CANADIAN NATIONAL RAILWAY COMPANY, – v. –, 2023 NBKB 217

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Canadian National Railway Company v. John Doe, Jane Doe, Persons Unknown 2023 NBKB 217 MC/812/2023 BETWEEN: CANADIAN NATIONAL RAILWAY COMPANY, – and – JOHN DOE, JANE DOE, PERSONS UNKNOWN DECISION BEFORE: Justice Robert M. Dysart AT: Moncton, New Brunswick DATE OF HEARING: December 5 & 6, 2023 DATE OF DECISION: December 6, 2023 (orally) APPEARANCES: Dominique Fontaine, for the Plaintiff

DYSART, J. ( orally ) INTRODUCTION [ 1 ] On this motion, Canadian National Railway Company seeks an interim quia timet injunction on an ex parte basis which would effectively restrain all persons from trespassing upon CN's railway lines in New Brunswick, and specifically would restrain any blockades or disruptions to CN's operations in New Brunswick and those of other users of the railway lines, specifically VIA Rail’s passenger service. [ 2 ] The basis for this request is the fact that various protesters identifying generally as “Shut Down for Palestine” have carried out blockades of CN railway lines in Winnipeg, Regina and, most recently, Montreal.

Those blockades, conducted over the last few weeks were intended to garner support for a ceasefire in the current Israel-Hamas conflict in Gaza. These blockades have resulted in significant interruptions in CN's operations, which CN maintains is an integral part of Canada’s economy, moving goods from coast to coast. [ 3 ] CN maintains that its New Brunswick railway lines are part of the network which connects the Port of Halifax, Nova Scotia with customers in other parts of the country.

According to the evidence, this railway line accounts for some $5 billion in goods being transported annually, indicating the financial impact of any disruption to CN's operations and on Canada’s economy as a whole. [ 4 ] CN maintains that even brief blockades of its railway lines, for an hour or two, can result in disruptions to its operations of many times that duration, as was the case with the blockades in Winnipeg, Regina and Montreal. [ 5 ] CN also maintains that blockades of its railway lines represent a serious risk to public safety, including the safety of both protesters and CN personnel, which seems obvious. [ 6 ] The protest movement behind these blockades does not, based upon the evidence before the Court, appear to have any centralized leadership; rather, it appears to be more of a “grass roots” movement, spurred by smaller local groups and vocal individuals who have made social media posts, given interviews to media outlets and who have created an Instagram account under the name “goodtroublenetworkyqr” - all of which establishes that those individuals are calling upon others across Canada to join in their efforts and to take actions including blockades of CN railway lines in an effort to impact the economy, and specifically companies which they associate with being economically tied to Israel, in order to raise awareness and to ultimately achieve a ceasefire of the conflict in Gaza. [ 7 ] The evidence before the Court suggests that these calls to action have been made by such organizations as “Queers for Palestine – Winnipeg” and by individuals who participated in the protests in Winnipeg, Regina and Montreal. [ 8 ] CN has also identified one website, www.shutitdown4palestine.org , which has called for a day of action in support of a ceasefire, to be held on December 8, 2023, just two days from today's date.

That website calls on protesters to take various specific actions, including: • A walk-out from work or school; • picketing Israeli embassies and consulates; • picketing specific companies which the organizers allege are profiting from Israel’s military actions - which does not include CN, I might point out; • hosting “Speak Outs”; • wearing keffiyehs; and • wearing black arm bands. [ 9 ] There is no specific call to blockade railway lines, however.

That said, the website includes a link to a toolkit page, which then directs users to various ways in which they might take action in support of this cause, including blockades in general - without specifying blockades of railway lines.

[ 10 ] CN also points to what appears to be a statement issued online by a group identified as “Press-Toi à Gauche!” which appears to be based in Montreal. According to that statement or manifesto, which is dated December 5 th , the group states that the people of Montreal had responded to the call from “Shut it Down for Palestine” and had blockaded railway lines in an effort to force the Prime Minister to call for a ceasefire in Gaza.

The statement, which attributes certain statements to individuals who participated in the Montreal blockade, then specifically calls the reader’s attention to the link between CN and what it describes as an Israeli shipping company and focuses on the movement of goods between Canada’s ports on CN’s rail lines.

The post then states that the Montreal blockade harkens to the 2020 blockades of rail lines by Indigenous groups and their supporters who were protesting pipelines in Canada. [ 11 ] While there is no dispute that those who were involved in the blockades in Winnipeg, Regina and Montreal have made public calls to action, including calls to blockade rail lines, CN has not identified any evidence of any plans by any group or persons in New Brunswick to target CN's railway lines in this province. [ 12 ] Effectively, CN argues that the fact that the national movement has gained momentum, it amounts to a likelihood that individuals or groups will erect blockades on its rail line in New Brunswick.

THE LAW [ 13 ] As noted, CN seeks an interim quia timet injunction in this case on an ex parte basis. [ 14 ] Effectively, a quia timet injunction is a pre-emptive or anticipatory injunction, intended to enjoin parties from doing something before they have done it. In this case, CN acknowledges that there have been no blockades in New Brunswick. [ 15 ] CN cites the very recent unreported decision of Justice Papageorgiou of the Ontario Superior Court of Justice in Canadian National Railway Company v. John Doe et al. , Court File CV-23-710128, a decision rendered on Monday of this week.

That case involved an effectively identical application by CN to the current matter. [ 16 ] In that case, Justice Papageorgiou outlined the law pertaining to quia timet injunctions, which involves a modified test from that set out in the benchmark decision of RJR McDonald Inc. v. Canada (Attorney General), [1994] SCR 311. Specifically, the first branch of the test relating to whether the moving party has proven that there is a serious issue to be tried is modified to require something more from the moving party.

As stated by Justice Papageorgiou at paragraph 10: “While vague evidence about intended protests is insufficient for the purposes of a quia timet injunction, Courts have held that where the evidence is clear and specific about the conduct that will take place, and there is a high degree of probability that the trespass will occur, this is grounds to order a quia timet injunction.” [ 17 ] A similar statement of the law pertaining to anticipatory interim injunctions was made by Justice Tochor of the Saskatchewan Court of King’s Bench in another motion brought by CN, in a case called Canadian National Railway Company v.

Mandla Mthembu, John Doe et al., Court file KGB-RG-02648-2023, a decision rendered just last week. [ 18 ] Ultimately, both the Courts in Ontario and Saskatchewan granted CN’s motions.

I note that in Saskatchewan, the matter named a particular respondent, Mandla Mthembu, who is identified in the evidence before this Court as one of the spokespersons who gave media interviews in relation to the blockade in Regina – meaning that that person had already participated in a blockade in that province. [ 19 ] In Ontario, there was no evidence of blockades in that province, and Justice Papageorgiou granted CN’s request on the basis of evidence that was substantially similar, if not identical, to the evidence before me. That said, that decision is not binding upon this Court, as CN acknowledges.

I would also remark that Justice Papageorgiou’s decision offers little insight into the Court’s analysis of the evidence. [ 20 ] It must be recalled that an injunction is an extraordinary remedy; an ex parte injunction is an even more extraordinary remedy. An anticipatory injunction, before any trespass or interruption has occurred, is a still more extraordinary remedy which must be reserved for only the clearest of cases. As stated, it should not be granted unless there is clear and specific evidence about the conduct that will take place, and there is a high degree of probability that the trespass will occur.

[ 21 ] A risk that something will occur is not enough. A real and serious possibility that something will occur is not enough, either. That is so even where the potential harm is great. [ 22 ] In the circumstances of this case, I would have no difficulty in concluding that blockades of CN’s railway lines in New Brunswick would amount to irreparable harm to CN.

It would amount to an unlawful trespass on CN’s property, and I am satisfied that the balance of convenience, were the other parts of the test met, would likewise be met. [ 23 ] But in the particular circumstances before this Court, and with the greatest respect, I am unable to agree with Justice Papageorgiou. I am not satisfied that CN has provided the Court with evidence that any group or any person is planning to blockade its railway lines in New Brunswick.

Plainly stated: there is no clear and specific evidence that the conduct complained of is highly likely to occur. [ 24 ] The threats to CN’s railway lines are so vague, in fact, that counsel for CN acknowledges that they do not know whom to serve with any Order granting the injunction, and that when the matters returns to the Court within 10 days, as would be required by Rule 40 of the Rules of Court, it is likely that there would be no respondent present to argue against an extension. [ 25 ] While the Court is sympathetic to CN’s concerns, and while the Court acknowledges the potentially significant impacts that a blockade would have on CN’s operations and the economic wellbeing of its customers and, indeed, to the country’s economy, the law reserves such anticipatory injunctions to only the clearest of cases, and this is simply not one of them.

DISPOSITION [ 26 ] CN’s motion for a quia timet injunction on an ex parte basis is therefore dismissed. CN shall be at liberty to re-file for such an injunction should it be in a position to provide the Court with the evidence which is currently lacking. DATED at Moncton, New Brunswick this 6 th day of December 2023. _____________________________________ Robert M. Dysart, Judge of the Court of King’s Bench of New Brunswick