Baffinland Iron Mines v Inuavak et al, 2021 NUCJ 22

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Baffinland Iron Mines v Inuavak et al, 2021 NUCJ 22 Date: 20210420 Docket: 11-21-048 Registry: Iqaluit Plaintiff: Baffinland Iron Mines Corporation, in its capacity as General Partner of Baffinland Iron Mines LP -and- Defendants: Namen Inuavak, Tom Naqitarvik, Jonathan Pitula, Christopher Akeeagok, Andy Kalluk, John Doe and Jane Doe, and all other persons unknown to the Plaintiff at a blockade at or near Mary River, Nunavut ________________________________________________________________________ Before: Mr.

Justice Rouleau Counsel (Plaintiff): B. Armstrong Counsel (Defendants): L. Idlout, A. Crawford Location Heard: Iqaluit, Nunavut Date Heard: March 26, 2021 Matters: Decision on motions to deal with certain objections and refusals given during the defendants’ cross- examination of the plaintiff’s representatives ENDORSEMENT

(NOTE: This document may have been edited for publication) I. OVERVIEW [ 1 ] The parties bring competing motions to deal with certain objections and refusals given during the defendants’ cross-examination of the plaintiff’s representatives. Because the plaintiff’s objections are based on relevance, I begin by outlining the context, which is more fully set out in Cooper J.’s reasons on the interlocutory injunction dated March 2, 2021 and reported at 2021 NUCJ 11 . [ 2 ] The plaintiff owns and operates an iron ore mine near Mary River, Nunavut.

Iron ore from the mine is trucked over land to Milne Port to be stockpiled and shipped. The road connecting the mine to the port is known as the Tote Road. [ 3 ] With the exception of Milne Port, the plaintiff’s facilities are only accessible by air. The plaintiff operates a single airstrip for this purpose. The plaintiff’s roughly 700 employees work a three-weeks-on/three-weeks-off schedule, arriving and departing by air.

Air transport is also the only means of performing medical evacuations or transporting food and medicine. [ 4 ] On February 4 and 5, 2021 a group of protestors blockaded the Tote Road and the airstrip, interrupting the plaintiff’s mining activities. The protest appears to be related to a proposed expansion of the mine currently under review by regulatory authorities. [ 5 ] On February 9, 2021 the plaintiff filed an action against the protestors seeking damages for trespass, unlawful interference with economic interests, and mischief.

The plaintiff also brought an ex parte motion for an injunction enjoining the protestors from further blockading the Tote Road and the airstrip. At the ex parte hearing, the plaintiff relied on affidavits from its Chief Executive Officer, Brian Penney, and its Manager of Health, Safety, Environment and Security and Training, Shawn Stevens. Cooper J. directed the plaintiff to notify the defendants of the proceedings and return the next day. [ 6 ] On February 10 counsel for both parties appeared before the court and entered into a consent order under which the protestors agreed to depart from the site.

Cooper J. heard arguments on the merits of the injunction on February 13 and ultimately issued the interlocutory injunction on March 2. [ 7 ] On February 18 and 19, after the hearing on the injunction but before the injunction was issued, the defendants cross-examined Mr. Penney and Mr. Stevens on their affidavits. In the course of these cross-examinations, counsel for the plaintiff:

a) raised a number of objections to questions, reproduced as

Schedule 1 to these reasons; and

b) took under advisement 15 requests to produce additional documents or information: three during the cross-examination of Mr. Penney and 12 during the cross-examination of Mr. Stevens. These requests are reproduced as Schedules 2 and 3 to these reasons. [ 8 ] On February 25, the plaintiff filed this motion for a ruling on the objections under r. 257 of the Rules of the Supreme Court of the Northwest Territories , NWT Reg (Nu) 010-96 , and sought an order prohibiting the defendants from filing the transcripts in the court record until such a ruling could be obtained.

That motion was scheduled for March 26, 2021. [ 9 ] On March 19, I presided over a case management conference between the parties by teleconference, the outcome of which, including my directions, can be found at 2021 NUCJ 18 . I directed that the transcripts not be filed until I heard arguments on my authority to exclude them.

I nevertheless directed that they should be provided to the court for reference only. [ 10 ] On March 22, the defendants filed a competing motion, also scheduled for March 26, seeking an order that would permit them to file the transcripts immediately so that the objections could be addressed on the public record. They also sought to compel the plaintiff’s representatives to answer the questions and produce the documents originally refused. In support of the motion, they filed the affidavits

of Sadie Vincent-Wolfe and Tom Naqitarvik. [ 11 ] On March 23, the plaintiff withdrew its objection to the filing of the transcripts, which were promptly filed in the court record. However, the plaintiff maintained its position that three documents marked for identification as Documents 101, 102, and 103 were irrelevant and should not be filed. Both motions were heard together on March 26. II. ISSUES [ 12 ] The issues I must decide in order to resolve these motions are as follows: 1. Should the defendants be prohibited from filing Documents 101, 102, and 103 in the court record? 2.

Should the plaintiff’s representative be required to answer the questions to which counsel objected as set out in

Schedule 1? 3. Should the plaintiff be required to produce the documents and information requested by the defendants, as set out in Schedules 2 and 3? [ 13 ] The issues raised in this case, and in particular by the plaintiff’s request to prohibit the filing of certain documents, engage the open court principle. As explained by the Supreme Court of Canada: “In any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy”: Toronto Star Newspapers Ltd. v Ontario , 2005 SCC 41 at para 1 . I am also mindful of the constitutionally guaranteed right of freedom of expression under s. 2(

b) of the Charter of Rights and Freedoms , including the rights of protestors to take

part in political action as a form of protected speech. [ 14 ] At the same time, I must also keep in mind that the inquiry at this stage in the proceedings is limited to the narrow field of objections, refusals, and undertakings as they relate to cross-examination on affidavits. The February 18 and 19 examinations of Mr. Penney and Mr. Stevens were not examinations for discovery on the merits of the action, but rather cross-examinations on the affidavits they provided in support of the motion for an interlocutory injunction. [ 15 ] In this regard, the Supreme Court of the Northwest Territories recently provided a useful

summary of the law relating to refusals in the context of cross-examination in Mallon v Norman Wells , 2021 NWTSC 14 at para 41 , citing Edmonton (City) v Gosine , 2020 ABQB 546 and Alberta Treasury Branches v Leahy , 1999 ABQB 829 : 1. Cross-examination on affidavit is not a discovery. Discovery has a broader purpose and scope and therefore, questions are subject to a broader scope of relevancy. In cross-examination on affidavit, the rules of relevance are more limited and the questioning necessarily more restrictive; 2. The person examined is a witness, not a party; 3.

The answers given are evidence, not admissions; 4. The affiant can only be asked to produce documents over which he/she/they have custody or control; 5. Generally, an absence of knowledge is an acceptable answer and thus the witness ought not to be required to provide undertakings in most cases.

Undertakings should be directed only where (1) the affiant has referred to information or documents in the affidavit or deposed to things suggesting he/she/they would have had to review a document before swearing the affidavit; or (2) the undertakings are relevant to an important issue in the application, providing the information would not be overly onerous, and it will help the court significantly in making a decision; 6. Questions aimed at the affiant’s credibility are restricted to credibility of statements made in the affidavit. [citations omitted] [ 16 ] I turn now to the issues raised in the motions. III.

SHOULD THE DEFENDANTS BE PROHIBITED FROM FILING DOCUMENTS 101, 102, AND 103 IN THE COURT

RECORD? [ 17 ] As noted, the plaintiff originally sought to prevent the defendants from filing any portion of the transcripts of the cross- examinations of Mr. Penney and Mr. Stevens. However, in its counsel’s letter dated March 23, the plaintiff limited its request to three documents, identified as documents 101, 102, and 103 during the cross-examination of Mr. Penney.

It argues that because they are irrelevant to the injunction proceedings they should not be filed with the transcripts. [ 18 ] The defendants note that the documents in question are simply annual reports released by the plaintiff’s parent company, ArcelorMittal, and a financing prospectus, all of which are publicly available. [ 19 ] Rule 381(4) requires the filing of transcripts of cross-examinations on affidavits: 381

(4) The party conducting a cross-examination on an affidavit shall cause a transcript of the cross-examination to be filed unless the filing is dispensed with by the Court. The defendants argue that there is no principled reason to exclude the documents put before Mr. Penney in cross-examination from the filing requirements. They form part of the transcript and a prohibition on filing the documents would offend the open court principle. [ 20 ] I see no reason why the documents should not be filed. They are routine financing and reporting documents: 1.

Document 101 is a Preliminary Offering Circular dated June 18, 2018. It appears to have been released by Baffinland Iron Mines Corporation, Baffinland Iron Mines LP and BIM Corp. in connection with the issuance of senior secured notes. It is marked “Confidential” and bears the standard disclaimers required under securities law. The defendants have highlighted a portion reading “We are targeting production of 5.5 Mt in 2018 and 6.6 Mt in 2019 subject to permitting approvals, which we believe is achievable with limited additional capital spending and relevant permitting.” 2.

Document 102 is an excerpt of the 2018 Annual Report of the plaintiff’s parent company, ArcelorMittal. The excerpt summarizes the current state of the plaintiff’s operations, and its plans for future expansion, including: “Phase 3 of the project, which involves the construction of a railway to replace the existing truck-haul operations … as well as expansion of mining, crushing, and screening operations.” 3. Document 103 is an excerpt of the 2019 ArcelorMittal Annual Report.

In it, the defendants have excerpted essentially the same information as in the 2018 report. [ 21 ] The plaintiff has not suggested that these documents contain sensitive or proprietary information, nor that it may be prejudiced by their being filed. Its only objection is relevance. [ 22 ] As I will explain, I agree with the plaintiff that these documents are not relevant to the interlocutory injunction. However, they were referred to in cross-examination.

To the extent that r. 381(4) grants me some discretion to order or dispense with filing, and in keeping with the open court principle, I would refuse to exercise my discretion to exclude them. The defendants are free to file Documents 101, 102, and 103 in the court record, together with the transcript of the cross-examination of Mr. Penney. [ 23 ] In support of their motion to require filing of Documents 101, 102 and 103, the defendants filed the affidavit of Sadie Vincent- Wolfe.

The plaintiff objected to its filing, arguing that it is inadmissible under r. 373 of the Rules of Court and asked that it be struck out. Rule 373 limits what a deponent can state in an affidavit to include only what the deponent could give as evidence in court and, to some extent, to facts not in dispute. The affidavit of Sadie Vincent-Wolfe includes a number of statements about the defendants’ positions on the case and appears to be intended merely as a vehicle for filing the various news clippings attached as exhibits to the affidavit.

The defendants state that the affidavit is provided to show that the information contained in Documents 101, 102, and 103, along with other information they argue is relevant to the motion, is already in the public domain. I see no relevance to this affidavit. It contains hearsay,

argument, and news articles about topics of which the affiant has no personal knowledge. It is to be struck out. IV. OBJECTIONS TO QUESTIONS BASED ON RELEVANCE [24] The table appended as

Schedule 1 to these reasons lists the objections raised by the plaintiff during the cross-examination of BrianPenney. In each case, the objection is that of relevance. However, there is significant disagreement between the parties as to what isrelevant. Consequently, I begin by laying out the scope of relevance as it applies to these injunction proceedings before considering theindividual objections. A.

The Scope of Relevance [25] At the outset, I note that Cooper J.’s March 2 order imposing the interlocutory injunction has transformed these proceedings from amotion for an interlocutory injunction into what the parties anticipate will become a motion to lift the injunction. The defendants statedtheir intention to bring such a motion during the hearing before me.

Questions of relevance must be decided with that in mind. [26] The plaintiff argues that many of the defendants’ questions relate to the mine’s permits, financing, expansion, and third-partylitigation, which are irrelevant to the injunction proceedings because no possible answer to such questions could provide a justificationfor the protestors’ blockade.

The plaintiff cites Cooper J.’s statement at para 12 of her decision on the interlocutory injunction: “Thedecision I am required to make on this application is not a review or comment on the mining operation, on the review process currentlyunderway, or on the relationship amongst the various Inuit organizations involved and their beneficiaries.” [27] As for the balance of the questions objected to, the plaintiff submits that these relate to matters internal to the company’soperations and have no relevance to the actions taken by the protestors or to the injunction. [28] The defendants make two arguments in response to the plaintiff’s objections, which I address in turn.

First, with respect toquestions related to the mine’s permits, the defendants argue that because an injunction is an equitable remedy, the plaintiff must cometo equity with clean hands. If the plaintiff is operating or expanding the mine in violation of its permits, it cannot seek equitable relief topreserve those activities.

Questions seeking to show that the plaintiff is exceeding its permitted activities or has begun preparations foran as-yet unlicensed expansion of mining operations are therefore relevant to whether the plaintiff has clean hands, as well as whetherthe operations being interrupted are legal. [29] I disagree.

Dealing first with the defendants’ submission that the plaintiff’s alleged violations of its license are relevant to the issueof clean hands, Robert Sharpe explains in his book on injunctions: “The maxim that one ‘who comes to equity must come with cleanhands’ is colourful but potentially misleading in so far as it suggests a general power to scrutinize all aspects of the plaintiff’s behaviourand refuse relief if it offends”: Robert Sharpe, Injunctions and Specific Performance, ProView loose-leaf, (Toronto: Thomson Reuters,2019) at para 7-1.1030. [30] The case law is clear that the clean hands doctrine requires a direct connection between the equitable relief sought by the plaintiffand the plaintiff’s impugned conduct.

In Toronto (City) v Polai (1970), (ON CA), 1 OR 483 (Ont CA), for example,Schroeder JA wrote, at para 27: “The misconduct charged against the plaintiff as a ground for invoking the maxim [of clean hands]against him must relate directly to the very transaction concerning which the complaint is made, and not merely to the general morals orconduct of the person seeking relief.” Laskin J.A. adopted the reasoning from Polai in BMO Nesbitt Burns Inc. v Wellington WestCapital Inc. (2005), (ON CA), 77 OR (3d) 161, [2005] OJ No 3566 (Ont CA), a case involving solicitation andrecruitment practices, writing at para 29: “Even at the pleading stage, permitting the defendants to argue a broader connection based onthe plaintiff’s general recruiting practices is not justified.” [31] In this case, the plaintiff’s compliance with all of its licencing requirements has no direct relation to the legality of the blockadeand the availability of an injunction to prevent it.

It would not be the type of misconduct entitling the defendants to raise the clean handsmaxim. [32] The same reasoning applies to the defendants’ argument that the operations interrupted by the blockade are illegal. In this case, thedefendants do not take issue with the fact that the plaintiff’s mining permits have been properly issued. Their principal argument is thatthe plaintiff is engaged in “extra-legal” activities to expand its mining operations, despite the fact that the plaintiff’s application to

expand its permitted activities is still under review before the Nunavut Impact Review Board. The defendants place particular emphasis on s. 74 (

b) of the Nunavut Planning and Project Assessment Act , SC 2013, c 14, s. 2 , which states that “It is prohibited to carry out a project, in whole or in part, if (

b) the assessment of the project under this Part [of the Act] has not been completed.” They suggest that the plaintiff has begun pre-construction work on the mine’s expansion before the completion of the required assessment. [ 33 ] I consider the plaintiff’s alleged violations of the Nunavut Planning and Project Assessment Act to be of no relevance to the present injunction proceedings. Even if it could be shown that the plaintiff had violated the Act, there is no indication that the defendants have standing to enforce compliance.

The issue of licensing is between the company and the state. [ 34 ] The defendants’ second response to the plaintiff’s objections focusses on questions that were aimed at demonstrating that the urgency of the situation was enflamed by the plaintiff’s own actions – for example, the manner in which it communicated with employees. The defendants argue that the plaintiff should not be entitled to relief in equity for problems of its own making. Similarly, the defendants submit that the plaintiff made at least 16 omissions, misstatements and exaggerations in its motion to obtain the injunction.

Some of the defendants’ questions are intended to probe the statements made by the affiants and, ultimately, to show that the plaintiff did not provide full and frank disclosure to the court when it obtained the injunction. [ 35 ] I agree with the defendants that questions properly targeting these issues are relevant on a motion to lift the injunction.

While the defendants did not particularize the 16 alleged instances of omission, misstatement, and exaggeration, I accept that it may be relevant to know whether the plaintiff’s own actions, including its communications with employees, contributed to the urgency of the need for an injunction, and whether the plaintiff fairly represented the situation to the court.

In its ex parte motion before Cooper J., for example, the plaintiff suggested that there could be an “incident” – implying a confrontation between employees and protestors – if employees who had been at the job site for three weeks were not permitted to leave for their scheduled three weeks of rest.

To the extent that the plaintiff justified its need for an injunction on the basis of the volatility of the situation, communications between management, employees, and the unions may be relevant, as are questions intended to probe the plaintiff’s characterization of the situation before the court. [ 36 ] At the same time, following the logic set out in Polai and Nesbitt Burns , an omission, misstatement or exaggeration is only relevant if the underlying fact is relevant.

A simple misstatement of an immaterial fact does not necessarily dirty the plaintiff’s hands or lead to the conclusion that the plaintiff failed to make full and frank disclosure to the court. As the Supreme Court acknowledged in Celanese Canada Inc. v. Murray Demolition Corp. , 2006 SCC 36 , a party seeking ex parte injunctive relief is under a heavy obligation to make “full and frank disclosure of all relevant facts” (emphasis added): at para 37. With this in mind, I turn to the individual objections. B. Application [ 37 ] In my view, the plaintiff’s objections listed in

Schedule 1 should be upheld. As explained, I do not accept the defendants’ attempt to justify these questions on the basis that the purported violations of s. 74 of the Nunavut Planning and Project Assessment Act are relevant to the clean hands doctrine, or justified the interruption of the plaintiff’s operations. It is not open to the defendants to challenge the plaintiff’s compliance with regulatory authority in the context of defending against an application to enjoin the blockade that the plaintiff claims is illegal. That line of questioning is not relevant to these injunction proceedings.

As a result, the plaintiff is not required to answer questions about company financing, expansions, construction or litigation with third-party contractors. It is for these same reasons that I have concluded that Documents 101, 102 and 103 are not relevant to the injunction. V. OBJECTIONS TO REQUESTS FOR DOCUMENTS [ 38 ] The defendants made three requests for documents or information during the cross-examination of Mr. Penney, reproduced in

Schedule 2, and 12 requests during the cross-examination of Mr. Stevens, reproduced in

Schedule 3. Again, the plaintiff’s objections are based on relevance, with the exception of one objection based on hearsay, which was withdrawn. [ 39 ] My review indicates that many of the defendants’ requests for documents are irrelevant and do not require a response, particularly in light of the narrow approach to undertakings to be taken on cross-examination: Mallon , at para 41 .

However, some of the defendants’ requests relate to the question of whether the plaintiff may have contributed to the volatile situation on the ground, or whether the plaintiff made omissions, misstatements, and exaggerations in its application for the interlocutory injunction. Those requests do require a response, as I will explain. A. Requests for undertakings from Mr. Penney

[ 40 ] During the cross-examination of Mr. Penney, the defendants requested three undertakings to produce documents or information, each of which was taken under advisement. These were: 1. To advise the amount of federal wage subsidy received by the plaintiff in relation to COVID-19 (Schedule 2, Item 1). 2. To provide the value of the upgrades to the Mary River/Milne project between 2017 and 2019 (Schedule 2, Item 2). 3. To provide geotechnical and marine geotechnical permits (Schedule 2, Item 3). [ 41 ] I view these requests as irrelevant to the injunction proceedings.

The amount of federal wage subsidy received by the plaintiff in relation to COVID-19 is clearly irrelevant. It relates at best to an external impact on the plaintiff’s business caused by factors other than the blockade. The information regarding upgrades to the Mary River project between 2017 and 2019 is also irrelevant. It falls outside the time period relevant to the injunction and appears to be aimed at demonstrating that the plaintiff is acting in violation of s. 74 (

b) of the Nunavut Planning and Project Assessment Act which I have found to be outside the scope of proper cross-examination. Finally, the request for geotechnical and marine geotechnical permits is irrelevant because the defendants have no interest in the content or validity of such permits. As noted, the defendants take no issue with the validity of such permits. [ 42 ] Accordingly, the plaintiff is not required to respond to these requests for information, nor is it required to answer any further questions on these topics. B. Requests for undertakings from Mr.

Stevens [ 43 ] The defendants made a total of 12 requests for documents or information from Mr. Stevens. I address each item in turn, with reference to

Schedule 3. [ 44 ] Item 1: The minutes of the afternoon meetings may have relevance. In his cross-examination, Mr. Stevens explained that mine staff hold daily meetings at 8 a.m. and 2 p.m. He stated that these meetings were for “any issues”, typically including discussions of safety issues and production statistics. This information may be relevant for the purposes of substantiating the plaintiff’s claims about the effect of the blockade on mining operations and should be produced, with some limits.

Accordingly, I would order the plaintiff to produce afternoon meeting minutes for the period February 4-10, inclusive. Production is limited to those portions of the minutes relating to discussions of the blockade and its effects on production, hauling, safety, and employee mobility generally.

The defendants formulated their request to include only the afternoon meeting minutes, but I see no reason why the morning minutes should not also be relevant. [ 45 ] Item 2: The mine’s general log may also contain relevant information and should be produced, for the same reason and subject to the same limitations as Item 1. [ 46 ] Item 3: The information regarding the last time the airstrip was graded prior to February 5, 2021 is not relevant. In his affidavit at para 7, Mr.

Stevens stated that the airstrip must be graded “regularly”, and he responded to the defendants’ questions about the degree of regularity required. The specific date of the last grading is not relevant and would not assist the court on a motion to lift the injunction. [ 47 ] Items 4 and 5: The information regarding “downtimes” in the use of the Tote Road either immediately prior to February 5 or in the years dating back to 2012 is irrelevant and may well be unduly onerous to assemble. In his affidavit, Mr.

Stevens stated at para. 22 that: “Over the past five years, the Tote Road has operated for an average of 325 days per year.” On cross-examination, he explained that 40 days of downtime were anticipated each year due to weather and maintenance events, but he could not specifically say how many days of downtime had been required in the months leading up to February 5, 2021. The defendants’ line of questioning appears to be aimed at probing whether the disruption in hauling activity directly impacted ore output or whether the disruption due to the blockade might fall within the range of allowable downtime.

In my view, these lines of questioning are not relevant since, as Mr. Stevens stated, for each day that the Tote Road is closed, the plaintiff loses the ability to transport some 20,000 tons of ore. The plaintiff’s planning for a certain amount of downtime does not change the fact that there is prejudice associated with any amount of downtime. The answers to Items 4 and 5 would not assist the court on a motion to lift the injunction.

[ 48 ] Items 6 and 7: The amount of fuel stored at the mine site and the length of time the mine could function without access to fuel from Milne Port are irrelevant. While Mr. Stevens mentions fuel storage in his affidavit at paras 24-25, the plaintiff did not raise the issue of a potential fuel shortage in its application for the injunction. Those answers would not assist the court. [ 49 ] Item 8: There seems to be some confusion about the Tote Road Travel Procedure Policy. Mr. Stevens refers to the Policy at para 21 of his affidavit and it is appended as Exhibit E.

It is not clear why any further undertaking is required. [ 50 ] Items 9 and 10: The communications between the company and its employees, and between the company and the unions may be relevant. As noted, the plaintiff invoked the volatility of the situation as a key factor in its application for the interlocutory injunction. Mine employees typically work a three-weeks-on/three-weeks-off schedule, leaving and returning to the mine site via the airstrip. In the context of COVID-19, they are often required to isolate on either end, reducing leisure and family time.

In those circumstances, the tenor and content of the plaintiff’s communications with employees may have relevance to the question of whether such volatility existed and, if it did, whether the plaintiff’s communications – innocently or otherwise – might have contributed to such volatility. Accordingly, I would order that any record of such communications as it related to the blockade and its impact be produced. Mr. Stevens testified that he was not responsible for preparing those communications and I would not require him to answer any further questions about them. [ 51 ] Item 11: The communications between Mr.

Stevens and his superiors with regard to the situation are not relevant. The defendants put this request to Mr. Stevens in a series of questions dealing with the fear and anxiety felt by the plaintiff’s employees. In his affidavit, at paras. 41 and 55(d), Mr. Stevens described the anxiety felt by employees and recounted his conversations with them. On cross- examination, the defendants probed the depth of employee discontent. The fact that some employees experienced fear and anxiety may be relevant to the court’s consideration of the circumstances surrounding the injunction. However, the details of Mr.

Stevens’ communications with superiors do not assist in understanding those circumstances, nor do they offer any possibility of advancing the defendants’ clean-hands arguments. [ 52 ] Item 12: The plaintiff’s emergency planning documents for air access may be relevant. The other key pillar in the plaintiff’s application for an interlocutory injunction was the urgency of clearing the airstrip for medical evacuations and food and medicine shipments. The plaintiff’s emergency documents may have relevance to the defendants’ ability to probe the plaintiff’s reliance on the airstrip and the urgency of clearing it.

The documents may assist the court in gauging the gravity of a blocked airstrip. [ 53 ] In conclusion, the plaintiff is required to produce the documents set out in Items 1, 2, 9-10, and 12 in

Schedule 3 and to submit to limited questioning on their contents, as described below. VI. DURATION, SCHEDULING, AND COSTS OF CONTINUING CROSS-EXAMINATIONS [ 54 ] The parties did not make oral submissions on the duration, scheduling, or costs of completing the cross-examination of the plaintiff’s representatives. [ 55 ] In light of my determination that the plaintiff must produce Items 1, 2, 9-10, and 12 in

Schedule 3, but that Mr. Stevens only need answer questions arising from the production of the documents sought in items 1, 2 and 12, I expect that the questions can be put and answered in writing. In the unlikely event that further viva voce cross-examination on these documents is required, it is to be strictly limited to 1/2 hour. I leave it to the parties to

schedule times for the submission of and responses to the written questions and a date for the continued examinations if required. [ 56 ] The defendants ask that the costs of continuing the examinations be paid by the plaintiff. The plaintiff states that the costs on interlocutory proceedings are typically given in the cause under r. 649. In the alternative, the plaintiff asks that each party bear its own costs. [ 57 ] I see no reason to depart from the established practice. Costs of continuing the plaintiff’s cross-examination shall be in the cause.

Costs of these motions shall likewise be in the cause. [ 58 ] Out of a concern for time, the defendants chose not to proceed with their request to have the plaintiff pay money into court as security for costs. Should they choose to bring such a motion they should contact the court office to arrange an appropriate date.

Dated at the City of Iqaluit this 20th day of April, 2021 ___________________ Justice P. Rouleau Nunavut Court of Justice

Schedule 1. Objections to Questions During the Cross-Examination of Brian Penney Item Page Question/Issue Ruling 1. 82-83 Questions concerning changes at the Mary River mine site, replacement of soft-wall camp, and erection of maintenance facility. Not relevant.

No response required, per paras. 31-32, above. 2. 83-85 Questions respecting land lease with the Qikiqtani Inuit Association, annual report of capital works, sustaining capital projects. 3. 90-95 Questions respecting payment for ore once it is delivered to Milne Port, working capital, and cash flow. 4. 95-96 Questions respecting capital expenditures on operations. 5. 96-98.

Questions respecting Baffinland’s reports to QIA and Nunavut Water Board, March 2019, regarding geotechnical activity. 6. 98 Questions respecting litigation with contractors. 7. 99-102 Questions respecting claims by Tower-E.B.C. and G.P. for contracts starting in 2017. 8. 102-104 Questions respecting Almiq Contracting. 9. 104-105 Questions respecting claims by Qikiqtaaluk Sana. 10. 105-108 Questions respecting a claim by ThyssenKrupp Industrial Solutions. 11. 108-109 Questions respecting a claim by Toromont Industries. 12. 109-110 Questions respecting a claim by Aecon Mining Construction Services. 13. 116-119 Questions respecting litigation with Tower E.B.C. in 2017. 14. 119-122 Questions respecting pre-purchased capital for Phase 2 expansion. 15. 124-127 Questions concerning Baffinland’s January 2021 NIRB update and Fitch forecasting. 16. 127-128 Questions respecting the licensing of the Tote Road 17. 128-129 Questions respecting the consequences of exceeding licensed hauling.

Schedule 2. Requests for Documents or Information Taken Under Advisement During the Cross-Examination of Brian Penney

Item Page Request Ruling 1. 28 To advise the amount of federal wage subsidy received in relation to COVID-19. Not relevant. No response required, per para. 41, above. 2. 83 To provide the value of the Upgrades to the Mary River/Milne project between 2017 and 2019. 3. 98 To provide geotechnical and marine geotechnical permits.

Schedule 3. Requests Taken Under Advisement During Cross-Examination of Shawn Stevens. Item Page Request Ruling 1. 13 To determine if afternoon meeting minutes are kept and available. Relevant. Response required per para. 35, above. 2. 68 To provide mine’s general long. Relevant. Response required per para. 35, above. 3. 100 To advise when the runway was last graded. Not relevant. No response required per para. 46. 4. 112 To advise if there were any downtimes before February 5, 2021. Not relevant.

No response required per para. 47. 5. 112 To advise how many downtimes were actually used annually since 2012. 6. 113 To advise how much fuel was stored in the fuel tanks at the mine site leading up to the incidents. Not relevant. No response required per para. 48. 7. 114 To advise how long the mine can function without access to fuel from Milne Port in the event of disruption to the Tote Road. 8. 117 To provide the Tote Road travel procedure policy. Already provided. 9. 125 To provide any communications from the company to the employees in regards to the situation. Relevant.

Response required per para. 35, above. 10. 125 To provide any communications from the company to the unions in regards to the situation. Relevant. Response required per para. 35, above. 11. 125 To provide any communications from Stevens to his superiors in regards to the situation. Not relevant. No response required, per para. 51 12. 131 To provide Baffinland’s emergency planning documents for air access. Relevant. Response required per para. 35, above.