By Terrance Nelson
First Nation Roseau River Anishinabe
James Edmond,
I have received a letter from F.A. Lee Senior Master regarding costs for CN on the court case. Master Lee writes on July 16, 2013, "I invite the defendant Terrance Nelson as well as the plaintiff Canadian National Railway Company and the Attorney General of Manitoba to make their written submission as to costs in this matter. Written submissions should be addressed to my attention and submitted to the court no later than July 29, 2013."
Senior Master Lee
July 29, 2013
The decision regarding the defense presentation to the court was made by you on June 28th, 2013. You find that the defendants have no defence and dismissed all of our arguments leaving us to the mercy of the court as to costs.
CN is a 44 billion dollar company that can afford to hire the most expensive law firms in Manitoba. I did not have a lawyer, I represented myself. Lawyers in Manitoba are told that can lose their license to practise law if they give legal advice. supposedly, this means free legal advice. So unless individuals can afford $300 to $500 an hour to hire a good lawyer in Manitoba, they are left without representation or can simply forget about going to court altogether.
The following is my presentation as to the cost sought by CN. First of all, this is not a local matter wherein only one group or person participated in a railway blockade. This was an event that took a long time to get to this point. It is now 142 years since the signing of Treaty # 1.
My Mohawks friends have long advised me to forget about the courts, that there is no justice in the "whiteman" system of laws. Regardless, the purpose of going to court was to give the courts a chance to look at the Treaty. The decision has been made, CN's title is recognized by the courts and they can trespass on our lands without ever having to pay anything to the rightful owners, the indigenous people. The Federal Government of Canada has not been forced by the courts to meet with the Treaty land owners, despite the fact that various Federal governments since 1871 have all failed to fulfill the treaty obligations.
According to the courts, the immigrants to our lands can continue to live free of charge on our lands.
Now CN asks the court to award them more money, presumably because the indigenous people in court had the gall to ask, how did you get our land?
I submit to you a letter from the Attorney General of Canada dated May 23, 2006 wherein he writes that he will not convert lands for Roseau River. I was Chief at the time. Subsequently, I wrote to CN and CPR that I intended to blockade the railway lines on June 29, 2007. Both CN and CPR urged the Government by written letters to the Prime Minister to deal with the issue of Treaty.
I got a resolution passed by the Assembly of First Nations in December 2006 supporting the decision to blockade railway lines. Subsequently, in the spring of 2007, I had meetings with the then Minister of Indian Affairs Jim Prentice. We agreed to a five year moratorium on Roseau River railway blockades. As a show of good faith, Minister Prentice converted 74.8 acres of land for Roseau River on Highway Six in accordance with the Treaty Land Entitlement of 1996. He also committed to convert 600,000 acres of TLE lands in Manitoba in four years. It was not blackmail, it was simply the legal obligation. Still, the immigrants to our lands have over 99% of the land in Canada and make no payments to the indigenous people.
To date, Canada has said, they have converted 450,000 acres, mostly in northern Manitoba. Canada has converted zero acres for Roseau River since the 74,8 acres that was converted on June 13, 2007.
Nothing in what I did was covert, we did not hide, we were open and honest about our intent. Regardless, we are the owners of these lands. The federal government was not blackmailed into this, anymore than a landlord blackmails a lease holder to make payments and fulfill the terms and conditions of the lease. The Court has seen fit not to accept such a defence.
I kept my word, there were no railway blockades by Roseau River within the five year timeframe after the meeting with Prentice. Jim Edmond and CN were part of the undertaking in 2007. CN had plenty of time to put pressure on the government to fulfill the legal obligations that are Treaty commitments. They had more than five years to put pressure on the government to do the right thing.
We are not terrorists, everything we did, we did peacefully and we signalled the Government at every step.
You have decided that the government need not do anything, after 142 years, the Government of Canada can continue to do nothing on its legal obligations and CN and the immigrants to our lands are free to continue to take everything from the indigenous people and pay nothing.
As I stated in the July 18, 2006 letter to CN, (a copy of which is attached)
I want to thank you for your cooperation and your letter of concern to the Minister of Indian Affairs on this matter. I write to you today to continue to dialogue and seek your further intervention to resolve these matters of long standing.
While I thank you for your letter, I of course don’t agree with CN’s position that they are “an innocent third party” because we see clearly the billions and billions of dollars of resource wealth that CN transports every year from lands that the indigenous people have never relinquished or only gave conditional access to.
I am not a lawyer and the only related case law I was informed of was the following decision in Ontario
CN is taking all indigenous peoples who blockade railway lines to court and in many cases seeks to bankrupt the individuals with not only costs but damages. The courts however cannot protect the continued theft by immigrants of our lands and resources. The court can ignore in the CN vs. Nelson case, the 2,500 First Nation protestors that filled the streets of Winnipeg on a cold winter day protesting the way Canada treats our people and the court can ignore all the indigenous protest across Canada but no one can dismiss the fact that making me pay for court costs or damages, bankrupting me, or trying to intimidate the indigenous people does not resolve the fundamental issue, that the immigrants continue to deny who owns the lands and resources.
As Ezra Levant states in his opinion piece
"Sabotaging train tracks in Canada is shockingly common. One blockade by Aboriginal extremists near Belleville in 2007 stopped 25 freight trains and 22 passenger trains, causing an estimated $100 million in economic damage.
But you don’t have to go that far back; in a single, two-week period last fall, the CN rail lines in Ontario were tampered with seven times, according to police who say the suspects are unknown."
By refusing to deal with the rights of indigenous people in a timely fashion, a reasonable time frame and awarding the Federal Government for negligence, the issue of railway blockades will not be resolved by courts.
I have no money to pay the costs of courts, to give to lawyers who already are the most expensive in Manitoba or to pay to a 44 billion dollar company. I maintain regardless of the court decision, that we continue to deal with theft, the theft of our lands and resources. In the last six years since the 2007 undertaking between Jim Prentice and myself, CN has transported hundreds of billions of dollars if not trillions worth of stolen resources. To get a few more dollars from me and to bankrupt me for confronting the theft only rewards the continued colonial thinking in Canada.
I have maintained an open dialogue and never did covert damage to CN or CPR or any pipelines. The courts in bankrupting First Nations people by awarding CN and the Government with costs and damages and putting no legal pressure whatsoever on Government to deal with the Treaty issue brings the courts in disrepute. The Immigrant Governments set up the courts, they finance the courts, if the courts are not a forum free to examine the legal obligations of both parties to Treaty and awards only one side, the Canadian court system invites international contempt by their own one sided decisions.
The Plain decision shows a pattern of future interaction between the courts and the First Nations people. By awarding costs and damages to CN, the courts side with only side.
I have submitted for you the history of letters and efforts to get Canada to do the right thing. We did not have to blockade, if Canada had done the right thing. We gave them time, they did nothing and now are rewarded for doing nothing. Now the courts, CN, the Government all act as if we the indigenous people are the only culprits and that they (the immigrants) have no choice.
Terrance Nelson
DOCUMENTS
ROSEAU RIVER ANISHINABE FIRST NATION GOVERNMENT
P.O. Box 30, GINEW, Manitoba R0A 2R0
(204) 427-2312 FAX: (204) 427-2584
(204) 427-2312 FAX: (204) 427-2584
December 12, 2006
Mr. E. Hunter Harrison
President and Chief Executive Officer
Canadian National Railway
935 de La Gauchetiere Street West
Montreal Quebec Canada H3B-2M9
Dear Mr. Harrison
Re: June 29th 2007 National Day of Protest
On June 19th 2006 and on July 28th 2006, you sent Minister Jim Prentice letters urging him to work with First Nations, “to avert the Manitoba First Nations’ threatened rail blockade.” It is extremely unfortunate that the letters sent to the federal government of Canada, both to Minister Prentice and Prime Minister Harper, have had no effect in settling issues with Roseau River Anishinabe First Nation or some of the First Nations involved in these matters.
Please see attached a (November 27th 2006) letter to Minister Prentice which I believe that I sent to you a copy. Please note the following quote from that letter
“On Tuesday December 5th 2006, there will be a protest on Parliament Hill by First Nations during the AFN summit. This has been organized by Ontario Chiefs. At the same time, at this summit, I will introduce a resolution for the Chiefs in assembly to support a national railway blockade set for June 29th 2007. This time I must go through with it. I value my word of honour more than anything else. I regret listening to you when you asked for more time.”
I find it extremely sad that both Prentice and Harper ignored your letters and the letter from CPR. They did nothing to avoid further action on the part of First Nations. A resolution was moved by me, seconded by Rolling River at the national Assembly of First Nations summit in Ottawa on December 6th 2006. As you can see from the attached, the resolution calls for a National Day of Protest including blocking railway lines throughout Canada. The resolution was passed overwhelming (over 95%) by Chiefs from across Canada. Once again, we are forced to call for economic repercussions for the failure of the Canadian government to fulfill their lawful obligation on indigenous property rights. A national day of protest is set for June 29th 2007.
In my letter to you (July 18th, 2006), I warned you that this had the potential to escalate beyond my control. “Prentice delivered a speech on Thursday July 13th to over 400 Chiefs at the Assembly of First Nation summit in Vancouver, it was a tough sounding speech, that didn’t go over well with the Chiefs. I can tell you that if Roseau River blockades, it will quickly escalate to a national crisis as other First Nations across Canada are angry enough to do the same.”
The evidence that other First Nations across Canada are “angry enough” is the passing of the resolution by an overwhelming majority of Chiefs at the national summit. It seems that the Conservative government is geared for a fight with First Nations, one that is heading towards severe economic consequences. We know that in Canada, that First Nations will not win a public relations campaign against the Conservative Party machine so we will initiate a public relations campaign in the United States. If they will not listen to corporations like CN, CPR or Enbridge, perhaps they may listen to the Americans.
According to the Wikipedia internet encyclopedia US investment in Canada even seven years ago (1999) was critical to the Canadian economy.
“The U.S. is Canada's largest foreign investor; at the end of 1999, the stock of U.S. direct investment was estimated at $116.7 billion, or about 72% of total foreign direct investment in Canada. U.S. investment is primarily in Canada's mining and smelting industries, petroleum, chemicals, the manufacture of machinery and transportation equipment, and finance.
Canada is the third-largest foreign investor in the United States. At the end of 1999, the stock of Canadian direct investment in the United States was estimated at $90.4 billion. Canadian investment in the United States is concentrated in manufacturing, wholesale trade, real estate, petroleum, finance, and insurance and other services.”
I have met with members of the Seminole Tribe in Florida and with the Pequots in Connecticut, two very powerful and wealthy American Indian Nations with casinos. The Pequot representative who attended the AFN summit stated that their gross profit was $1.3 billion last year and just last week, the Seminoles were in the news buying Hard Rock Cafes for $965 million. I will be asking them to support us in our bid to tell the Americans what the Canadian government is doing against the human rights of indigenous people in Canada.
If you are serious about avoiding railway blockades, perhaps you can help us, by giving us the financial implications of a one-day national blockade and the compounding economic consequences of a month long blockade. If the Conservatives won’t listen to you or me, maybe they will listen to the Americans.
Sincerely
Chief Terrance Nelson
DOCUMENTS
ROSEAU RIVER ANISHINABE FIRST NATION GOVERNMENT
P.O. Box 30, GINEW, Manitoba R0A 2R0
(204) 427-2312 FAX: (204) 427-2584
(204) 427-2312 FAX: (204) 427-2584
July 18, 2006
Mr. E. Hunter Harrison
President and Chief Executive Officer
Canadian National Railway
935 de La Gauchetiere Street West
Montreal Quebec Canada H3B-2M9
Dear Mr. Harrison
Re: CN’s letter to Minister Prentice
Your letter of June 29th 2006 to Minister James Prentice is as follows.
“Dear Minister
As we have conveyed to you in our June 19, 2006 letter, CN was quite concerned with Manitoba First Nations' plan to blockade, June 29, 2006, our railway lines to "force the Canadian Government to establish a reasonable time-frame for settlement of land claims".
CN stated publicly that it has no authority to resolve these issues and urged First Nations to pursue alternative dispute-resolution mechanisms with the Government to spare innocent third parties and the Canadian economy needless and irreparable harm.
We understand you have engaged in a dialogue with representatives of First Nations with a view of improving and expediting the settlement of their specific claims. This dialogue has contributed to the peaceful resolution of this issue. We are grateful for the leadership you have shown in this matter and encourage you to continue to work with the First Nations in a spirit of cooperative dialogue to improve the land claims settlement system.”
Signed by E. Hunter Harrison
I want to thank you for your cooperation and your letter of concern to the Minister of Indian Affairs on this matter. I write to you today to continue to dialogue and seek your further intervention to resolve these matters of long standing.
While I thank you for your letter, I of course don’t agree with CN’s position that they are “an innocent third party” because we see clearly the billions and billions of dollars of resource wealth that CN transports every year from lands that the indigenous people have never relinquished or only gave conditional access to.
We do not condone violence and regret the use of economic threats. However despite the fact that indigenous peoples and governments have won at least six major decisions of the Supreme Court of Canada recognizing aboriginal title and treaty property rights, there is still no avenue to enforce those legal decisions upon Canada. They simply ignore the law when the law is against them. Who then enforces the law upon the white man?
The use of railway blockades has been understood since before the 1990 Oka crisis. In fact, I wrote five books, two of those books Genocide in Canada and Okiijida the Warrior Society include railway blockade information. These books were published in 1997, so I have been public about this issue for some time. There has never been any conspiracy or secret intentions on where we stand on this matter.
I backed off on the railway blockade set for June 29 because I am a chief who has to think for the best interest of the community. Minister Prentice phoned and asked for time and a meeting to discuss these matters. We had that meeting with Prentice on July 4th in Calgary. It was frank and open, but we at least talked on the issues.
I am under a lot of pressure. My creditability is now suspect because I had stated that we would blockade on June 29th. I broke my word because I felt that for the best interest of Roseau River, we must once again give the white man another chance. Minister Prentice is also under a lot of pressure. The choice is whether we negotiate without any “irreparable damage” to the Canadian economy or negotiate during a blockade.
I ask you to continue to pressure the government of Canada to live up the law. They cannot continue to steal our resource wealth without compensation or meaningful negotiation with the original owners of those lands and resources. CN hauls billions of dollars of resources every year. You know more than anyone that the consequences of blockades are far reaching. The image of Canada as a stable country to invest in will be damaged but more importantly, the stock market will re-act far worse then they did during the Chiapas crisis in 1994.
If I don’t hear back from Prentice soon with some written commitments, I must report back to my people that we have to take action to enforce our rights. Prentice delivered a speech on Thursday July 13th to over 400 Chiefs at the Assembly of First Nation summit in Vancouver, it was a tough sounding speech, that didn’t go over well with the Chiefs. I can tell you that if Roseau River blockades, it will quickly escalate to a national crisis as other First Nations across Canada are angry enough to do the same.
Sincerely
Chief Terrance Nelson
204-782-4827
ROSEAU RIVER ANISHINABE FIRST NATION GOVERNMENT
P.O. Box 30, GINEW, Manitoba R0A 2R0
(204) 427-2312 FAX: (204) 427-2584
(204) 427-2312 FAX: (204) 427-2584
July 18th 2006
President Roland Bilodeau
Canadian Pacific Railway
Suite 1110
81 Metcalfe Street
Ottawa, Ontario, Canada
K1P-6R9
Dear CPR President Bilodeau
Re: CPR letter to Minister Prentice
Your June 29th letter to Minister Prentice is as follows.
“As a follow-up to my conversation of June 27, 2006 with your Associate Deputy Minister, Ms. Suzanne Tining, I am writing to express our hopes for you and Chief Nelson to come to a near-term understanding regarding the outstanding historic issues between the Federal Government and First Nations.
We operate over 14,000 miles of rail lines on a network extending from Montreal to Vancouver in Canada and throughout the U.S. Midwest and Northeast. Our lines run through thousands of communities. Therefore, as we have been doing for many years, it is essential that we continue to promote a culture of positive, mutually beneficial, and trusting relationships with First Nations.
We would appreciate any action you could take that would facilitate the preservation of our productive and respectful relationships with First Nations.”
Please find attached a letter to CN’s President E. Hunter Harrison. The letter to CN explains most of what we discussed with your representatives Rick Poznikoff and Scott S. MacDonald in our meetings with CPR. I want to thank CPR and your representatives for your kind attention and non aggressive stance on this matter. It seems CPR has learned some valuable lessons from the 1990 Oka crisis wherein several of your railway lines were blocked by First Nations in Ontario. Due to the experience of your representatives, we were able to exempt CPR from the planned blockade.
We now need your help and the help of business leaders in this country to pressure the government of Canada to live up to the law. First Nations cannot live at the UN’s 63rd level of human index scale while the immigrants to our lands live at the top level.
We have met with Minister Prentice and have not heard back from him since our meeting. At some point soon, we will have to take action. Once that is done, there is no turning back the clock.
You know the consequences, and so do I.
Sincerely
Chief Terrance Nelson
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Canadian National Railway Company v. Plain, 2013 ONSC 4806 (CanLII)
Date:
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2013-07-23
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Docket:
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CV-12-6939
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URL:
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http://canlii.ca/t/fzs70
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Citation:
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Canadian National Railway Company v. Plain, 2013 ONSC 4806 (CanLII),
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Noteup:
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Reflex Record
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CITATION: Canadian National Railway Company v. Plain, 2013 ONSC 4806
COURT FILE NO.: CV-12-6939
DATE: 230713
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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Canadian National Railway Company
Plaintiff
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Chief Chris Plain, The Chippewa of Sarnia First Nation Band, John Doe and Persons Unknown
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Christopher D. Bredt and Heather K. Pressione, for the Plaintiff
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Peter Rosenthal, Michael A. Leithold, Christopher Reid, for Ron Plain (the alleged contemnor)
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Defendants
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HEARD: June 24, 2013 at Sarnia
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DECISION ON CONTEMPT MOTION
THOMAS J.
1. BACKGROUND
[1] This decision on the issue of potential contempt related to the action of Ron Plain (Plain) follows my decision released June 10, 2013 which dismissed Plain’s application for extensive disclosure from the Plaintiff, Canadian National Railway Company (CN).
[2] The history of the proceeding was recounted there and will not be duplicated. There are additional facts, however, that relate to the contempt and an appropriate sanction. As previously mentioned, this motion for contempt was before Desotti J. on January 2, 2013 at which time he encouraged Plain to assist in the dismantling of the railway blockade and otherwise ordered him to stay away from the CN Spur Line except for normal travel.
[3] On January 4, 2013 the matter was back before Desotti J. and counsel for CN as well as Plain personally attended. While the protest had ended and the blockade dismantled, it was clear the CN was not abandoning its contempt application and that it sought costs against Plain and a permanent order prohibiting his attendance near the Spur Line. At that time counsel for CN offered to resolve the application for costs of $5,000. Plain refused to agree and indicated his intention to continue to contest any finding of contempt.
[4] The motion was adjourned to February 1, 2013 and then to May 24, 2013 when the disclosure motion was argued. At that time Plain had the benefit of counsel, Mr. Rosenthal and Mr. Leithold. On June 24, 2013 this contempt motion and the issue of the appropriate sanction was argued before me. The parties agreed that I could determine all remaining issues on the affidavit material filed and their oral submissions, without cross-examinations.
[5] Mr. Rosenthal filed an affidavit of Plain which acknowledged his presence at the protest site on December 22, 2012, the day after it began and the day after the granting of the exparte injunction by Brown J. It is clear from the affidavit that at least by December 24, 2012 Plain had knowledge of the court order. He continued to attend the blockade but his acknowledged role was that of protest spokesperson. His affidavit confirms that after his attendance before Desotti J. on January 2, 2013 he convinced the protesters to abandon the site and the blockade has not resumed since. It seems that Plain was surprised that CN would continue its contempt application after the protest ended and in his affidavit he undertakes not to obstruct or impede or counsel others to obstruct or impede the CN Spur Line.
[6] The material filed describes the financial impact of the blockade upon CN, its corporate customers in Sarnia’s “chemical valley”, and upon the public through lost profits and temporary lay-offs as production necessarily declined.
[7] CN’s counsel has appeared before this Court in Sarnia on four occasions with witnesses present on three of those. The legal costs to CN of this contempt motion are in excess of $100,000. Mr. Bredt has now filed bills of costs for these Sarnia proceedings totalling $74,699.48 for substantial indemnity costs.
[8] I am advised that CN, upon a finding of contempt, seeks a costs order against Plain of $50,000, payable in six months, together with the continuing order that he not go within 100 feet of the Spur Line except for normal travel. CN undertakes to forward all costs collected to its aboriginal scholarship program and invites me to make that part of my order.
2. THE FINDING OF CONTEMPT
[9] Mr. Rosenthal upon the filing of the Plain affidavit has taken the position that while not consenting to a finding of contempt neither would he argue against it. Plain’s affidavit itself provides the necessary evidence of knowledge of the court order and continued participation in the face of it, both by personal attendance on the Spur Line, and by acting as the spokesperson for the protest. The other material filed by CN provides evidence of Plain not only describing the blockade in his conversations with the press and his internet postings but also encouraging others, post-injunction, to join in the blockade itself. These public statements clearly acknowledge the economic effects of the protest on CN and its customers.
[10] There is, in my view, ample evidence to prove beyond a reasonable doubt that Plain openly defied the court order of Brown J. and did so with knowledge that it bound him and I make that finding.
3. THE APPROPRIATE SANCTION
(a) POSITION OF THE PARTIES
[11] Mr. Bredt, on behalf of CN, seeks costs as described above, together with the continuing order keeping Plain away from the Spur Line.
[12] He argues that the continuing order of non-attendance is necessary to ensure that Plain will not further participate in a similar protest, assist in having police enforce the order if necessary, and circumvent the need for CN to add Plain to the action to control his future activity.
[13] Mr. Bredt urges this Court to view the costs sanction as compensatory and not punitive. He suggests that I need to assess the aggravating and mitigating factors present and that I should do so with the benefit of the factors set out in paragraph 69 in the decision of Ferrier J. in Boucher v. Kennedy [1998] O.J. No. 1612 (Gen. Div.) (Boucher).
69. Without limiting the factors that the court may take into account in deciding the amount of a fine to impose for contempt, I am of the view that the court should consider in addition to the nature of the contemptuous conduct, the following:
(1) whether the contemnor has admitted the breach;
(2) whether the contemnor has demonstrated a full acceptance of the paramountcy of the rule of law, by tendering a formal apology to the court;
(3) whether the breach was a single act or part of an ongoing pattern of conduct in which there were repeated breaches;
(4) whether the breach occurred with the full knowledge and understanding of the contemnor that it was a breach rather than as a result of a mistake or misunderstanding;
(5) the extent to which the conduct of the contemnor displayed defiance;
(6) whether the order was a private one, affecting only the parties to the suit or whether some public benefit lay at the root of the order;
(7) the need for specific and general deterrence;
(8) the ability of the contemnor to pay.
[14] Finally, he reminds me that this was not a protest regarding an aboriginal land claim but rather a political protest in support of Chief Spence and the “Idle No More” movement and therefore I should be careful in applying the reasoning set out in other cases which advocate a nuanced approach recognizing the complex relationship between the Crown and aboriginal persons (Frontenac Ventures Corporation v. Ardoch Algonquin First Nation, 2008 ONCA 534 (CanLII), 2008 ONCA 534 at para. 68 (Frontenac)).
[15] Mr. Rosenthal, on behalf of the contemnor, urges me to recognize the role of his client as the spokesperson, not the leader of this protest. He reminds me that the efforts of Plain on January 2, 2013 caused the dismantling of the blockade and should significantly mitigate any costs sanction. He suggests that CN’s position on costs can only be seen as punitive and as such the principles discussed in Frontenac are clearly applicable. It is therefore important to craft a sanction that recognizes the historical disadvantage of aboriginal peoples and seeks to engage and not further alienate. He points to paragraph 54 of Frontenac.
[54] All of these factors ought to have been considered by the motion judge when fashioning appropriate sanctions for their acts of contempt. Another way of saying this is that the sentencing principles articulated by the Supreme Court of Canada in R. v. Gladue 1999 CanLII 679 (SCC), 1999 CanLII 679 (SCC), (1999), 133 C.C.C. (3d) 385, are applicable when fashioning a sentence for civil or criminal contempt on the part of aboriginal contemnors.
[16] As in Frontenac, I am urged to find appropriate a monetary sanction in a nominal amount of no more than $1,000. In coming to that amount Mr. Rosenthal asks me to take into account the personal means of his client Plain.
[17] Mr. Plain is 51. He was earning $42,000 annually as an environmental policy analyst with the Southern First Nations Secretariat but is presently off work due to a neck injury. He has been without income since May 21, 2013 and is awaiting a decision on his disability benefits. He is the main source of support for his wife and two children. They own a home, but it is heavily mortgaged. Clearly, he has limited ability to pay any costs order. Finally he suggests that there is no need to restrict his client’s access to portions of the First Nations community adjoining the CN line considering Plain’s assistance in determining the protest and the lack of obstruction since.
(b) ANALYSIS
[18] “The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect” (United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901 para. 50).
[19] CN requests this Court to enforce the injunctive relief granted by Brown J. by motioning for a finding of civil contempt pursuant to Rule 60.11 of the Rules of Civil Procedure, R.R.O. 1990, Regulation 194. Rule 60.11(5) provides the following available orders on a finding of contempt:
Content of Order
(5) In disposing of a motion under subrule (1), the judge may make such order as is just, and where a finding of contempt is made, the judge may order that the person in contempt,
(a) be imprisoned for such period and on such terms as are just;
(b) be imprisoned if the person fails to comply with a term of the order;
(c) pay a fine;
(d) do or refrain from doing an act;
(e) pay such costs as are just; and
(f) comply with any other order that the judge considers necessary, and may grant leave to issue a writ of sequestration under rule 60.09 against the person’s property.
[20] Discretion lies in the motions judge to craft a just order in the circumstances.
[7] “The choice of appropriate penalty for contempt must recognize the important distinction between civil and criminal contempt: the purpose of a sentence for criminal contempt is punishment, whereas the purpose of a sentence for civil contempt is coercive or persuasive, designed to enforce the rights of a private party: Frontenac Ventures Corp. v. Ardoch Algonquin First Nation 2008 ONCA 534 (CanLII), (2008), 91 O.R. (3d) 1 (C.A.), para. 37.”
(Mercedes-Benz Financial (DCFS Canada Corp.) v. Kovacevic, [2009] O.J. No. 888 (S.C.J.) para.7).
[21] Fundamental to this decision is the recognition that CN has abandoned any claim for a sanction beyond an order keeping Plain from the Spur Line and compensation in costs. Perhaps this position is borne from the recognition that Plain substantially purged his contempt by convincing the protesters to withdraw from the rail tracks on January 2, 2013; perhaps as well it is reflective of the content of paragraph 9 of Plain’s affidavit set out below.
9. I undertake not to obstruct or impede or counsel others to obstruct or impede CN’s operation of its St. Clair River Industrial Spur Line.
[22] Certainly I have no evidence that since January 2, 2013 any persons have inhibited travel on these CN tracks. In the face of CN’s position, and the circumstances considered above, I have no reason to consider any graver sanction than that presently sought.
[23] I recognize that Rule 60.11(5), as well as the Court’s inherent jurisdiction to enforce its own orders, would allow me to keep Plain 100 feet away from CN’s St. Clair Industrial Spur Line. His actions prior to January 2, 2013 might justify that sanction but since that time his conduct has only mitigated the effects of his earlier breach. The injunction granted by Brown J. remains in effect. CN continues to prosecute its action.
[24] If, in the face of what Plain has done since January 2, 2013 CN chooses to apply to add him to the action to insure his future good conduct it is free to do so. I am not content that the continuing restraining order is necessary or “just” within the meaning of Rule 60.11(5) and I decline to continue the order. The order granted by Desotti J. January 2, 2013 and continued from time to time will expire upon the release of these reasons.
[25] That leaves me to consider the matter of costs. Rule 60.11(5) allows me to direct the payment of “such costs as are just”. I agree with Mr. Bredt that normally the exercise of assessing costs is compensatory and not punitive.
[26] Costs here are being sought in the context of civil contempt, and as part of the sanctions available in Rule 60.11, the rule that must be applied in this motion. Costs are always available in a proceeding. I conclude therefore, that there must be some reason why “just costs” are specifically enumerated in Rule 60.11(5)(e).
[27] In my view costs here are a variation on the normal practice. While arguably compensatory, they carry as well a further purpose. Costs after a finding of contempt are meant to be coercive (McClure v. Backstein, [1987] O.J. No. 498 (H.C.J.) page 4). I find confirmation of that position by the recognition that costs after a finding of civil contempt are, as a rule, assessed on a substantial indemnity basis. (West Lincoln (Township) v. Chan, [2001] O.J. No. 2133, para. 42; York (Regional Municipality) v. Schmidt, [2008] O.J. No. 4915 (S.C.J.) para.23).
[28] In addition I am aware that substantial indemnity costs have been ordered in “flagrant and intentional breaches of court orders”. (SNC-Lavalin Profac Inc. v. Sankar, [2009] O.J. No. 365 (C.A.) para.19).
[29] I conclude that, along with an assessment of the nature of the contemptuous conduct I must consider the factors set out in Rule 57.01 resulting in a hybrid analysis. I do not believe the determination of Rule 60.11 costs was meant to exclude the usual costs considerations. The Ontario Court of Appeal has provided guidance regarding the fixing of quantum of costs, in the 2004 decision of Boucher v. Public Accountants Council for the Province of Ontario 2004 CanLII 14579 (ON CA), (2004), 71 O.R. (3d) 291 (TAB 2), where Armstrong J.A. stated:
Subrule (1) lists a broad range of factors that the court may consider in exercising its discretion to award costs under s.131 of the Courts of Justice Act, R.S.O. 1990, c. C.43. The express language of Rule 57.01(3) makes it clear that the fixing of costs is not simply a mechanical exercise. In particular, the rule makes clear that the fixing of costs does not begin and end with a calculation of hours times rates. The introduction of a costs grid was not meant to produce that result, but rather to signal that this is one factor in the assessment process together with the other factors in Rule 57.01. Overall, as this Court has said, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.
The Rules were subsequently amended to reflect this reasoning.
[30] In fixing a fair and reasonable amount in this case I must consider the terms of Rule 57.01(e), (f), and (g).
(e) the conduct of any party that tended to shorten or to lengthen unnecessarily the duration of the proceeding;
(f) whether any step in the proceeding was,
(i) improper, vexatious or unnecessary, or
(ii) taken through negligence, mistake or excessive caution;
(g) a party’s denial of or refusal to admit anything that should have been admitted;
[31] It is important to me that at a step in this proceeding the contemnor not only attempted to purge his contempt but that of others not specifically being prosecuted. It is true he failed to accept what I view as a reasonable costs offer on January 4, 2012 but then retained counsel.
[32] Unfortunately, the next proceeding was an application for extensive disclosure in a doomed attempt at a collateral attack on the injunction. As a result of my negative ruling on that motion, Plain did not dispute a finding of contempt and allowed for a limited argument on the material filed related to the quantum of appropriate costs and the personal restraining order. Beyond the disclosure motion I find nothing of Plain’s position before me to be vexatious or unnecessary.
[33] Also in fixing fair, reasonable and just costs I must consider the contemnor’s aboriginal status and the context of this blockade. I am aware as was Brown J. that this obstruction of the CN St. Clair Spur Line was an exercise of “expressive freedoms” (D.M. Brown J., Reasons for Injunction Decision, December 21, 2012, para. 19) and not a protest in the midst of a land claims dispute as was the case in Frontenac. However I conclude that I must while attempting to promote lawful conduct through costs, recognize the mitigating factors some of which I mentioned previously.
[34] This was a brief, yet flagrant, breach of a court order in a peaceful protest which caused no property damage. My costs order should be capable of being seen as fair, reasonable and just to an aboriginal offender of limited means who chose to act as the visible spokesperson of a protest that openly defied a court order. I believe in doing so I am also considering the factors discussed by Ferrier J. in Boucher, although I recognize at the time he was determining the quantum of a fine.
4. CONCLUSION
[35] In attempting to balance all the factors considered above I conclude that costs are payable to CN by Ron Plain in the amount of $16,584.87. I come to that amount by adding the reasonable offer of costs of $5,000 made by Mr. Bredt to Plain on January 4, 2013 to the substantial indemnity costs of CN on the disclosure motion (being $11,584.87).
[36] I decline to limit CN’s ability to enforce this costs order and so the costs are payable forthwith. Further I recognize CN’s undertaking to pay any collected costs into its aboriginal scholarship program. While a laudable position I do not intend to endorse it by making it part of my order. It is up to CN what it chooses to do with its costs particularly in light of its argument that they should be seen as compensatory.
[37] Finally, as mentioned previously, any restrictions on Plain’s mobility as a result of the continuation of the terms of the order of Desotti J. are terminated upon the release of these reasons.
Original Signed “B. Thomas”
Bruce G. Thomas
Justice
Released: July 23, 2013
CITATION: Canadian National Railway Company v. Plain, 2013 ONSC 4806
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DECISION ON CONTEMPT MOTION
Bruce G. Thomas
Justice
|
Released: July 23, 2013
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