Siksika Nation v Crowchief, 2016 ABQB 596

Court of Queen’s Bench of Alberta Citation: Siksika Nation v Crowchief, 2016 ABQB 596 Date: 20161021 Docket: 1601 11595 Registry: Calgary Between: Siksika Nation, As Represented by Its Chief and Council Applicant - and - Ben Crowchief and Unknown Defendants Respondents _______________________________________________________ Interlocutory Injunction Reasons for Judgment of the Honourable Madam Justice S.L.

Hunt McDonald _______________________________________________________ Introduction [ 1 ] The Applicant, Siksika Nation, as represented by its Chief and Council, filed a Statement of Claim seeking an interlocutory injunction and damages against the Respondent, Ben Crowchief, along with one or more members of the Siksika Nation (the “Unknown Defendants”) (together the “Respondents”), for interfering with the Applicant’s efforts to re-build homes at the Cluny Subdivision (defined below), an on-reserve residential development.

This Application is for interlocutory injunctive relief. [ 2 ] The Siksika Nation reserve is located near the town of Gleichen, Alberta, and has approximately 6,000 members. In 2013, many homes on the Siksika Nation reserve were damaged or destroyed by the extensive flooding of the Bow River (the “2013 Flood”). During and after the 2013 Flood many members of the Siksika Nation lost their homes (the “Evacuees”). Many of the Evacuees remain displaced today and are still housed in temporary facilities.

Facts Relied on by the Siksika Nation [ 3 ] On November 7, 2013, the Applicant and the Government of Alberta (the “Province”) entered into a Memorandum of Understanding (“MOU”), which outlined how the Province and the Applicant would work together to rebuild the homes affected by the 2013 Flood (the “2013 Flood Rebuild Plan”). [ 4 ] Under the terms of the MOU, the Applicant is obligated, amongst other things, to develop a flood recovery housing plan that would see flood damaged homes rebuilt in areas that had not been historically predisposed to flooding. [ 5 ] On September 1, 2015, the Applicant and the Alberta Social Housing Corporation (the “ASHC”) entered into an agreement for the demolition and construction of homes in Phase 2 (the “Cluny Subdivision”) (the “Cluny Subdivision Project”).

The ASHC, as an agent on behalf of the Province, agreed to pay $14,677,355 toward the Cluny Subdivision Project. [ 6 ] The Cluny Subdivision was specifically selected by the Applicant as an appropriate rebuilding site because it was: (

a) an area that had not been historically predisposed to flooding; (

b) located in close proximity to existing infrastructure; (

c) a cluster-type development plan, which would allow for cost reductions in developing infrastructure; (

d) an area previously designated for residential development; (

e) the subject of a previously commissioned environmental assessment report; (

f) proximate to the Crowfoot School, the Siksika Health Centre, and other social services; and (

g) proximate to the original locations of the flooded communities of Washington and South Camp. [ 7 ] Under the terms of the MOU, the Province has committed approximately $45 million to the 2013 Flood Rebuild Plan (the “Funds”). The Funds are provided on a reimbursement model. The Funds are meant to reimburse the Applicant for the costs associated with the Cluny Subdivision Project, which includes some 44 homes thereon, as well as the remainder of the 2013 Flood Rebuild Plan.

The Funds will not be available after March 31, 2018; the Province has advised the Applicant in writing that an extension will not be granted.

The Contract with Whissel Contracting Ltd. [ 8 ] On September 25, 2015, the Applicant entered into an agreement (the “Agreement”) with Whissel Contracting Ltd. (the “Contractor”) for the construction of the Cluny Subdivision Project. [ 9 ] Pursuant to the Agreement, the Contractor agreed to furnish all of the materials, together with all of the equipment, products, labour, and transportation necessary to perform the work described in the Agreement on or before October 31, 2015 (the “Work”).

The Blockade [ 10 ] On November 4, 2015, the Respondent and an unknown number of the Unknown Defendants attended the Cluny Subdivision work site where the Work was being carried out (the “Work Site”) and erected a blockade (the “Blockade”). The Blockade physically precluded the Contractor and its employees and subcontractors from accessing the Work Site. At the time the Blockade was constructed, the Work was approximately 80% complete. [ 11 ] As a result of the Blockade, the Contractor has been precluded from performing the balance of the Work in accordance with the Agreement.

A significant fleet of equipment belonging to, or supplied by, the Contractor was situated at the Work Site at the time the Blockade was erected. The Contractor was unable to retrieve the equipment situated at the Work Site over a five week period from the commencement of the Blockade on November 4, 2015 through to early December 2015. During this time, the Contractor estimates that it suffered $568,669 in damages as a result of the costs arising out of ongoing security and loss of opportunity (the “Standby Costs”).

The Contractor has indicated that it may take legal action against the Applicant to recover the Standby Costs. [ 12 ] During the time while the Work was stopped, the Applicant, Tribal Manager, and Chief Financial Officer took steps to address the concerns of the Respondent. (The Respondent’s concerns will be described in further detail below.) These steps included: (1) providing access to financial records and materials requested by the Respondent, which included, but was not limited to the general ledger, bank account information, and balance sheets; and (2) consenting to disclosure under the Alberta Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 [ FOIP ] of copies of the 2013 Flood Recovery Funding Contracts and Reimbursement Records from June 1, 2013 to February 22, 2016.

The Applicant submits that it has provided disclosure and has consented to the full release of all of the material requested by the Respondent to date. [ 13 ] In March 2016, the Applicant requested that the Contractor send representatives to re-attend at the Work Site in order review previously constructed infrastructure at the Work Site and to determine the extent of the Work yet to be completed.

The Applicant’s hope that the Respondent would dismantle the Blockade proved premature; the Blockade remained in place and the Contractor and its employees and subcontractors were physically unable to access the Work Site. [ 14 ] On March 9, 2016, the Contractor informed the Applicant that during a visit to the Work Site, two of the Contractor’s employees were physically threatened and told not to return by some of the Unknown Defendants. The Contractor also advised the

Applicant that within an hour of the incident, someone named Benedict telephoned one of the Contractor’s employees and threatened to shoot him if he showed up at the Work Site again. Accordingly, the Contractor has not attended the Work Site or performed the remaining Work under the Agreement. [ 15 ] It is my understanding that to date, the Blockade remains in place. Facts Relied on by Ben Crowchief [ 16 ] In the Respondent, Mr.

Crowchief’s, words, he and the Unknown Defendants initiated a “peaceful blockade protestion”. [ 17 ] The Respondent has grave concerns about the Applicant’s ability to manage and carry out the Cluny Subdivision Project and the entire 2013 Flood Rebuild Plan. He states in his brief that the Applicant is subject to the Indian Act , RSC 1985, c I-5 and the rule of law.

In addition, given (1) the magnitude and catastrophic nature of the 2013 Flood, (2) the number of members of the Siksika Nation directly or indirectly affected by the 2013 Flood, and (3) the considerable quantum of funds committed to the 2013 Flood Rebuild Plan, the Respondent submits that the Applicant has breached its fiduciary duties to the Respondents by its failure to follow administrative fairness, natural justice, customs, traditions, and Siksika Nation laws. [ 18 ] The Respondent states that his purpose for protesting and erecting the Blockade is to draw attention to and address the lack of: (

a) oversight and accountability for financial resources under the Applicant’s direct control; (

b) transparency from the Applicant’s administrators; (

c) meaningful consultative cooperation with the Respondents with respect to all aspects of the 2013 Flood Rebuild Plan, including the precise location of the homes to be rebuilt; and (

d) recognition of the Respondents’ Constitutional freedom to peacefully protest the actions of the Applicant. [ 19 ] The Respondent submits that the Respondents initiated the Blockade and peaceful protests because of the Applicant’s failure, inaction, and inability to explain and account for alleged delays, vanishing funds, and misappropriation of funds received and expended related to the 2013 Flood Rebuild Plan. The Respondent alleges that the financial disclosures and explanations received from the Applicant to date have been superficial at best. [ 20 ] The Respondent seeks to protect his freedom to protest under

section 2(

b) of The Constitution Act, 1982,

Schedule B to the Canada Act 1982 (UK) , 1982, c 11 [ Charter ], which protects the right to freedom of expression. The Respondent acknowledges that the “expression” in this case is the Blockade and their presence (physical, verbal, and signage) at the access point to the Work Site. This is an important issue and, as such, I address it separately, later in this decision.

Remedy Sought by the Applicant [ 21 ] The Applicant requests an order for an interim and interlocutory injunction strictly enjoining, restraining and prohibiting the Respondents or any other person acting under any one of more of the Respondents’ direction, control or behalf, or in any way associated with or acting in support of one or more of the Respondents, from directly or indirectly; (

a) physically obstructing, impeding, delaying or in any way physically interfering with the operations of the Cluny Subdivision Project; (

b) creating a nuisance on or at the access point to the Work Site; (

c) engaging in any actions which interfere with the contractual or economic relations of the Applicant, in particular by continuing to blockade the access point to the Work Site; and (

d) interfering with the Contractor’s employees, subcontractors or agents in any way, including harassment or use of threats. [ 22 ] The Applicant also seeks a provision in the order for interlocutory injunction that: (

a) it remain in force until the trial of the within Action; (

b) would allow service of the Order for the aforesaid interim and interlocutory injunction to be substitutionally served on any and all Unknown Defendants by posting the Order conspicuously in specified locations on the Blockade and Work Site; (

c) that such service of the Order be deemed good and sufficient on all Unknown Defendants; and (

d) such further and other relief as this Honourable Court considers necessary. [ 23 ] I will refer to paragraphs 21 and 22 as the “Proposed Order” throughout this decision. Issue [ 24 ] Does the Applicant satisfy the test for an interlocutory injunction?

Interlocutory Injunction [25] An interlocutory injunction is an extraordinary remedy. The Applicant and the Respondent agree that the appropriate test forgranting an interlocutory injunction is the tripartite test enunciated by the Supreme Court of Canada (“SCC”) in RJR-MacDonald Inc vCanada (Attorney General), (SCC), [1994] 1 SCR 311, 111 DLR (4th) 385 [RJR cited to SCR]. [26] The onus is on the Applicant to demonstrate that: (

a) it has a serious issue to be tried or, in some cases, a strong prima facie case; (

b) it will suffer irreparable harm before trial if the injunction is refused; and (

c) the balance of convenience favours granting the injunction. (RJR at 334, 348) Strong Prima Facie Case [27] The first step of the RJR test usually requires that the Applicant show that it has a serious issue to be tried: RJR at 334, 348.The general rule is that “a judge should not engage in an extensive review of the merits”: RJR at 338. There are, however, two exceptionsto this general rule.

When one of these exceptions applies, which is rare, “a more extensive review of the merits of the case must beundertaken”: RJR at 339. [28] The first exception arises “...when the result of the interlocutory motion will in effect amount to a final determination of theaction”: RJR at 338.

This Court has found that the first exception applies in cases of picketing in the labour context: TelusCommunications Inc v Telecommunications Workers Union, 2005 ABQB 719 at para 19, 385 AR 43 [Telus]; see also Retail,Wholesale and Department Store Union Local 558 v Pepsi-Cola Canada Beverages (West) Ltd, (SK CA), 167DLR (4th) 220, [1999] 8 WWR 429 (SKCA), aff’d 2002 SCC 8, [2002] 1 SCR 156 [Pepsi-Cola cited to DLR]. [29] Madam Justice Hughes, in Telus, discussed the rationale behind this higher burden at paragraph 21: The rationale for this higher burden in picketing cases was articulated by Cameron, J.A. in Garry v.

Sherritt Gordon Mines Ltd.: ... first, in cases of this kind an Order granting an injunction is most often in the nature of a final Order; second, the competing interests atstake, and their nature, make it necessary to start with a balanced scale, not one weighed at the outset in the favour of the plaintiff. [30] I am mindful of this rationale. While the analogy between “picketing cases” and protestors is imperfect, I find it to be ofassistance: Hudson Bay Mining & Smelting Co v Dumas, 2014 MBCA 6 at para 67, 370 DLR (4th) 237 [Hudson Bay]. I find that thestandard in Pepsi-Cola and Telus applies in this case.

The Applicant must demonstrate that it has a strong prima facie case; therefore, Imust look more extensively into the merits of its case. [31] In order to make out a strong prima facie case: …the evidence must be such as to demonstrate that: (

i) the plaintiff has a legal right of one nature or another and (ii) the defendant isinterfering with that right in actionable manner.

Each of the constituent elements of the cause or causes of action upon which the court isbeing asked to act (including the elements of each of the associated torts) must be made out with sufficient certainty, in light of thegoverning standard, to warrant the sought-after relief. (Pepsi-Cola at 233) [32] In its Statement of Claim, the Applicant claims that the actions of the Respondents, including erecting the Blockade, give riseto causes of action in tort, including: nuisance and unlawful interference with economic relations.

The Applicant submits that it hasdemonstrated that it has a strong prima facie case on both of these grounds, as discussed below. Nuisance [33] To support a claim in private nuisance, the Applicant must show: (1) a substantial interference with the owner’s use andenjoyment of land that is (2) unreasonable in all of the circumstances: Antrim Truck Centre Ltd v Ontario (Transportation), 2013 SCC13 at para 19, [2013] 1 SCR 594. [34] The facts of Hudson Bay are similar to those here.

In Hudson Bay, the Mathias Colomb Cree Nation (the MCCN) disputed theright of mining company, Hudbay, to conduct certain mining operations because Hudbay had not consulted with MCCN nor obtained itsconsent. On two occasions, protestors peacefully protested on the access road for Hudbay’s Lalor Project near Snow Lake, Manitoba.Unrestricted access for the Lalor Project was interrupted during each protest. [35] The Manitoba Court of Appeal (“MBCA”) found that the tactic of blockading “is a substantial and unreasonable interference”with the use and enjoyment of land: Hudson Bay at para 73.

In so finding, it held (at paras 69, 72-75): What is not controversial is that picketing that amounts to a complete blockade of an employer’s premises in a labour dispute amounts tothe tort of nuisance… […]

Here, however, the means of inflicting harm on Hudbay is not communication resulting in bad publicity or lost sales. Rather, the harm isa true nuisance as it is a substantial and unreasonable interference with Hudbay’s use or enjoyment of the Lalor Project (see Antrim TruckCentre Ltd. v. Ontario (Transportation), 2013 SCC 13 at para. 19). Blockading the access road causes substantial harm to Hudbay because it cannot operate. Hudbay uses the access road 24 hours a day,seven days a week.

Protestors forcing a lawful business to entirely halt its operations is, in my view, a material interference withHudbay’s use of the land (see Tock v. St. John’s Metropolitan Area Board, (SCC), [1989] 2 S.C.R. 1181 at 1191). The blockades are also unreasonable in the circumstances.

While the principle issue is not the appellants’ conduct, but the interferencesuffered by Hudbay, it is pertinent that the means of interference can be described as illegal activity contrary to the common lawexperience in the labour context and otherwise... [36] There is ample evidence that the Respondents’ interference with the Applicant’s and the Evacuees’ use and enjoyment of theland is substantial. No Work had been done on the Cluny Subdivision Project for 325 days (as of the date of the hearing of thisApplication) as a result of the Blockade, which continues.

The Contractor has suffered significant Standby Costs. The Applicant may beliable for the Standby Costs and any other costs associated with the breach the Agreement. As well, the Blockade is causing a serioussecurity and safety issue in the form of alleged threats made to persons attending the Work Site for legitimate purposes and by leavingunfinished Work exposed.

Finally, while all of this is happening, some of the Evacuees are displaced and they are living in temporaryhousing under difficult conditions; they are at risk of losing the permanent housing that they have been promised. [37] There is also ample evidence that the Respondents’ interference with the Applicant’s and the Evacuees’ use and enjoyment ofthe land is unreasonable. Again, the Blockade has been erected for 325 days (as of the date of the hearing of this Application) and itcontinues. It prevents any Work from being completed.

The Applicant has made numerous attempts to satisfy the Respondent’s demandsand requests. The Applicant does not take issue with the Respondents’ freedom to protest; its issue is only the Blockade. I also find itpertinent that the means of the Respondents’ interference can be described as illegal activity, contrary to the common law experience inthe labour context and otherwise. [38] As a result, I find that the Applicant has shown that the Blockade “is a substantial and unreasonable interference” with the useand enjoyment of the Applicant’s land.

Blockading the access road to the Work Site has caused substantial and unreasonable harm to theApplicant because the Contractor has been unable to complete 20% of the Work. Therefore, the Applicant has a strong prima facie claimagainst the Respondents for nuisance.

Unlawful Interference with Economic Relations [39] In AI Enterprises Ltd v Bram Enterprises Ltd, 2014 SCC 12, [2014] 1 SCR 177 [AI Enterprises cited to SCC], the SCCdescribed the tort of unlawful interference with economic relations in the following way (at para 23): The unlawful means tort creates a type of “parasitic” liability in a three-party situation: it allows a plaintiff to sue a defendant foreconomic loss resulting from the defendant’s unlawful act against a third party.

Liability to the plaintiff is based on (or parasitic upon)the defendant’s unlawful act against the third party... [40] The test for the tort of interference with economic relations requires the court to consider the following factors: (

a) whether the defendant intended to injure the plaintiff; (

b) whether the defendant interfered with the plaintiff’s business by illegal or unlawful means; and (

c) whether, as a result of the interference, the plaintiff suffered economic loss. (Telus at para 38) [41] In order to find that “the defendant intended to injure the plaintiff”, the court must find actual knowledge of, and intention tocause, “loss to the plaintiff, either as an end in itself or as a means of, for example, enriching himself”: AI Enterprises at para 96, citingAlleslev-Krofchak v Valcom Ltd, 2010 ONCA 557 at para 50, 322 DLR (4th) 193, leave to appeal to SCC refused, [2011] 1 SCR xi.

Inother words, “mere foreseeability of such harm does not meet the requirement for intention in the unlawful means tort”: AI Enterprises atpara 97. [42] In addition “in order for conduct to constitute “unlawful means” for this tort, the conduct must give rise to a civil cause ofaction by the third party or would do so if the third party had suffered loss as a result of that conduct”: AI Enterprises at para 76. [43] There is evidence that the Respondent had actual knowledge of and intention to cause loss to the Applicant.

Through hisFOIP request, the Respondent obtained copies of the 2013 Flood Recovery Funding Contracts and Reimbursement Records from June 1,2013 to February 22, 2016. In addition, the Applicant provided the Respondent with financial disclosure, including access to the generalledger, bank account information, and balance sheets. [44] Therefore, there is evidence that the Respondent was well aware of the Applicant’s contractual obligations with theContractor and the Province.

It follows that the Respondent was aware that the Blockade had and would continue to injure the Applicant.The Respondent’s acts of protesting and erecting the Blockade, in essence, have provided him with leverage to pressure the Applicant tocomply with his disclosure demands. The Respondent’s knowledge in this case goes beyond mere foreseeability of loss; the Respondenthad actual knowledge of and intention to injure or cause loss to the Applicant. [45] In this case, the Contractor would be the “third party” referred to in paragraphs 23 and 76 of AI Enterprises.

Therefore, theApplicant must provide evidence that the Respondent’s conduct gives rise to a civil cause of action for the Contractor as against theRespondent. In my view the evidence arguably supports two causes of action in tort for the Contactor as against the Respondent,

including: (1) intimidation and (2) inducing breach of contract. First, there is evidence that the one or more of the Unknown Defendantsphysically and verbally threatened the Contractor’s employees with violence if they returned to the Work Site. This evidence couldsupport an action in intimidation. Second, there is evidence that the Respondent is inducing the Applicant to breach the Agreement bypreventing the Applicant from providing safe access to the Work Site, which is a necessary prerequisite for the Applicant to be able tofulfil its contractual obligations with the Contractor under the Agreement.

This evidence could support an action in inducing breach ofcontract. [46] I pause at this point to recognize that the Respondent vehemently denies the Applicant’s allegations of threats andintimidation. The fact that I acknowledge the Applicant’s evidence that there were threats is not a finding that there were in fact threats.The Applicant would be required to prove those allegations at trial. All the Applicant must show for the purpose of this application isevidence that amounts to a strong prima facie case. [47] I addressed the economic consequences to the Applicant in the Nuisance

Section above: the Contractor has sufferedsignificant Standby Costs during the time it was prevented access to the Job Site and its equipment. The Contractor has indicated that itmay bring legal action, where a court may find that the Applicant is liable for the Standby Costs and any other costs associated with thebreach of the Agreement. [48] As a result, I find that the Applicants have provided ample evidence that: (1) the Respondents intended to injure theApplicant; (2) the Respondents interfered with the Applicant’s business using unlawful means; and (3) the interference caused theApplicant economic loss.

Therefore, the Applicants have shown that they have a strong prima facie claim for unlawful interference witheconomic relations against the Respondents. Conclusion [49] In conclusion, the Applicant has demonstrated that it has a strong prima facie case supporting causes of action in tort,including: (1) nuisance and (2) interference with economic relations. The next step is to determine whether the Applicant will sufferirreparable harm if the injunction is refused.

Irreparable Harm [50] The second step of the RJR test requires the Applicant to show that it will suffer irreparable harm before trial if the injunctionis refused: RJR at 334, 348. In RJR, the SCC held (at 341): “Irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetaryterms or which cannot be cured, usually because one party cannot collect damages from the other. Examples of the former includeinstances where one party will be put out of business by the court's decision (R.L. Crain Inc. v.

Hendry (1988), (SKQB), 48 D.L.R. (4th) 228 (Sask. Q.B.)); where one party will suffer permanent market loss or irrevocable damage to its businessreputation (American Cyanamid, supra); or where a permanent loss of natural resources will be the result when a challenged activity isnot enjoined (MacMillan Bloedel Ltd. v. Mullin, (BC CA), [1985] 3 W.W.R. 577 (B.C.C.A.)). The fact that one partymay be impecunious does not automatically determine the application in favour of the other party who will not ultimately be able tocollect damages, although it may be a relevant consideration (Hubbard v.

Pitt, [1976] Q.B. 142 (C.A.)). [51] The Applicant need only show “a meaningful risk of irreparable harm”: Hudson Bay at para 85.

At paragraph 86 of HudsonBay, the MBCA held: It is well settled that a finding of a complete blockade of a lawful business strongly suggests irreparable harm for the purposes of aninjunction (see West Fraser Mills at para. 21; Sunshine Logging at para. 52; and Ideal Railings Ltd. at paras. 57-60)… (See also: Canadian Forest Products Ltd v Sam, 2011 BCSC 676 at paras 119-123, rev’d on other grounds 2011 BCCA 478). [52] There is no indication that the Respondent intends to dismantle the Blockade. There is also no suggestion in this case that theRespondent(

s) would be able to pay the losses incurred by the Applicant should the Applicant be successful at trial. While this is not theonly factor for determining irreparable harm, it is a significant factor, especially given the potential magnitude of the loss in this case. [53] Even though the Applicant has not yet incurred any economic consequences, it need only show a meaningful risk ofirreparable harm. It has done that; the threats of litigation as well as the looming and absolute deadline for the advance of Funds to theApplicant demonstrate a real risk of irreparable harm.

Finally, the Evacuees rely on the Applicant to provide this housing. If theEvacuees lose their ability to move into permanent housing, their losses would be immeasurable. [54] In conclusion, the Applicant has demonstrated a meaningful risk that it will suffer irreparable harm before trial if theinjunction is refused.

Balance of Convenience [55] The third step of the RJR test requires "a determination of which of the two parties will suffer the greater harm from thegranting or refusal of an interlocutory injunction, pending a decision on the merits": Metropolitan Stores (MTS) Ltd v Manitoba Food &Commercial Workers, Local 832, (SCC), [1987] 1 SCR 110 at 129, 38 DLR (4th) 321.

The factors to consider at thisstage are numerous and vary in each individual case: RJR at 342. [56] Throughout this decision, I have outlined the potential economic consequences and irreparable harm that may result should Irefuse to grant the Proposed Order for an interlocutory injunction. The consequences may be serious, and could be catastrophic. I havealso highlighted the fact that the Respondent would not be able to pay the losses incurred by the Applicant should it be successful at

trial. [57] The Respondent made passionate and able submissions respecting the balance of convenience. The Respondent feels that themembers of the Siksika Nation have been lied to and cheated by the Applicant in its handling of the 2013 Flood Rebuild Plan. Despitethe numerous meetings, discussions, disclosures, and consultations between the Applicant and the Respondent, the Respondent continuesto feel let down and misled by the Applicant. The Respondent submits that granting this injunction would amount to an injustice andwould cause the Respondents to lose hope in the system.

It is obvious to me that there is a history behind this conflict that goes wellbeyond the scope of this Application. [58] Reading between the lines, the Respondent feels that his freedom to continue to protest, particularly through the use of theBlockade, is the only way that the Respondents’ voices can be heard and have any weight. I thank the Respondent for his articulatesubmissions; I heard them indeed. However, this Court cannot resolve the underlying conflict between the Applicant and the Respondentby denying the Proposed Order. I must apply the law to the facts as they appear before me.

The Respondent’s issues and concerns are ofa political nature. In addition, I note that the Applicant openly supports the Respondent’s freedom to lawfully protest and to explore alllegal avenues within the democratic process to express his dissent. The Proposed Order seeks only enjoin the Respondents fromparticipating in unlawful or violent forms of protest. [59] Therefore, I find that the Applicant would suffer greater harm from the refusal of an interlocutory injunction, pending adecision of this dispute on the merits. Conclusion [60] In conclusion, the Applicant has discharged its onus to demonstrate that: (

a) it has a strong prima facie case; (

b) it will suffer irreparable harm before trial if the injunction is refused; and (

c) the balance of convenience favours granting the injunction. [61] Therefore, I grant the Applicant’s application for an interlocutory injunction. I will discuss the content of the Order more fullyafter I address the following two issues: (1) the interaction between this Application and the Respondent’s freedom of expression undersection 2(

b) of the Charter; and (2) the impact of the fact that Unknown Defendants were named as parties to this Action. Freedom of Expression Application of the Charter [62] As I alluded to above, the Respondent submits that the Proposed Order would violate the Respondent’s freedom of expression(to protest) under

section 2(

b) of Charter.

Section 2(

b) provides: Everyone has the following fundamental freedoms: (

b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; [63] Prior to embarking on any Charter analysis, a threshold step must be met: does the Charter apply to the impugned law oractivity? This threshold step arises out of the application of section 32(1) of the Charter. [64] In RWDSU v Dolphin Delivery Ltd, (SCC), [1986] 2 SCR 573, 33 DLR (4th) 174 [Dolphin Delivery cited toSCR], the SCC does not apply to private litigation.

However, the SCC went on to explain(at 602-603): It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possiblymunicipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures. It is not suggested that this list isexhaustive. Where such exercise of, or reliance upon, governmental action is present and where one private party invokes or relies uponit to produce an infringement of the Charter rights of another, the Charter will be applicable.

Where, however, private party “A” suesprivate party “B” relying on the common law and where no act of government is relied upon to support the action, the Charter will notapply.

I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop theprinciples of the common law in a manner consistent with the fundamental values enshrined in the Constitution. [65] In Horse Lake First Nation v Horseman, 2003 ABQB 152, [2003] 8 WWR 473 [Horse Lake cited to ABCA], the defendants,members of the Horse Lake First Nation, were protesting over what they perceived as improper management and administration of fundsby the Chief and Band Council.

The defendants were occupying various parts of the Band Council offices and demanding that forensicaudits and drug testing be performed. [66] Justice Lee found that application of section 32(1) of the Charter to Aboriginal Native Band Councils is a somewhat unsettledarea. After a review of the applicable case law, Justice Lee held (at paras 29-30): The Charter should apply to any decision or by-law or action the Band Council or the Band makes under the authority of the Indian Actbecause the Band is using its statutory authority to regulate the life of its members.

Therefore, the women whom the Band seeks torestrain from protesting should be able to raise freedom of expression against the Band Council.

There are circumstances where the decisions of the Band should not be subject to the Charter. For example, if the Band or Band Councilis contracting with a private party for goods or services, the relationship is one that would likely be governed by private contract law. (cited with approval in Pridgen v University of Calgary, 2012 ABCA 139 at para 90, [2012] 11 WWR 477) [67] I find that this case falls into the second category discussed by Justice Lee; it is in circumstances involving privatecontracting. The current case is very similar but distinguishable from Horse Lake.

In this case, the Applicant and the Contractor enteredinto the Agreement, which is a private contract. The Applicant seeks the injunction to enjoin the Respondents from interfering with theAgreement. The Applicant relies on the commission of a tort with respect to this private relationship as a basis for the injunction.Although there may be a bigger dispute between the parties that I have described as “political” and to which the Charter applies, theApplicant does not seek to enjoin the Respondents from pursuing legal avenues to express their dissent.

The Applicant seeks only to endthe Blockade so that the Contractor and the Applicant can fulfil the Agreement. [68] Based on the above analysis, I find that the Charter does not apply to the actions of the Applicant in this case. However, Iagree with Justice Lee that this area of the law remains somewhat unsettled. I also note that the common law must be applied anddeveloped in a manner consistent with the Charter. Therefore, in the event that I am wrong and the Charter does apply here, I willaddress whether the Applicant has unjustifiably infringed on the Respondent’s freedom of expression protected by

section 2(b).

Section 2(

b) Analysis [69] For the purpose of the analysis under

section 2(

b) of the Charter, The Applicant concedes that: (1) any non-violent form ofexpression, including the Blockade, falls within the ambit of the type and manner of expression which is protected under

section 2(

b) ofthe Charter; and (2) the injunctive relief sought by the Applicant is a prima facie infringement upon the freedom of expression of theRespondent. [70] The Applicant argues, however, that any limit imposed upon the Respondents by the Proposed Order is justified under section1 of the Charter via application of R v Oakes, (SCC), [1986] 1 SCR 103, 26 DLR (4th) 200 [the Oakes Test cited toSCR]. The elements of the Oakes Test can be summarized at follows (at 138-140): (

a) The impugned law or action must have a pressing and substantial objective; (

b) The impugned law or action must be rationally connected to the objective; (

c) The impugned law or action must impair the right as little as possible; and (

d) The benefits of the impugned law or action must outweigh its deleterious effects. [71] In Pepsi-Cola the SCC discussed and somewhat modified the Oakes Test analysis in the context of a picketing scenario. Atparagraphs 36 and 37, the Court found the following: This said, freedom of expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately becurtailed. Thus, s. 2(

b) of the Charter is subject to justificative limits under s. 1. The same applies in interpreting the common law to reflect the Charter. The starting point must be freedom of expression. Limitationsare permitted, but only to the extent that this is shown to be reasonable and demonstrably necessary in a free and democratic society. [72] The SCC then canvassed the analytical models and competing interests at play in picketing and protesting scenarios.

Itultimately held “...that secondary picketing is generally lawful unless it involves tortious or criminal conduct...” and that “picketingwhich breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation, will beimpermissible, regardless of where it occurs”: at paras 3, 77. The holding in Pepsi-Cola applies to all forms of protest analogous topicketing: at paras 80-82. [73] In Horse Lake First Nation v Horseman, 2003 ABQB 114, 17 Alta LR (4th) 78, which was released prior to Horse Lake,supra, Justice Lee adopted and followed Pepsi-Cola.

He held that the defendants had, at one point, committed prima facie trespass. Hadthis continued, he would have enjoined them from doing so. He held that occupying the foyer during normal business hours waspermissible “as long as there is no interference with persons coming and leaving the building, as long as there is no interference with thenormal business and office processes that take place within the Band Council Office, and as long as there is not improper harassment ofthe Chief and Band Councillor anywhere”: at paras 58-59. [74] I find that the above analysis applies in this case.

The Applicant seeks the Proposed Order for a pressing and substantialobjective: risk of significant financial and societal harm. The Proposed Order is directly linked to that objective. The Proposed Order isminimally impairing; it merely infringes on that which is an impermissible expression: tortious conduct arising out of the Blockade ofthe Work Site together with threats and intimidation. Therefore, I find that the Proposed Order justifiably infringes upon theRespondent’s

section 2(

b) Charter freedom under

section 1 of the Charter. The “Unknown Defendants” [75] I will now address with the fact that the Unknown Defendants were named in this action, and whether they can be bound by acourt order for an injunction. [76] This is not a new phenomenon. In MacMillan Bloedel Ltd v Simpson, (SCC), [1996] 2 SCR 1048, 137DLR (4th) 633 [MacMillan Bloedel], the respondent brought an action to, among other things, restrain protesters from blocking its

logging roads. After many different applications and iterations, the respondents were granted an interim injunction prohibiting the named defendants, "John Doe, Jane Doe and Persons Unknown", and "all persons having notice of the order" from interfering with its operations at specified locations. [ 77 ] One of the issues on appeal in MacMillan Bloedel was whether orders enjoining unknown persons from violating court orders are valid and enforceable.

In MacMillan Bloedel , the SCC held (at 1070): I conclude that the British Columbia Supreme Court has jurisdiction to make orders enjoining unknown persons from violating court orders. Such orders are enforceable on the long-standing principle that persons who are not parties to the action, but who violate an order of the court, may be found guilty of contempt for interfering with justice. Provided that contempt is the only remedy sought, it is not necessary to join all unknown persons in the action under the designation, "John Doe, Jane Doe and Persons Unknown".

Nor, strictly speaking, is it essential that the order refer to unknown persons at all. However, the long-standing Canadian practice of doing so is commendable because it brings to the attention of such persons the fact that the order may constrain their conduct.

Similarly to be commended is the practice followed by the courts in this case of ensuring that the wording of the orders is clear and that their effect is properly circumscribed. (see also: Brian Mallard Insurance Services Ltd v Shirley , 2005 ABQB 858 at para 44 , 385 AR 249 ) [ 78 ] Therefore, I find that naming Unknown Defendants in this action does not invalidate it.

The order for an injunction in this case is enforceable against all persons, including those who are not parties to the action, who violate it; those who violate it may be found guilty of contempt for interfering with justice provided they have received notice of the injunction and any subsequent application for contempt. Conclusion [ 79 ] In conclusion, I find that: (1) the Applicant has met the three-part RJR test for injunctive relief; and (2) the Proposed Order justifiably infringes on the Respondents’

section 2(

b) freedom of speech. As such, I find in favour of the Applicant. I grant the interlocutory injunctive relief it seeks in its Proposed Order, found in paragraphs 21 and 22 of this judgment. [ 80 ] As the Applicant does not request costs, each party shall bear its own costs. Heard on the 7 th day of October, 2016. Dated at the City of Calgary, Alberta this 21 day of October, 2016. S.L. Hunt McDonald J.C.Q.B.A. Appearances: Sean Fairhurst and David Girard MacPherson Leslie & Tyerman LLP for the Applicant Ben Crowchief, Self-Represented for the Respondent