pessione, for the
Plaintiff
HEARD: January 5, 2013
REASONS FOR DECISION
I. Blockage of the Toronto-Montreal
railway main line
[1] At around 4:00 p.m. this past Saturday, January 5,
2013, a small number of protesters blocked the Toronto-Montreal main line of
the Canadian National Railway Company bringing freight and passenger traffic to
a halt. Shortly before 9:30 p.m. Saturday night CN appeared before the Court to
seek an ex parte interim
injunction restraining the protest and clearing the tracks. I granted an
Injunction Order in the form set out in Appendix “A” to these Reasons. I
ordered that the blockade cease no later than 12:01 a.m. on Sunday, January 6,
2013. In the result, the protestors left the site around 12:00 a.m. Sunday
morning but not, as it turns out, because the police had assisted in enforcing
the order. In my endorsement Saturday night I stated I would give written
Reasons today for granting the Injunction Order.
II. Basic facts
A. Operations on the Toronto-Montreal
Main line
[2] According to the affidavit of William Albritton,
CN’s General Superintendent, Eastern Region, that operational Region includes
all of CN's rail operations east of Sarnia, Ontario:
(i) The Kingston
Subdivision runs from Toronto east to Montreal, Quebec. In the Eastern Region
CN's Transcontinental main line runs from Dugald, Manitoba eastbound through
Toronto, Montreal and to Halifax, Nova Scotia (the "Main Line"). In
the area between Belleville, Ontario east to Kingston, the Main Line is a
three-track rail corridor allowing for trains to travel both east and west at
the same time and is the main rail line between Toronto and Montreal. CN owns
the property on which the Main Line operates;
(ii) CN carries every manner and type of rail freight
on the main line between Toronto and Montreal. This rail corridor is the one of
the busiest in the entire CN rail service. Materials carried by CN on this
portion of the Main Line include: steel, aluminum, food products (including
perishables), lumber, wheat and other grains, butane, propane, aviation fuel,
paper, finished automobiles, manufactured goods, electronics, parts and raw
materials for the automobile industry, and numerous other types of rail
freight;
(iii) CN trains are scheduled to travel eastbound and
westbound between Toronto and Montreal daily on the Main Line. CN operates an
average of eighteen commodity, mixed freight and container freight trains daily
over the Main Line between Toronto and Montreal, with nine westbound and nine
eastbound. These trains are typically 110 to 190 cars in length and each may
carry freight for 90 or more customers;
(iv) In addition, CN operates two trains daily, one
loaded and one empty, to carry fuel for Ultramar. These are dedicated trains of
about 70 cars in length. CN also operates one unit train per week on average of
about 100 cars carrying grain from the Prairie Provinces to eastern ports and
one empty grain train returning to the Prairies. In addition to the longer haul
trains, CN also operates five local freight trains which are based in
Belleville and Brockville, Ontario and which utilize the Main Line in the area
to serve customers in and between those communities;
(v) The value of the commodities CN handles utilising
the Toronto-Montreal corridor is over $80 million per day;
(vi) CN has operating
agreements with VIA Rail Canada Inc. ("VIA") for rail passenger
trains to run both east and westbound on the Main Line. There are twenty-four
VIA passenger trains that daily use this area of the Main Line with 14 trains
travelling between TorontoMontreal and 10 trains travelling between Toronto-Ottawa.
These trains are typically four to five coaches in length with one locomotive.
CN earns substantial revenue from VIA for handling their passenger trains.
B. The events of the blockade
[3] In his affidavit Mr. Albritton described the events
surrounding the blockade as follows:
16. I am advised by Shane
Genoway, CN Police Inspector, that:
(a) At or about 4:00 p.m.
on Saturday, January 5, 2013, he was advised that the Main Line was being
blocked by a number of individuals at Milepoint 209.03, at the Wymans Road
Crossing (the "Wymans Crossing"), in the Kingston Subdivision of the
Main Line;
(b) Wymans Road is a
paved road in the Mohawks of the Bay of Quinte/Tyendinaga Mohawks (the
"Tyendinaga First Nation") Reserve. The CN right-of-way for the
Main Line passes through
the Reserve at this point;
(c) At approximately 5:30
p.m. he attended at the Wymans Crossing. At that time, there were approximately
15 individuals blocking the Main Line (the "Blockade") by
intermittently walking across the rail line. The individuals he observed at the
Blockade all had their faces covered. The railway crossing had been activated
and there were fires on the north and south sides of the tracks, and a pickup
truck parked on the north side of the tracks;
(d) The individuals
participating in the Blockade refused to identify themselves to him, apart from
one specific individual who appeared to be the spokesperson. The spokesperson
gave his name but was difficult to understand due to the covering on his face.
It sounded like Dan Dorion ("Dan"). He asked Dan to repeat his name
but Dan refused;
(e) Dan advised him that
the reason for the Blockade was to show support for First Nations Chiefs in
their upcoming meeting with Prime Minister Stephen Harper, and that the
protesters did not have any issue with CN;
(f) He asked Dan how long
the Blockade would last and he was advised that it was "open ended"…
17. The Blockade is
preventing the movement of CN's and VIA's trains on the CN's Main Line and CN
has made the decision, in the interests of public safety, not to run any trains
through the Wymans Crossing until a court order is obtained, and steps are
taken to remove the blockade.
18. I am advised by Brent
Ballingall, CN's Aboriginal Affairs Manager ("Mr. Ballingall"), that:
(a) He has been in
contact with Chief Donald Maracle, Chief of the Tyendinaga First Nation. Chief
Maracle has advised that neither he nor the Council support the Blockade; and
(b) To the best of his
knowledge, the Tyendinaga First Nation has never advanced a land claim
concerning the Wymans Road Crossing, or any other CN crossing in Tyendinaga
territory.
C. The impact of the blockade
[4] The effects of the blockade were described by Mr.
Albritton in the following terms:
19. As of approximately
8:00 p.m. on January 5, 2013, five freight and intermodal (container) trains
are blocked, with approximately 125 cars each. A sixth train will be blocked by
approximately 10:00 p.m. on January 5, 2013. By 7:00 a.m. on Sunday, January 6,
2013, nine additional freight and intermodal trains will be held at Montreal or
Toronto due to the Blockade.
20. I am informed by
Denis Pinsonneault, Chief Operating Officer at VIA Rail ("Mr.
Pinsonneault"), as follows:
(a) As of 7:45 p.m. on
January 5, 2013, 4 passenger trains have been impacted (approximately 1,000
passengers). Buses have been deployed to begin moving these passengers to their
destination. However, the passengers will be significantly delayed and VIA will
incur significant costs and logistical difficulties rerouting the impacted
trains and passengers;
(b) If the Blockade
continues into Sunday, January 6, 2013, approximately 20 trains and 7,000
customers will be impacted. It is one of the busiest days of the year for VIA
travel on the Main Line. It would be impossible to mitigate the impact of the
Blockade on January 6, as there are not enough busses available to VIA to
reroute passengers; and
(c) If the Blockade
continues into Monday, January 7, 2013, approximately 27 trains and 3,000
customers will be impacted. This does not include a significant number of
commuters. Again, VIA would make efforts to mitigate the impact of the Blockade
by deploying busses, but would incur significant costs and logistical
difficulties rerouting the impacted trains and passengers.
21. The blockade will
cause significant economic damage to CN, its customers and others. There is a
Canadian Pacific rail in the vicinity, however, it is my understanding that the
Canadian Pacific rail line does not have the physical straightaway connections
or capacity to deliver more than a very small percentage of the traffic carried
on the Main Line. There is no other workaround to the Blockade.
22. All the eastbound and
westbound traffic between Toronto and Montreal will quickly become backlogged.
The result will be delays to customers which delays will exceed the time of the
actual blockade. This is because start up problems amount for every hour the
Main Line is blocked - customers simply cannot process two days' worth of
traffic in one day, resulting in further backlogs. In turn, this will produce 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.
23. 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 such as parts for the auto industry and the
fifteen tankers of jet fuel transported daily for Air Canada and other
airlines.
24. 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.
25. The blockade of CN's
train operations will also have a significant impact on CN's employees. CN
employs significant numbers of persons in immediate train service as crews, in
train and yard operations, as well as in the mechanical department who inspect
the trains and person in the engineering group who are responsible for
inspecting and repairing track. Toronto is the major distribution centre for
CN's system in Eastern Canada for the traffic to the United States, Montreal,
the Atlantic provinces, Western Canada and the rest of Ontario. A cessation of
rail service beyond even a day, will result in CN laying off some of these
employees.
26. The resulting impact
on CN's operations will cause irreparable harm to CN and others. Such harm
includes the following:
(a) the layoff of
employees as indicated above, as well as a loss of productivity associated with
disruptions;
(b) 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), lumber and forest products and manufactured
goods;
(c) increased yard
congestion at CN's facilities including increased costs of yard crew
activities;
(d) disruption of motive
power (engine) cycles from a normal balanced use and routings affecting CN's
operations; and
(e) loss of revenue to CN
and increased costs to CN's customers.
27. The scale and extent
of these losses would be extremely difficult, if not impossible, to quantify in
monetary terms.
[5] CN gave an undertaking as to damages.
III. The governing legal principles
[6] The test for
obtaining an interlocutory injunction is well known and was articulated by the
Supreme Court of Canada in RJR-MacDonald
Inc. v. Canada (Attorney General):
(i) The moving party must demonstrate a serious
question to be tried;
(ii) The moving party
must convince the court that it will suffer irreparable harm if the relief is
not granted. “Irreparable” refers to the nature of the harm, rather than its
magnitude; and,
(iii) The third branch of the test requires an
assessment of the balance of inconvenience. In addition to the damage each
party alleges it will suffer, the interest of the public must be taken into
account. The effect a decision on the application will have upon the public
interest may be relied upon by either party.1
[7] On an ex parte motion,
such as the one which CN brought, the court must also scrutinize the evidence
in light of the duty of a moving party to make full and frank disclosure of all
material facts, including putting before the court the arguments the responding
party likely would make, to the extent known by the moving party.
1 [1994] 1 S.C.R. 311.
2 2011 ONSC 6862
IV. Analysis
A. Serious question to be tried
[8] The evidence filed by CN demonstrated an
overwhelming case that the protesters were trespassing on its property and were
tortiously interfering with the use of the Main Line by itself and VIA. CN met
the first branch of the RJR-MacDonald test.
B. Irreparable harm
[9] To simply set out above the evidence of Mr.
Albritton about the impact of the blockade is to establish that the conduct of
the protesters had caused and would continue to cause irreparable harm to CN,
VIA and those who used the Main Line for personal and freight transportation.
C. Balance of convenience
C.1 The comparative harm to each
party
[10] On a standard analysis, the balance of
convenience overwhelming favoured CN. Simply put, the protesters had no legal
right to be doing what they were doing.
C.2 The issue of freedom of
expression
[11] That conclusion does not change because the
protesters, according to Mr. Albritton, contended that they were blocking the
Main Line to show support for First Nations Chiefs in their upcoming meeting
with Prime Minister Harper. While 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. The Canadian Charter of Rights and Freedoms does
not offer such protection, as I examined at length in Batty v. City of Toronto.2
C.3 The
identity of the protesters as members of a First Nation
[12] Nor does
that conclusion change because it appeared from the evidence that the
protesters were members of a First Nation making a statement on a matter of
current politics.
[13] Although in Henco Industries Ltd. v. Haudenosaunee Six Nations
Confederacy Council3 the Court of Appeal stated that when injunction motions involve
aboriginal communities, negotiation, not litigation, is the best way for the
country to reconcile the claims of aboriginal communities with the rights of
the Crown, that Court clarified, two years later in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation,4 that the “stage at which the comprehensive and nuanced
description of the rule of law expressed in Henco
must be considered is when a
court is requested by a private party to grant an injunction and where doing so
might have an adverse impact on asserted aboriginal and treaty rights affirmed
in s. 35 of the Constitution Act, 1982.”5
[14] On the evidence placed before me, the “highly
textured” or “nuanced” elements of the rule of law which the Court of Appeal
found are engaged in the circumstances of a section 35 land dispute had no
application to 15 people standing on the CN Main Line saying they were showing
support for First Nations Chiefs in a forthcoming meeting with the Prime
Minister. Such conduct had nothing to do with the process involved in sorting
out land or usage claims under section 35 of the Constitution Act, 1982; it was straight-forward political
protest, pure and simple. Just as 15 persons from some other group would have
no right to stand in the middle of the Main Line tracks blocking rail traffic
in order to espouse a political cause close to their hearts, neither do 15 persons
from a First Nation. For this reason, I would not regard the aboriginal
identity of the protesters or their message as immunizing them from the
standard balance of convenience analysis on a motion for an interlocutory
injunction.
3 (2006), 82 O.R. (3d) 721 (C.A.)
4 (2008), 91 O.R. (3d) 1 (C.A.)
5 Frontenac Ventures, para. 43 (emphasis added). Section 35(1) of the Constitution Act, 1982 provides: “The
existing aboriginal and treaty rights of the aboriginal peoples of Canada are
hereby recognized and affirmed.”
6 CNR v. Chief Chris Plain, 2012 ONSC 7356.
C.4 The question of the enforcement
of an injunction
[15] Let me turn to address one final matter which I
considered when deciding whether to issue the Injunction Order. We seem to be
drifting into dangerous waters in the life of the public affairs of this
province when courts cannot predict, with any practical degree of certainty,
whether police agencies will assist in enforcing court injunctions against
demonstrators who will not voluntarily cease unlawful activities, such as those
carried on by the protesters in this case. Just over two weeks ago, on December
21, 2012, I issued an injunction requiring First Nation protesters blocking a
CN Spur Line in Sarnia to remove "forthwith" their obstructions.6 To my astonishment, the local police failed to assist
in enforcing that order until January 2, 2013, under pressure from another
judge of this Court, a passage of almost two weeks. In that case, the failure
of a police agency to assist in enforcing a court order prompted me to query
whether, as a matter of the balance of convenience analysis, a court should
take into account the willingness of the local police agency to enforce a court
order:
[L]ocal police agencies
cannot ignore judicial orders under the guise of contemplating how best to use
their tactical discretion. Such an approach would have the practical effect of
neutering court orders. It is not the purpose of a court order simply to initiate
talks or consultations between the police and those whom the court has found to
have breached the law. A court order is not one amongst several chips to be
played in an on-going contest between the police and transgressors of legal
rights. On the contrary, a court order is intended to initiate the process of
bringing unlawful conduct to an end in a short period of time so that the harm
which the court has found to be irreparable is brought to an end.
…
[I]f those upon whom the
courts rely to enforce the law have decided, in effect, that the writ of the
courts does not run against particular groups or particular political messages,
and that disputes involving such groups or messages should be determined in
accordance with the respective strengths of the protagonists’ political wills,
then I do not see how courts can involve themselves productively in such
situations. Courts do not engage in contests of political wills. Under our
constitutional system courts are to remain outside such contests of political
wills.
…
As a judge, I make an
order expecting it will be obeyed or enforced. If it will not be enforced, why
should I make the order? An order which will not be enforced is simply a piece
of paper with meaningless words typed on it, and making a meaningless order
only undermines the authority and concomitant legitimacy of the courts.7
7 Ibid., paras. 38, 40 and 41.
[16] Turning to the
present case, that protesters could be allowed to block the Main Line at the
Wymans Crossing for five hours last Saturday before CN could get to court, a
mere week after a similar blockade of the Main Line had taken place in the
Marysville area, raised concerns in my mind about the willingness of the
relevant police agency to enforce the law. However, given the significant harm
being caused by the protesters’ activities, I granted the Injunction Order
requiring the blockade to be removed by 12:01 a.m. yesterday.
[17] The repeated applications by a major railway
owner to this Court in the past few weeks to secure injunctions to remove
blockades of their operating lines prompt the larger question of why, in these
sorts of circumstances, a property owner has to resort to the courts for a
remedy. Let me make two simple points.
[18] First, a judge of this Court cannot order a
police agency to enforce a civil court order, such as the kind of injunction
granted in this case. Section 141 of the Courts
of Justice Act8 provides:
8 R.S.O. 1990, c. C.43.
9 (1998), 38 O.R. (3d) 448 (C.A.).
141. (1) Unless an Act provides
otherwise, orders of a court arising out of a civil proceeding and enforceable
in Ontario shall be directed to a sheriff for enforcement.
(2) A sheriff who
believes that the execution of an order may give rise to a breach of the peace
may require a police officer to accompany the sheriff and assist in the
execution of the order.
As the Court of Appeal made clear in Ogden Entertainment Services v. United Steelworkers
of America, Local 440:
We are of the opinion
that there is no basis for directing the OPP to enforce an order arising out of
a civil proceeding. Unless a statute directs the contrary, such an order should
be directed to a sheriff for enforcement. In the present circumstances, there
is no statute directing the contrary. Where the enforcement of an order may
give rise to a breach of the peace, the sheriff may require a police officer to
assist in the execution. No order is required to gain this assistance.9
Nevertheless, as a practical matter, in situations of
public demonstrations, such as occurred in this case, the assistance of a
police agency is required if any hope exists to enforce an injunction order.
[19] That process unfolded in the present case. When I
learned Sunday from reading the news media that the blockade had ended earlier
in the morning, I asked plaintiffs’ counsel to submit an affidavit describing
how that had come about. According to the affidavit, the local sheriff had
received a copy of the Injunction Order by 10:30 p.m. Saturday night, within an
hour of its making. CN asked the sheriff to serve the Injunction Order on the
protesters at the blockade. The local sheriff advised that she then contacted
Ontario Provincial Police Staff Sergeant Scott Semple who was the officer on
scene at the blockade. S/Sgt. Semple stated that it was too dangerous to
attempt to serve the Injunction Order that night on the 15 protesters, but the
OPP would accompany the sheriff to the blockade to serve the Order first thing
Sunday morning. According to a January 6, 2013 email from OPP Inspector Pat
Finnegan, Detachment Commander, Napanee OPP Detachment, to plaintiffs’ counsel:
The court order was not
served. The protest ended shortly after 11:00 p.m. prior to our ability to
coordinate safe service of the order by the local sheriff.
[20] Saturday night I made a time-sensitive order
because the evidence showed that significant irreparable harm resulted from
each hour the blockade remained in place, yet the OPP would not
assist the local sheriff
to ensure the order was served by the time stipulated for the removal of the
blockade. Such an approach by the OPP was most disappointing because it
undercut the practical effect of the Injunction Order. That kind of passivity
by the police leads me to doubt that a future exists in this province for the
use of court injunctions in cases of public demonstrations.
[21] Which takes me to
the second point. I question why a landowner must resort to seeking a court
injunction to stop the sort of unlawful conduct engaged in by the protesters in
this case. It strikes me that the police enjoy adequate powers of arrest to
deal with the unlawful conduct without the further need of a court injunction.
[22] The evidence filed by CN raised questions as to
whether the protesters’ trespass on the Main Line possessed a criminal aspect.
Section 26.1 of the Railway Safety Act10 provides that “no person shall, without lawful excuse,
enter on land on which a line work is situated.” That Act defines a “line work”
to include a line of railway and a system of signals that facilitates railway
operations, but does not include a “crossing work”, which is a road crossing or
a utility crossing. Section 41(1) of the RSA
makes it an offence to contravene a provision of the Act:
10 R.S.C. 1985, c. 32 (4th Supp.).
41. (1) Every person who
contravenes a provision of this Act is guilty of an offence and liable
(a) on conviction on indictment,
…
(ii) in the case of an
individual, to a fine not exceeding ten thousand dollars or to imprisonment for
a term not exceeding one year, or to both; or
(b) on summary conviction,
…
(ii) in the case of an
individual, to a fine not exceeding five thousand dollars or to imprisonment
for a term not exceeding six months, or to both.
[23] The evidence also raised questions as to whether
the protesters’ obstruction of the Main Line possessed a criminal aspect.
Section 430(1) of the Criminal Code provides:
430. (1) Every one
commits mischief who willfully
…
(c) obstructs, interrupts
or interferes with the lawful use, enjoyment or operation of property; or –
(d) obstructs, interrupts
or interferes with any person in the lawful use, enjoyment or operation of
property.
Mischief in respect of property of a value of greater
than $5,000 is an offence punishable by indictment or summary conviction.
[24] As stated by the Court of Appeal in R. v. Mammolita on the issue of liability
for the offence of mischief:
A person may be liable as
a principal if he actually does or contributes to the doing of the actus reus
with the requisite mens rea… Accordingly, a person may be guilty as a principal
of committing mischief under s. [430](1)(c) if he forms part of a group which
constitutes a human barricade or other obstruction. The fact that he stands
shoulder to shoulder with other persons even though he neither says nor does
anything further may be an act which constitutes an obstruction. The presence
of a person in such circumstances is a very positive act. However, criminal
liability only results if the act is done wilfully. In determining whether
there is the requisite mens rea, one has to consider the extended definition
given to 'wilfully' by s. [429](1) of the Code…
It may not be very
difficult to infer that a person standing shoulder to shoulder with other
persons in a group so as to block a roadway knows that his act will probably
cause the obstruction and is reckless if he does not attempt to extricate
himself from the group…The same conclusion could be drawn where a person is
part of a group which was walking around in a circle blocking the roadway.
Those who are standing on the fringe of the group blocking the roadway may
similarly be principals if they are preventing the group blocking the roadway
from being by-passed.11
11 (1983), 9 C.C.C. (3d) 85 (Ont. C.A.), paras. 12 and 13.
12 For the definition of an indictable offence, see section 34(1) of the Interpretation Act, R.S.C. 1985, c. I-21.
13 R.S.O. 1990, c. T.21.
[25] Section 495(1) of the Criminal Code authorizes a peace officer to arrest without
warrant a person who, on reasonable grounds, he believes has committed or is
about to commit an indictable offence, or a person whom he finds committing a
criminal offence.12 Further, section 9(1) of the Trespass to Property Act13 authorizes a
police officer to arrest without warrant any person he or she believes, on
reasonable and probable grounds, to be on premises in contravention of section
2 of that Act – i.e. a person who refuses to leave premises immediately after
directed to do so by the occupier of the premises. In light of those powers of
arrest enjoyed by police officers, why does the operator of a critical railway
have to run off to court to secure an injunction when a small group of
protesters park themselves on the rail line bringing operations to a grinding
halt? I do not get it. The remedy to remove the unlawful conduct is apparent
and within the authority of the police.
[26] I acknowledge that in some respects the concept
of the rule of law possesses its own subtleties, textured-ness and nuances, but
in some fundamental respects it is quite simple – no person in Canada stands
above or outside of the law. Although that principle of the rule of law is
simple, at the same time it is fragile. Without Canadians sharing a public
expectation of obeying the law, the rule of law will shatter. And a key support
for maintaining that expectation of abiding by the law is that those who are
empowered to enforce the law will do so, and do so in an even-handed fashion.
As a member of one part of our system for the administration of justice, I
remain puzzled why another part – our police agencies and their civilian
overseers – does not make use of the tools given to it by our laws to “ensure
the safety and security of all persons and property in Ontario”, which is the
first of the principles directing the delivery of police services under the Police Services Act.14 I do not understand why the Main Line between Toronto
and Montreal had to remain shut for several hours while a rail operator rushed
off to court while the police simply stood by, inactive, and I do not understand
why a judge of this Court cannot predict with certainty whether a police agency
will assist in enforcing his or her court order. A simpler solution under the
law exists.
14 R.S.O. 1990, c. P.15.
V. Summary
[27] For these Reasons I granted the Injunction Order
sought by CN. That order was made on an ex
parte basis and therefore could only last for 10 days. It will
expire on January 15, 2013. Although CN brought its order on an emergency basis
in the Toronto Region of our Court, if CN intends to move to continue the
Injunction Order or take any other proceedings relating to it, CN must do so in
the Court’s East Region in which the blockade took place. CN should contact the
office of the Regional Senior Justice, East Region, in Ottawa, to make
arrangements for any further proceedings.
_____(original signed by)_________________
D. M. Brown J.
Date: January 7, 2013
APPENDIX
“A”
1. THIS COURT ORDERS
that the Defendants and each of them, and any and all persons having
knowledge of this Order, be and hereby are restrained and enjoined from
directly or indirectly, by any means whatsoever:
(a) trespassing on the Plaintiff’s railway
right-of-way at Milepost 209.03 at the Wymans Road crossing in the Kingston
Subdivision of the Plaintiff’s main railway line between Toronto and Montreal
(the “Main Line”), or anywhere between Milepost 200 to 220 in the Kingston
Subdivision of the Plaintiff’s Main Line, or anywhere else on the Main Line;
(b) physically preventing, impeding, restricting or in
any way physically interfering with, or counselling others to impede, restrict
or in any way physically interfere with, the Plaintiff’s carrying on of its
business and in particular its right to operate trains on the Main Line;
(c) physically preventing, impeding, restricting or in
any way physically interfering with, or counselling others to prevent, impede,
restrict or in any way physically interfere with the removal of any objects
from the Main Line or the maintenance, reconstruction or alteration of the Main
Line;
(d) threatening or intimidating the Plaintiff’s
employees, servants, agents or other persons having business with the
Plaintiff;
(e) physically interfering with or counselling others
to physically interfere with the performance by the Plaintiff of its
contractual relations with its employees, servants, agents or other persons
having business with the Plaintiff;
(f) physically obstructing or otherwise impeding, or
counselling others to physically obstruct or impede, the movement or operation
of the Plaintiff’s trains on the Main Line or anything connected with its
railway operations; and
(g) creating a nuisance by physically obstructing the
Plaintiff from carrying on its railway operations.
2. THIS COURT ORDERS
that the Defendants and each of them, and any and all persons having
knowledge of this Order, no later than 12:01 a.m. on Sunday, January 6, 2013,
remove any and all obstructions placed or created or imposed by them to the
Plaintiff’s full use of its lands, premises, facilities and equipment on the
Main Line.
3. THIS COURT ORDERS
that any police service or peace officer be and hereby is authorized
to arrest, or arrest and remove, any person who has knowledge of this Order and
who the police service or peace officer has reasonable and probable grounds to
believe is contravening or has contravened the provisions of this Order.
4. THIS COURT ORDERS
that any police service or peace officer who arrests or arrests and
removes any person pursuant to this Order be authorized to:
(a) release that person from arrest upon that person
agreeing in writing to abide by this Order and to appear before this Court at
such time and place as may be fixed for the purpose of being proceeded against
for contempt of Court or fixing a date for such proceeding;
(b) where such person has refused to give a written
undertaking to abide by this Order or to appear before this Court, or where in
the circumstances the peace officer considers it appropriate, to bring forthwith
such person before this Court in Toronto, Ontario, or such other place as the
Court may direct, for the purpose of being proceeded against for contempt of
Court or for fixing a date for such proceeding; or
(c) detain such person in custody until such time as
it is possible to bring that person before this Court.
5. THIS COURT ORDERS
that the terms of this Order shall remain in force until Tuesday,
January 15, 2013.
6. THIS COURT ORDERS that the Defendants and anyone with notice
of this Order may apply to the Court at any time to vary or discharge this
Order or so much of it as affects such person, but anyone wishing to do so
shall provide the Plaintiff’s solicitors with at least twenty-four (24) hours
notice thereof, and no such motion shall in any way excuse that person from
compliance with the terms of this Order.