In Enbridge Pipelines Inc. v. Jane Doe, the Applicant had an easement through a property for its gas pipeline. The protesters (according to their social media postings) opposed further construction on the pipeline, and occupied and refused to leave the property. The Applicant brought an ex parte (without notice) application for an interlocutory injunction prohibiting the protesters from occupying a work site on the property.
The Applicant argued i) that the work on the pipeline was an immediate safety concern, ii) that any delay caused by the protesters would have serious impact on its economic concerns (the supply of oil to its customers), and iii) that the Applicant’s property rights – the easement – were in a “privileged position”, and that a trespass to property rights is virtually always remedied by an injunction.
The Judge found with respect to i) that there was not an immediate safety concern, but with respect to ii) and iii) acknowledged that economic interests and property rights are important in the Canadian legal system. However, the Judge also raised the importance of the protesters’ competing right to expression. The Judge stated that there must be some reason other than the unilateral claim to property rights to deprive otherwise non-violent protesters the right to be heard – i.e. by being given notice of and the chance to participate in the hearing for the Application for the injunction.
The Applicant explained that the protesters were difficult to identify and that there was no organization on which to serve notice of the Application. Considering the difficulty of serving notice on the protesters, the Judge found that the possibility of substantial economic damage and the Applicant’s property rights were sufficient grounds for a short (one week) injunction on an ex parte basis. However, the Judge ordered that the Applicant would have to bring a motion to continue the injunction if it wanted the injunction to extend beyond the one week. The Judge ordered the Applicant to give notice of any such motion to continue the injunction to the protesters before they disbanded or in a way that was “likely to come to their attention.”
If you require legal advice on injunctions in Ontario, please contact us to arrange an initial consultation.
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