ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: Baffinland Iron Mines Corporation v Naqitarvik, 2023 NUCA 10 Date: 20231018 Docket: 11-21-007 CAC Registry: Iqaluit Between: Baffinland Iron Mines Corporation in its capacity as General Partner of Baffinland Iron Mines LP Respondent - and - Tom Naqitarvik, Christopher Akeeagok and Andy Kalluk Appellants - and – Namen Inuavak, Daniel Inuarak, Jonathan Pitula et al Not Parties to the Appeal Corrected judgment: A corrigendum was issued on October 19, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ The Court: The Honourable Justice Frans Slatter The Honourable Justice Elizabeth Hughes

The Honourable Justice Jane Fagnan _______________________________________________________ Memorandum of Judgment Appeal from the Decision by The Honourable Justice S. Cooper Dated the 2nd day of March, 2021 Filed the 8th day of November, 2022 ( 2021 NUCJ 11 , Docket: 11-21-048-CVC) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: [ 1 ] The appellants appeal an interlocutory injunction granted against them: Baffinland Iron Mines Corp. v Inuavak , 2021 NUCJ 11 .

The injunction directed them to stop blocking access to the respondent’s mine. Facts [ 2 ] The respondent operates an iron ore mine at Mary River on Baffin Island. The mine has been in operation since 2015. While the existence and operation of the mine, and its possible expansion, are matters of controversy, there is no dispute that at the time the injunction was granted the respondent possessed all the necessary permits and approvals.

At that time a process was underway before the Nunavut Impact Review Board reviewing an application by the respondent to expand its operations. [ 3 ] The only land access to the mine is through the 100 km Tote Road to Milne Port where the ore is loaded onto ships. There is also an airstrip at the mine site. Most of the employees are housed at the mine site and rely on the airstrip to leave the site. [ 4 ] The source of the present dispute was summarized by the chambers judge: 8 On February 4, 2021, residents from the local communities set up protests at the [Baffinland] site.

These protests consisted of a camp set up on the runway that services the mine site and a camp on the Tote Road, approximately 3-4 km from the mine site. The protests were not large. There were approximately 5 protesters at the mine site and 2 on the Tote Road. Nonetheless, because of the protests, the plane that normally lands at the airstrip could not land and iron ore could not be trucked from the mine site to Milne Port. Essentially, the protest shut down mining operations. It also stopped the movement of people and supplies to and from the mine.

The appellants’ factum states that the blockades were part of a “careful and tempered plan to impede the economic activity at the mine by blocking access”: Factum at para. 11. Operations at the mine were essentially halted for several days. [ 5 ] On February 9, 2021 the respondent commenced this action alleging trespass, unlawful interference with economic interests, and mischief. It applied without notice for an interim injunction to stop the blockade. Counsel for the appellants was advised of the impending without notice application at 10:00 p.m. on February 8, but was unable to attend.

The chambers judge directed that the matter be brought forward again the next day. As the chambers judge reasoned: “While I appreciated that this was short notice, the nature of the relief sought demanded a quick response and any notice, even imperfect notice, is better than no notice”: reasons at para. 9. No order was granted on February 9. [ 6 ] On February 10, counsel representing three of the protestors appeared in court. A request for an adjournment was effectively denied, and the chambers judge heard submissions limited to whether an injunction should be granted to permit employees to leave the mine site.

The application for a more comprehensive longer term interlocutory injunction was adjourned.

[ 7 ] The immediate concern was that approximately 700 employees were unable to leave the mine site because of the blockade of the airstrip. Counsel for the appellants advised that the protestors were not opposed to facilitating the departure of the employees, and an interim order was issued to ensure that occurred: reasons at para. 10. That injunction required that the defendants clear the airstrip and allow unimpeded access to the airstrip and along the Tote Road.

The order was stated to be interim pending a final determination on the application for an interlocutory injunction, to be heard on Saturday, February 13. [ 8 ] A short time later the appellants left the project site: reasons at para. 10. [ 9 ] On February 13, 2021 the respondent maintained its application for an interlocutory injunction. Counsel for the appellants sought an adjournment to secure evidence, get instructions, and cross-examine the respondent’s affiants.

Respondent’s counsel referred the chambers judge to an email sent by appellants’ counsel on February 11, 2021 which stated in part: “This departure will not end [the appellants’] advocacy in relation to the Baffinland Mine. The Guardians [i.e. the protestors] are committed to continuing action on the land unless they see progress in proposed meetings”: reasons at para. 27. The appellants’ counsel stated that she had not been able to confirm their position with respect to returning to the project site.

The application to adjourn was dismissed, and the decision was reserved. [ 10 ] Cross examination of the respondent’s affiants occurred on February 18-19, 2021, while the decision was under reserve. [ 11 ] The injunction which is the subject of this appeal was granted following the hearing on February 13, in written reasons filed on March 2, 2021. This was 20 days after the issuance of the interim injunction on February 9, and 17 days after the second hearing on February 13.

No formal order has ever been taken out to reflect the decision of March 2, 2021. [1] [ 12 ] Objections to the scope of the cross-examination and the use of the transcripts were dealt with by a case management judge on March 23, 2021: Baffinland Iron Mines (General Partner of) v Inuavak , 2021 NUCJ 22 . By this time the proceedings had evolved into an application to set aside the interlocutory injunction, but no further steps have been taken: 2021 NUCJ 22 at para. 25. The action has also not been advanced to trial.

Grounds of Appeal [ 13 ] The appellants raise several procedural grounds of appeal, including the granting of the injunction without adequate notice, an absence of procedural fairness, denying the appellants notice of the case they had to meet, and denying the appellants a reasonable opportunity to instruct counsel and be heard. [ 14 ] The appellants also allege that the chambers judge erred by rendering a decision before cross-examination had occurred, and therefore without having regard to the evidence available after cross-examination. [ 15 ] Finally, the appellants allege that the chambers judge erred in the

interpretation and application of the test for an interlocutory injunction. The Legality of the Blockade [ 16 ] Before examining the procedural arguments raised by the appellants, it is helpful to examine the merits of their ultimate position in this litigation. In this appeal this provides important context to the procedural issues, particularly whether the respondent had shown a “serious issue to be tried” that would justify an injunction. [ 17 ] As noted, it is conceded that at the time the injunction was granted the respondent possessed all the necessary permits to operate its mine. Its operation was lawful.

The respondent had satisfied the regulators that the mine was justified in the broader public interest.

There was no dispute before the chambers judge that the appellants had been present on the Tote Road and the airstrip, and that this essentially halted the respondent’s lawful operations and activities for several days. [ 18 ] The appellants explain their motivation as follows: Compelled by concerns over the visible environmental impacts of the mine surrounding them and impacting their access to fresh water, small mammals and other supports hunters would expect to find in the course of their travels; being aware of the proposed doubling of the mine’s production; knowing that the remoteness of the site kept almost every decision-maker from seeing what they could see; and being unaware of any other remedy or recourse, the gathered hunters determined that they were obliged to bring attention to the environmental conditions at the site. (Factum at para. 10) The premise of the appellants’ position appears to be that if they could demonstrate at trial that the mine was causing an unreasonable amount of environmental or cultural damage, they would have been entitled to stop the operation of the mine.

This would amount to a collateral attack on the permits that the respondent held, which (assuming the appellants have standing) raises three questions: (

a) Is any citizen entitled to launch a challenge essentially amounting to a collateral attack on the permits, (

b) Is any citizen entitled to directly challenge whether the defendant is in compliance with its permits, and (

c) If so, is that citizen entitled to a unilateral self-help interim remedy of impeding access to the mine without resorting to any judicial process? The answer to all these questions is “No”.

[19] With respect to the first question, the respondent held all the permits it needed to operate the mine. If the appellants believedthat those permits were not in the public interest, the appropriate remedy was to petition the regulator to withdraw the permits. As noted,at the time that the injunction was granted a process was underway to permit the expansion of the mine’s operations. If the appellantsopposed the expansion, the appropriate remedy was to signify their disagreement within that process.

Not only do the appellants likelylack standing to collaterally attack the respondent’s permits, any attempt to do so in this action would be an abuse of process: Ominayakv Penn West Petroleum Ltd., 2015 ABQB 342 at para. 43, 618 AR 293. [20] Teal Cedar Products Ltd. v Rainforest Flying Squad, 2021 BCSC 605 was a similar situation where the plaintiffs disagreedwith regulatory decisions and resorted to self-help remedies. The court concluded: [49] The problem is, all of the concerns raised by the respondents are for the government to address, and not this Court.

Forestrydecisions are highly policy driven and require the government to coordinate, balance, and reconcile often competing values and interests.The applicable legal and environmental scheme regarding forestry policy and the use of Crown lands demonstrates this: Chingee v.British Columbia, 2017 BCCA 250, at para. 25. [50] The protesters’ real complaint is with the government’s policy choices. They believe that their position should prevail, no matterwhat the government decides. Their actions are designed to make it so.

The respondent Kathleen Code states flatly that in her view theMinister of Forests is incorrect in stating that old growth forestry must continue in order to provide communities and workers with work. [51] It is apparent from their public statements that they also hope to pressure the government into making the decisions they want. Theirmethod is to unlawfully interfere with Teal’s lawful operations. It is impossible for the Court to go along with this, by refusing Teal’sinjunction application and leaving it with no remedy.

While the court specifically acknowledged the rights of the protestors to protest and attempt to influence government policy, that did notinclude the right to prevent others from engaging in lawful activities. [21] With respect to the second question, if the respondent was in violation of its permits the appropriate remedy was to report thatto the regulators. As correctly stated in the decision on the scope of cross-examination (2021 NUCJ 22): 33 I consider the plaintiff’s alleged violations of the Nunavut Planning and Project Assessment Act to be of no relevance to the presentinjunction proceedings.

Even if it could be shown that the plaintiff had violated the Act, there is no indication that the defendants havestanding to enforce compliance. The issue of licensing is between the company and the state. . . . 37 . . . It is not open to the defendants to challenge the plaintiff’s compliance with regulatory authority in the context of defending againstan application to enjoin the blockade that the plaintiff claims is illegal. . . .

There is no evidence on this record that the respondent was at the time in breach of its permits, but even so such a breach would notjustify interference by the appellants with the respondent’s operations. [22] The third question is key. The appellants confirmed that the blockades were part of a “careful and tempered plan to impedethe economic activity at the mine by blocking access”.

Even if the appellants could establish that the operation of the respondent’s minewas in some respect unlawful or contrary to the public interest, or even if they could demonstrate that the respondent was in breach of itspermits, were they entitled to the unilateral self-help interim remedy of blocking access to the mine?

The law does not recognize this typeof self-help remedy, which is inconsistent with the rule of law and fundamental democratic principles. [23] In Behn v Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 SCR 227 a number of individuals opposed to the respondent’slogging operations erected a camp that blocked its access to the logging sites. The respondent brought a tort action against thoseindividuals, who argued in their defences that the respondent’s logging licences were void because they had been issued in breach of theconstitutional duty to consult and because they violated treaty rights.

The Supreme Court confirmed that the appellants’ conduct wasunlawful: 42 In my opinion, the Behns’ acts amount to an abuse of process. The Behns clearly objected to the validity of the Authorizations on thegrounds that the Authorizations infringed their treaty rights and that the Crown had breached its duty to consult. On the face of therecord, whereas they now claim to have standing to raise these issues, the Behns did not seek to resolve the issue of standing, nor did theycontest the validity of the Authorizations by legal means when they were issued.

They did not raise their concerns with Moulton after theAuthorizations were issued. Instead, without any warning, they set up a camp that blocked access to the logging sites assigned toMoulton. By doing so, the Behns put Moulton in the position of having either to go to court or to forgo harvesting timber pursuant to theAuthorizations it had received after having incurred substantial costs to start its operations.

To allow the Behns to raise their defencebased on treaty rights and on a breach of the duty to consult at this point would be tantamount to condoning self-help remedies and wouldbring the administration of justice into disrepute. It would also amount to a repudiation of the duty of mutual good faith that animates thedischarge of the Crown’s constitutional duty to consult First Nations. The doctrine of abuse of process applies, and the appellants cannotraise a breach of their treaty rights and of the duty to consult as a defence.

The paragraphs in the Behns’ statement of defence challenging the validity of the Authorizations were struck out. Not only was theirdefence without merit, there were regulatory and judicial processes available to them to challenge the Authorizations, and the resort toself-help remedies was illegal. [24] The appellants’ conduct of blocking the Tote Road and the airstrip is indistinguishable from what happened in MoultonContracting. The appellants do not refer to a single reported decision in which self-help remedies like blocking roads and infrastructurehave been tolerated.

As stated in R. v Manuel, 2008 BCCA 143 at para. 62, 293 DLR (4th) 713: 62 The appellants testified that they were familiar with Delgamuukw [v British Columbia, (SCC), [1997] 3 SCR 1010]and the concept of aboriginal law and aboriginal title. As such, they must be taken to be aware of the attendant uncertainties and theprocesses for reconciliation of aboriginal and common law perspectives on land ownership, and that none of those processes includes

blockades of highways. Such “self-help” remedies are not condoned anywhere in Canadian law, which includes aboriginal, common, and criminal law, and they undermine the rule of law.

This line of reasoning has consistently been applied, for example in R. v Graham (1888), 16 Cox CC 420 at pp. 429-30, 432-33; R. v Thomas , [1971] 2 WWR 734 at p. 740, 2 CCC (2d) 514 (BC Cty Ct) ; Batty v Toronto (City) , 2011 ONSC 6862 , 108 OR (3d) 571; Husby Forest Products Ltd. v Jane Doe , 2018 BCSC 676 at paras. 42-43 , 24 CPC (8th) 158; Coastal GasLink Pipeline Ltd. v Huson , 2019 BCSC 2264 at para. 159 ; Canadian Pacific Railway Ltd. v John Doe , 2020 BCSC 388 at paras. 66-67 , 35 BCLR (6th) 118; Foxgate Developments Inc. v Jane Doe , 2022 ONSC 7035 at paras. 100-103 ; and Enbridge Pipelines Inc. v Williams , 2017 ONSC 1642 at paras. 29-32 , 72. [ 25 ] The appellants argue in their factum: In the case at bar, given that the [Nunavut Impact Review Board] hearings are currently underway and expected to conclude within the coming months, the impugned injunction is, in effect, a final order.

The interlocutory injunction will bar the defendants from engaging in direct action at the site pending a determination at trial; however the trial will not occur until months or years after the NIRB hearings will have concluded and a decision on the plaintiff’s expansion application will have been made. (Factum at para. 88, emphasis added) That is the whole point. There are legal processes in place to address the appellants’ concerns: the Nunavut Impact Review Board hearings, and a trial of this action.

In the interim, the appellants were not entitled to any self-help remedy including “direct action” at the mine site. If the appellants wanted an interim order retracting the respondent’s permits, or an interim injunction halting operations at the mine, the rule of law required that they apply for those remedies from the appropriate court, regulator or tribunal. [ 26 ] In

summary, there is no merit to the appellants’ position. They have not denied the key allegations made against them by the respondent: trespass and interference with economic relations. [2] Their proposed defence of protecting the environment and traditional hunting rights by blocking infrastructure is not recognized in law. Procedural Issues [ 27 ] The appellants’ primary argument is that the procedures followed in granting the injunction were unfair.

They argue they received inadequate notice, denying them notice of the case they had to meet, and denying them a reasonable opportunity to instruct counsel and be heard in their own language.

They also argue that the chambers judge erred by rendering a decision before cross- examination had occurred, and therefore without having regard to the evidence available after cross-examination. [ 28 ] Injunction applications without notice are provided for in the Rules : 445 A party to a pending or intended proceeding may apply for an interlocutory injunction or a mandatory order. 446(1) An application under rule 445 may be made without notice, but any order granted on the application shall be limited in its application to a period not exceeding 10 days.

(2) Where an interlocutory injunction or a mandatory order is granted on an application without notice, an application to extend the injunction or mandatory order may be made only once (

a) on notice to every party affected by the order: or (

b) without notice to a party, where the judge is satisfied that, because the party has been evading service or because there are other exceptional circumstances, the injunction or mandatory order ought to be extended.

(3) An extension may be granted on an application without notice under subrule (2)(

b) for a further period not exceeding 10 days. The Rules leave a significant amount of flexibility in the procedure to be followed, and in particular the specified time limits can be enlarged or shortened under R. 713. Appeal v. Review [ 29 ] A threshold problem is that the appellants have pursued the wrong remedy; interim injunctions should be reviewed, not appealed: Tiger Calcium Services Inc v Sazwan , 2017 ABCA 316 at para. 54 , 58 Alta LR (6th) 209; Canadian Broadcasting Corp v Manitoba , 2021 SCC 33 at para. 98 , 461 DLR (4th) 635.

Instead of seeking the review of the interim injunction order based on a supplemented record (including transcripts of cross-examination on the affidavits), the appellants launched this appeal. Unless there was a successful fresh evidence application, the appeal will be decided on the same record that was before the chambers judge. The procedures the appellants complain of are those that usually flow from the granting of a without notice order, which it is anticipated will be reviewed once notice has been given and the record enhanced.

That review would be de novo , based on an updated record, and the appellants would not face the appellate standard of review: Tiger Calcium at paras.169, 173. Proceedings Without Notice [ 30 ] Various stages are contemplated in the granting of an interim injunction without notice. [3] They unfolded in this case as follows: (

a) The initial application can be made at any time without any notice. In this case that happened on Tuesday February 9, 2021 when the respondent appeared for the first time before the chambers judge. On that occasion the chambers judge deferred the application

until the next day, to at least provide some notice to the appellants. (

b) The matter came before the court again on February 10, 2021. Whether that was an application on very short notice, or a continuation of the without notice application is of little consequence. The notice was admittedly short, and the chambers judge dealt with the application based on a one-sided record filed by the respondent. The proceedings that day are best analyzed as a continuation of the without notice application. On that occasion the chambers judge granted an interim order to ensure that the employees would be allowed to leave the mine site. (

c) The matter was then adjourned over to February 13, 2021. On that date the decision was reserved, resulting in the granting of the injunction which is the subject of this appeal on March 2, 2021. The injunction was not specifically limited to 10 days as required by R. 446(1). The chambers judge apparently considered it to be an interlocutory injunction which would remain in force until trial: reasons at paras. 19-21. While not time limited it did provide that it could be reviewed at any time on two days notice. (

d) Cross examinations on the affidavits occurred on February 18-19, 2021, while the February 13 decision was under reserve, apparently with a view to having the injunction reviewed before trial: 2021 NUCJ 22 at para. 25 . That, however, never happened. The injunction was not brought forward for review based on new evidence potentially obtained during the cross examinations, nor has the action been advanced to trial. Instead, this appeal was launched. [ 31 ] The reasons discussed the various types of injunctions and the relevant Rules : reasons at paras. 17-21.

There is admittedly some ambiguity in the nature of the proceedings on February 13 which resulted in the decision now under appeal. The application proceeded on short notice, without the appellants having an effective right to supplement the record. In that respect it appeared to be a continuation of the without notice proceedings. Rule 383(2) requires five clear days notice of an application, although that time can be abridged or enlarged by the court under R. 713.

The Rules contemplate that the without notice order will be in force for 10 days, it will then be reviewed on notice, and potentially will stay in force until trial or until set aside. The order granted was not limited to 10 days as contemplated by R. 446. In that respect, it appeared to be an interlocutory order that would be in place until trial. It would have been preferable if the order had contained a limit on how long it would be in effect.

However, in the end, this ambiguity does not affect the outcome. [ 32 ] The chambers judge was obviously satisfied, based on the urgency of the matter, that the respondent was at least entitled to some interim relief. Rather than adjourning to allow for cross-examination, the trial judge heard the application, ultimately ruling on March 2, 2021 that the matter could be brought back before the Court on two days notice for review on a better record.

Clearly, the March 2 injunction was not issued after consideration of the appellants’ materials, supplemented by the cross-examination on affidavits, and the hearing of full argument. Therefore, it is in the nature of an interim injunction and any review pursuant to the terms of the order would be de novo . Cross-examination occurred while the decision was under reserve and the appellants have had, and continue to have, the ability to apply for review on two days notice.

Fairness of the Procedures [ 33 ] First, when considered in context, it is clear that the appellants’ procedural arguments have no effect on the outcome of these proceedings. Recognizing that the appellants’ position in this litigation is without merit renders most of the procedural issues moot. Admitting that they did in fact block the Tote Road and the airstrip made cross-examination of the respondent’s affiants largely redundant; nothing that those witnesses could have said would have afforded a defence to the action.

The evidence they proposed to gather on other aspects of the test for an injunction would, in the normal course, have been available to them on a review of the order. [ 34 ] Secondly, the record confirms the proceedings on both February 10 and 13 were interpreted for the appellants. It appears from the February 10 transcript that the chambers judge required the participation of an interpreter despite appellants’ then counsel’s offer to interpret for her clients.

Similarly, it appears from the February 13 transcript that an interpreter participated (although the transcript at the outset appears to misidentify appellants’ counsel as the interpreter). [ 35 ] Thirdly, since the appellants initiated the dispute by their unilateral action of blocking access to the mine, they cannot realistically argue that they did not know the “case they had to meet”. That case was generated by their own actions, which they must have known would be objected to by the respondent. The impact that their actions would have on the respondent’s legal and economic rights was obvious and intended.

Cross-examination [ 36 ] The appellants point out that cross-examination on affidavits is generally permitted. That is so, but the timing of cross- examination is not fixed. It is obviously impractical to have cross-examination if no notice is given, or where the application is decided (as here) on an essentially without notice basis, based on a one-sided record filed by the respondent. The urgency of the matter did not permit an adjournment for cross-examination at that time, and the chambers judge was obviously satisfied that the respondent was entitled, at a minimum, to some interim relief.

Rather than adjourning to allow cross-examination, the trial judge granted the injunction, recognizing that it could be brought back for review on a better record, on two days notice. [ 37 ] This is not a case where the respondent’s affiants refused to submit to cross-examination or where cross-examination was denied. That cross-examination took place. If there was any relevant evidence disclosed in that process it was open to the appellants to bring an application to set aside the injunction.

That is the process contemplated by R. 446 and was the remedy available to the appellants: Tiger Calcium at para. 54; Canadian Broadcasting Corp at para. 98 . That, apparently, was the direction being followed: 2021 NUCJ 22 at para. 25 . Appealing the initial injunction, which was always open to review, was not a viable alternative remedy.

Summary

[ 38 ] Injunction applications almost always occur in urgent circumstances, as was the case here. The chambers judge ensured at least some notice before the interim injunction hearing, made herself available on a Saturday to hear the second application and included in the second injunction the possibility of a review on very short notice. The appellants have complained about various procedural shortcomings, however it was their actions which gave rise to what was found to be an urgent situation. Understandably, the chambers judge felt compelled to address that urgent situation in a timely fashion.

Having decided to resort to a unilateral self-help remedy which created the urgent situation, rather than accessing legal procedures in place to protect the rule of law, the appellants cannot legitimately complain in this case that the procedures followed were not, from their point of view, ideal. The Granting of the Injunction [ 39 ] The parties agree on the three-part test for the granting of an interlocutory injunction:

a) the applicant can show a serious issue to be tried,

b) the applicant will suffer irreparable harm if the injunction is not granted, and

c) the balance of convenience favours granting the injunction. [ 40 ] In this case the first part of the test is clearly met. Not only did the respondent show a serious issue to be tried, the appellants admitted the respondent’s allegations, and have been unable to demonstrate any lawful defence to their actions. [ 41 ] Shutting the mine down and confining the miners to the mine site clearly supports the chambers judge’s finding of irreparable harm.

The chambers judge addressed the appellants’ main argument that the need for injunctive relief had abated and made no error in concluding that the test for injunctive relief had nevertheless been satisfied. [ 42 ] Finally, the balance of convenience clearly favours the respondent. The injunction would not prohibit the appellants from carrying out protests and expressing their views in suitable locations within the territory where a protest would be seen and heard: reasons at para. 51. As noted, the appellants left the mine site shortly after the interim injunction was granted.

If, as now alleged, they had no intention of returning the injunction had no practical effect on their conduct. [ 43 ] The appellants note that an injunction is an equitable remedy, and that the applicant must come to court with “clean hands”.

A related doctrine is that an applicant for without notice relief must make full and candid disclosure to the court. [ 44 ] The appellants argue that at the first hearing on February 9, 2021 the respondent told the chambers judge that the workers were being prevented from leaving the mine site but did not tell her that the appellants had “collectively” decided to let them leave. No order was granted that day, and the next day the chambers judge was made aware of that fact: transcript February 10, 2021, p. 5, l. 1-4. The chambers judge still determined that the respondent was entitled to an injunction.

Counsel only represented some of the protestors and was not able to provide assurances that the appellants would not return: reasons at paras. 27, 33. The chambers judge noted information indicating the appellants might revive the impugned activities and found the respondent’s business operations that were at risk so long as the protestors’ concerns remained unresolved: reasons at paras. 27, 38.

The respondent was not required to remain at risk that some or all of the protestors would change their mind and block access again. [ 45 ] Further, the respondent’s representations were accurate because the appellants had in fact prevented workers from leaving the mine site by blocking the Tote Road and the airstrip. As noted, they admit blocking access for several days, but then asserted that they “collectively decided to allow the plaintiff’s workers and personnel to leave the Mary River site at the next shift change” (Factum at para. 18).

The appellants had no lawful ability to place conditions or limitations on the activities of the respondent or its employees. The employees had a right to unimpeded access to the mine site, without having to meet any conditions, limitations or demands imposed by the appellants. By asserting the right to decide when the employees could leave, the appellants implicitly asserted the right to decide that they could not leave.

The appellants’ assertion of control over the movement of the employees confirms that they were impeding the movement of the employees. [ 46 ] The appellants also complain that the respondent relied on the possibility of there being confrontations (and even violence) at the site of the blockades. They assert their opinion that such violence would only have been instigated by the respondent’s own employees, and the respondent cannot rely on it to justify the injunction. The respondent, however, was entitled to take note of the potential for confrontation that is inherent in any blockade.

The respondent did not need to wait for an actual confrontation to take place before seeking a remedy. Further, it was the appellants who created the potential for a confrontation by their unilateral action in establishing the blockade. They cannot argue that they have no responsibility for foreseeable consequences. [ 47 ] The appellants cannot rely on equitable doctrines to shift onto the respondent the moral responsibility for the situation they themselves created. The respondent did not offend any principles of equity by using court processes to defend itself against the unlawful blockade.

Conclusion [ 48 ] In conclusion, the appellants have failed to disclose any reviewable error in the granting of the injunction, including in the procedures followed. The appeal is dismissed. Appeal heard on September 19, 2023 Memorandum filed at Iqaluit, Nunavut

this 18th day of October, 2023 Slatter J.A. Authorized to sign: Hughes J.A. Fagnan J.A. Appearances: T. Kruger G. Bourke for the Respondent A. Crawford for the Appellants _______________________________________________________ Corrigendum of the Memorandum of Judgment _______________________________________________________ The style of cause has been updated to correctly reflect the parties. Counsel for the respondent has been corrected. [2] If the Tote Road qualifies as a “highway”, the acts of the appellants in obstructing it would also appear to be an indictable offence under s. 423(1) (

g) or 430(1) of the Criminal Code . [3] There is a conceptual difference between an “interim” injunction and an “interlocutory” injunction: see R.J. Sharpe, Injunctions and Specific Performance at 2.3, online (4 October 2023) (Proview) Thomson Reuters Canada, and the reasons at paras. 18-20. The Rules are flexible and accommodate a wide range of orders, arising through different procedures. The label applied is not fundamental to the underlying principles and does not affect the outcome of this appeal.