2014 MBCA 6, 2014 MBCA 6

Citation: Hudson Bay Mining & Smelting Co., Limited Date: 20140120 v. Dumas et al., 2014 MBCA 6 Docket: AI 13-30-07949 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN: HUDSON BAY MINING & SMELTING ) CO., LIMITED ) ) J. N. Falconer (Plaintiff) Respondent ) for the Appellants ) - and - ) J. M. Woolley and ) M. C.

RossARLEN DUMAS, in his capacity as Chief ) for the Respondentof MATHIAS COLOMB CREE ) NATION, on behalf of himself and all ) Appeal heard:other members of MATHIAS COLOMB ) October 30, 2013CREE NATION, PAMELA PALMATER, ) JOHN DOE, JANE DOE and persons ) Judgment delivered:unknown ) January 20, 2014 ) (Defendants) Appellants ) MAINELLA J.A. I.

INTRODUCTION AND ISSUES [1] An injunction to curtail protests on a mining road in northern Manitoba raises on appeal delicate questions concerningthe limits of the permissible exercise of the right of freedom of speech, and the appropriateness of an order of costs in a case of civildisobedience. [2] The Mathias Colomb Cree Nation (the MCCN) disputes the right of Hudson Bay Mining & Smelting Co., Limited(Hudbay) to conduct certain mining operations because it says it was not consulted and has not consented to them. [3] On two occasions, protestors, including Arlen Dumas, Chief of the MCCN (Chief Dumas) and Pamela Palmater (MsPalmater), an organizer with the social movement “Idle No More,” peacefully protested on the access road for Hudbay’s Lalor Projectnear Snow Lake, Manitoba.

Unrestricted access for the Lalor Project was interrupted during each protest. [4] Hudbay sued and moved for an interlocutory injunction to prevent interference with its access rights for the LalorProject and the other disputed Hudbay operation near Flin Flon, Manitoba (the Reed Project). [5]

Section 2(

b) of the Canadian Charter of Rights and Freedoms (the Charter) does not apply to a private dispute such asthis one (see RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573 at 597). Rather, the appellants resisted theinjunction based on a law unique to Manitoba designed to protect the right of freedom of speech.

Section 57 of The Court of Queen’sBench Act, C.C.S.M., c. C280 (the Act) states in part: No injunction re freedom of speech

57(1) Subject to subsection (3), the court shall not grant an injunction that restrains a person from exercising the right to freedom of speech. [ 6 ] The motion judge found that the protests included unlawful blockades. He granted Hudbay an injunction preventing blockading of the Lalor and Reed Projects. He also ordered costs against the appellants. [ 7 ] The appeal raises three issues: (

i) Does s. 57(1) of the Act prevent the issuance of an injunction against the appellants’ peaceful protests? (ii) Did the motion judge err in the exercise of his discretion to grant the injunction? (iii) Did the motion judge err in the exercise of his discretion to award costs against the appellants? [ 8 ] For the reasons that follow, I would dismiss the appeal, except in one respect. In

summary, there is no basis to interfere with the decision to grant the injunction, save it encompassing the Reed Project. That location was never blockaded. All that occurred was Hudbay received a written demand to stop work there. Based on s. 57(1) of the Act , such communication cannot be reason alone to issue an injunction for that location. On the question of costs, there is no reason to disturb the motion judge’s decision. II. BACKGROUND Hudbay’s Operations and the MCCN [ 9 ] Hudbay is a large mining company. [ 10 ] The MCCN is a community of approximately 3,000 people.

The major population centre is Pukatawagan, Manitoba, which is approximately 125 kilometres north-west of the Lalor Project and 150 kilometres north-west of the Reed Project. [ 11 ] Hudbay has an ownership interest in the land and has mineral rights from the Province of Manitoba for the Lalor and Reed Projects. [ 12 ] Hudbay has constructed private access roads from the Lalor and Reed Projects to the nearest provincial roads which are the only means of access to the Lalor and Reed Projects. [ 13 ] The access road for the Lalor Project runs west for three kilometres from Provincial Road 395 through Hudbay’s Chisel North Mine (which ceased operations in 2012) to the Lalor Project.

The MCCN’s Land Claim [ 14 ] The Lalor Project is currently focussed on exploration with some limited mining through a ventilation shaft. Hudbay holds appropriate provincial licences for these operations. Hudbay wishes to convert the Lalor Project into a large, integrated mine where ore would be mined and milled. On May 4, 2012, Hudbay applied for a class 2 development licence under The Environment Act , C.C.S.M., c. E125, for this expansion.

The provincial licensing decision process is not yet complete. [ 15 ] The Reed Project is a mining project that is in an early stage of development and is being constructed. [ 16 ] Although the Lalor and Reed Projects fall outside the MCCN’s acknowledged reserve and treaty lands, the MCCN claims these mining operations lie on their ancestral and traditional territory.

The MCCN says consultation in the provincial licensing process has been inadequate and only it, not the Province of Manitoba, can licence such mining development. [ 17 ] Hudbay says it has obtained all necessary approvals and permits for its current operations at the Lalor and Reed Projects. Hudbay says it has engaged in dialogue with the MCCN and provided resources and technical assistance for the MCCN to participate in the provincial licensing process.

First Protest at the Lalor Project – January 28, 2013 [ 18 ] Before the first protest the MCCN issued a press release advising that a “Stop Work Order” for the Lalor Project would be issued and enforced. Hudbay’s lawyer wrote to the MCCN’s lawyer expressing concern over interference with operations during the planned protest. Hudbay requested that the protestors respect its right of access for the Lalor Project. [ 19 ] The first protest at the Lalor Project occurred on January 28, 2013. It lasted from 12:00 p.m. to 4:45 p.m.

Hudbay staff closed the gate on the access road from Provincial Road 395 to the Chisel North Mine and the Lalor Project for safety reasons. The protestors peacefully protested on the access road and the shoulder; they were not asked to leave. Chief Dumas informed the RCMP officers present that, in an emergency, he would permit access to or from the Lalor Project. Twice during the protest Chief Dumas allowed staff members to leave. [ 20 ] Chief Dumas delivered to Hudbay staff a “Stop Work Order” demanding a halt to all work at the Lalor Project and also posted a copy on a Hudbay sign on the access road.

After the protest, Chief Dumas wrote to Hudbay and provincial officials demanding that the order be respected pending accelerated negotiations over the MCCN’s land claim. [ 21 ] Although no barricades were erected, Hudbay’s unrestricted right of access for the Lalor Project was denied by the

protestors. Hudbay halted the hauling of waste and ore. Mine workers were intentionally delayed leaving the Lalor Project at the end oftheir shift for an hour and 15 minutes. The RCMP officers present described the scene as a blockade. [22] On January 30, 2013, Chief Dumas wrote to Hudbay’s lawyer about the protest. The letter stated in part: Our intended event for Monday, January 28, 2013 was to hold a peaceful gathering of our people and engage in our traditional activitieson our territories for the day.

After receiving your letter, which threatened both legal action and implied force to stop our peacefulassembly, we decided that our peaceful gathering should also include a strong message to Hudbay about our resolve. Thus, we includedboth a STOP WORK order and temporarily prevented access to and from the site during our gathering. [emphasis added] Protest at the Reed Project – March 5, 2013 [23] On the morning of March 5, 2013, Chief Dumas went to the Reed Project. He delivered a “Stop Work Order”demanding the halt of all work at the Reed Project. No other protest occurred.

No efforts were made or planned to restrict Hudbay’saccess to the Reed Project. Second Protest at the Lalor Project – March 5, 2013 [24] A second protest of the Lalor Project was planned for the afternoon of March 5, 2013. Hudbay and the RCMP weregiven prior notice. [25] The second protest of the Lalor Project was similar to the first one. It began at 12:30 p.m. and ended at 3:45 p.m. Again, the gate on the access road from Provincial Road 395 to the Chisel North Mine and the Lalor Project was closed by Hudbay stafffor reasons of safety.

The protestors peacefully protested on the access road and the shoulder; they were not asked to leave. [26] Chief Dumas delivered another “Stop Work Order” to Hudbay staff demanding a halt to all work. Again, although nobarricades were erected, Hudbay’s unrestricted right of access for the Lalor Project was denied by the protestors. For a second time,Hudbay halted the hauling of waste and ore. Once more, the RCMP officers present described the scene as a blockade. [27] After the second protest, Ms Palmater posted pictures on the internet through her account on the social media websiteTwitter.

In her description of the photos for the internet audience she commented (i.e., “tweeted”): “Chief Arlen Dumas MathiasColomb Cree Nation and community members block access to Hudbay’s Lalor mine today.” Hudbay’s Injunction Motion [28] On March 11, 2013, Hudbay commenced an action alleging the protests of the Lalor and Reed Projects amounted to thetorts of: trespass, intimidation, interference with contractual relations, interference with economic relations by unlawful means andnuisance.

Hudbay immediately moved for an interlocutory injunction to stop the blockades. [29] The motion judge ruled that, although the protests on the access road for the Lalor Project were of short duration, theywere a blockade. Despite the claim of the exercise of the right of freedom of speech, he determined on the basis of the criteria in RJR --MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, that an injunction should be granted toHudbay. [30] The motion judge accepted Hudbay’s claim that without unrestricted access it would suffer irreparable harm that couldnot later be remedied by damages due to the limited financial resources of the appellants. The motion judge accepted that Hudbayrequires unimpeded access for reasons of mine safety, orderly operations and fulfilment of contracts.

He determined that, due to hightraffic volumes at the Lalor Project, a blockade of the access road is “extremely serious.” [31] The motion judge decided that the balance of convenience heavily favoured granting an interlocutory injunction toHudbay. His reasoning was that the injunction granted was limited to ending the blockades and did not otherwise curtail lawful protest.

The motion judge described the injunction as follows: .... ... [W]hat the defendants will be required to do is simply terminate the blockading of the plaintiffs’ operation in the mannerimpugned. .... [32] Over the objection of the appellants, the motion judge awarded Hudbay tariff costs on the injunction motion in anyevent of the cause. III. DISCUSSION

The Applicability of s. 57 of the Act to the Protests Introduction [33] While s. 57(1) of the Act eliminates the remedy of an injunction if the conduct in question is a permissible exercise ofthe right of freedom of speech, causes of action and other remedies, such as damages, are not affected (Channel Seven Television Ltd. v.National Association of Broadcast Employees & Technicians AFL-CIO-CLC (1971), (MB CA), 21 D.L.R. (3d) 424 at432 (Man. C.A.); and Gameday Publications Ltd. v.

Keystone Agricultural and Recreational Centre Inc. et al. (1999), (MB CA), 134 Man.R. (2d) 50 at para. 23 (C.A.)). [34] In deciding whether to set aside Hudbay’s injunction, this court is required to consider the motion judge’s blockadefinding, whether the protests were a permissible exercise of the right of freedom of speech, and ultimately, whether there is any reason todisturb the motion judge’s discretionary decision to grant the injunction.

Standard of Review [35] An appeal court cannot simply substitute its discretion for that of a motion judge as to whether to grant an interlocutoryinjunction (Manitoba (Attorney General) v. Metropolitan Stores Ltd., (SCC), [1987] 1 S.C.R. 110 at 154-155). Thestandard of review was stated by Chartier J.A. (as he then was) in Insurance Council of Manitoba v. Tomlinson et al., 2007 MBCA 143,220 Man.R. (2d) 258, as follows (at para. 20): The granting or refusal of an interlocutory injunction is a discretionary order.

Where the issue concerns the exercise of a judge’sdiscretion, the appellate court will be justified in intervening only if the judge has misdirected him or herself or if his or her decision is soclearly wrong as to amount to an injustice (see Elsom v. Elsom, (SCC), [1989] 1 S.C.R. 1367; 96 N.R. 165). Functional equivalence of “clearly wrong” is “unreasonable” or “palpable and overriding error” (see H.L. v. Canada (Attorney General),2005 SCC 25 at para. 110, [2005] 1 S.C.R. 401). Position of the Parties [36] The appellants say that the blockade finding was a palpable error.

They argue that characterization is an exaggeration;what actually occurred was peaceful and responsible protesting. Emergency access was never denied to Hudbay and they consulted theRCMP to ensure the safety of everyone. The appellants further submit that the motion judge erred in not dismissing Hudbay’s requestfor an interlocutory injunction based on s. 57(1) of the Act. Their position is that the protests were a permissible exercise of the right offreedom of speech.

Finally, the appellants claim there was no irreparable harm to Hudbay by the protests to justify the injunction. [37] The position of Hudbay is that there is no reason to disturb the exercise of discretion by the motion judge to grant theinjunction. Hudbay argues that despite their temporary nature, the protests impeded Hudbay’s operations causing it harm andendangering safety. Hudbay says the observations of the RCMP officers, the Stop Work Order(s), the press release mention of“enforcing” those orders, Chief Dumas’s January 30, 2013 letter and Ms Palmater’s tweet substantiate the blockade finding.

Hudbaysubmits that blockading a business is not a permissible exercise of the right of freedom of speech. Section 57(1) of the Act would,therefore, have no application. Analysis and Decision Finding of a Blockade of the Lalor Project [38] There was evidence before the motion judge to support his finding that the two protests were blockades. Blockadescome in various forms and with differing degrees of obstruction. History is replete with examples of blockades by protesters, some doneviolently, others not. The peaceful nature of the protests of the Lalor Project is not determinative.

Non-violent resistance is often adeliberate technique of protestors for many reasons. [39] What is germane to this appeal is that Hudbay’s unrestricted right of access for the Lalor Project was intentionallyobstructed by the protestors peacefully gathering on the access road between Provincial Road 395 and Hudbay’s gate to the mine. Theduration of the obstruction was not trifling; it lasted several hours each time. The obstruction was also intentional. Chief Dumas statedin the letter of January 30, 2013, that temporarily preventing access to the Lalor Project was part of sending a “strong message” toHudbay.

I am satisfied that the motion judge did not commit a palpable error in finding that the protests constituted blockades given therecord before him. Were the Blockades a Permissible Exercise of the Right of Freedom of Speech? Introduction [40] The jurisprudence about the right of freedom of speech confirms three truisms: 1) the right is a fundamental aspect ofdemocracy; 2) it is not an absolute right, as it may give way to a conflicting right; and 3) deciding when the harm of the speechoutweighs its benefit requires careful scrutiny of the values at stake in the circumstances.

One final comment; as freedom of speech is afundamental right enjoyed by everyone, a court must take great care to consider the implications of any limit placed on the exercise of

the right. The right to freedom of speech can only exist if there is the strongest possible judicial commitment to upholding the right andthe narrowest possible limitation of it. Limitations of the right “must be clear-cut, precise and readily controlled” (Thomas I. Emerson,Toward a General Theory of the First Amendment (Toronto: Random House of Canada Limited, 1967) at 19). The Scope of s. 57 of the Act [41] The right of freedom of speech existed at common law well before the Legislature enacted s. 57 of the Act, and thecoming into force of s. 2(

b) of the Charter (see Dolphin Delivery Ltd. at pp. 583-88). [42] The Legislature passed s. 57 of the Act with the clear intention of protecting a basic civil right of everyone; namely,freedom of speech (Manitoba, Legislative Assembly, Debates and Proceedings, 29th Leg., 2nd Sess., Vol. XVII, No. 137 (30 June 1970)at 3484, 3866). While the origins of the law lie with picketing in a labour dispute, it is not limited to that scenario (Channel Seven at p.431).

The law has been applied to commercial speech, which does not engage the core values of freedom of speech (Gameday at para.27). [43] Sections 57(2) and 57(4) of the Act define the exercise of freedom of speech as follows: “Exercise right to freedom of speech” 57(2) For the purposes of this section, the communication by a person on a public thoroughfare of information by true statements,either orally or through printed material or through any other means, is an exercise of the right to freedom of speech. “Public thoroughfare” 57(4) In this section, “public thoroughfare” includes a walk, driveway, roadway, square and parking area provided outdoors at thesite of and in conjunction with a business or undertaking and to which the public is usually admitted without fee or charge and whether ornot the walk, driveway, roadway, square or parking area is owned by the person carrying on the business or undertaking or is publiclyowned. [44] Hudbay appropriately concedes that the protesting at the Lalor and Reed Projects was an exercise of the right offreedom of speech.

As noted in R. v. Zundel, (SCC), [1992] 2 S.C.R. 731 (at p. 752): The purpose of the guarantee is to permit free expression to the end of promoting truth, political or social participation, and self-fulfilment. .... I agree with the obiter comments of Devine P.J. in R. v. Pearson, [1999] M.J. No. 311 at paras. 23-24 (QL) (Prov. Ct.), that s. 57 of theAct applies to protestors publically expressing dissent to a corporation’s business, even if it is legal.

Exceptions to s. 57 of the Act [45] As Freedman C.J.M. explained in Channel Seven, s. 57 of the Act is not an absolute guarantee of the exercise of freedomof speech (at p. 431): Basically, we are here concerned with the limits attaching to the exercise of the right of freedom of speech. That right is justly prized ina free society. But it is not absolute in nature. In certain circumstances it may have to yield to the assertion of some other right byanother member of society or to the claims of society as a whole.

For liberty is achieved through harmonizing contending interests,through a reconciliation between conflicting social values. [46] The task of a court applying s. 57 of the Act is to decide whether the conduct in question is a permissible exercise of theright of freedom of speech (see Channel Seven at p. 432). [47] In Gameday at para. 25, this court held that s. 57 of the Act should not be interpreted too broadly in light of thejurisprudence involving s. 2(

b) of the Charter. That logic is sound. The meaning of s. 2(

b) of the Charter embraces a continuum ofintellectual and expressive freedoms covering matters of both a public and private nature (see R. v. Sharpe, 2001 SCC 2 at para. 25,[2001] 1 S.C.R. 45). The language of s. 57 of the Act confirms that its focus is to protect the ability to engage in effective speech in thepublic square, in essence guaranteeing the right of every citizen to their own speaker’s corner. While important, such a guarantee ismore modest than s. 2(

b) of the Charter. [48] At common law, freedom of expression, a concept wider than freedom of speech as defined by s. 57(2) of the Act, ispresumed to be protected unless curtailment is justified (see R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002SCC 8 at para. 67, [2002] 1 S.C.R. 156). Such an approach, in my view, applies equally to s. 57 of the Act. Speech which meets the

definition in s. 57(2) of the Act is presumed to be permissible until proven otherwise by the party requesting an injunction. [49] In determining the permissible limits of the right of freedom of speech, all relevant circumstances must be considered(see Channel Seven at p. 435; and Gameday at para. 27). Relevant factors include: (

i) The conflicting values at issue. Not all speech is equally worthy of protection. Not all limits of speech are equally serious.Conflicting interests of private parties such as protection of property, contractual relationships and other economic interests may beconsidered (see Channel Seven at p. 437; Rocket v. Royal College of Dental Surgeons of Ontario, (SCC), [1990] 2S.C.R. 232 at 247; and Pepsi-Cola at para. 21); (ii) The objective(

s) of the communicator (see Channel Seven at p. 437; and Gameday at para. 27); (iii) The nature and truthfulness of the information being communicated (see Channel Seven at p. 436; and Gameday at para. 27); (iv) The means employed by the communicator in expressing his or her message (see Channel Seven at pp. 436-37; and Gameday atpara. 27); and (

v) Whether the action(

s) of the communicator are criminal or otherwise illegal. In the situation where conduct accompanying thecommunication is a tort, the tort’s nature in relation to the exercise of the right of freedom of speech must be examined (see ChannelSeven at pp. 432, 435 and 437). Were the Protests of the Lalor and Reed Projects Permissible Exercises of the Right of Freedom of Speech? [50] The protests of Hudbay’s mining operations engage the core values of freedom of speech.

The protests promoted thetruth and participation in important political issues of resource development in light of an aboriginal land claim and how, as a society, theenvironment is managed. Members of the MCCN and others showing solidarity derived self-fulfilment in expressing opposition duringthe protests. Even in a private dispute, such speech is worthy of protection. Any curtailment is a serious matter.

It can only occur if it isreasonably necessary in the circumstances. [51] The protestors’ objectives of raising public awareness and pressuring Hudbay to begin negotiations about the MCCN’sland claim do not provide any reason to limit related speech. There are also no concerns as to the truth of the statements made during theprotests (see Channel Seven at p. 436). [52] The key dispute over limiting the right of freedom of speech turns on the protestors’ conduct while protesting the Lalorand Reed Projects: (

i) Assembly and demonstration with signs at the Lalor Project; (ii) Leafleting: delivering and posting “Stop Work Order(s)” in relation to the Lalor and Reed Projects; and (iii) Blocking ingress to and egress from the Lalor Project except in case of an emergency. [53] Subject to the issue of the blockade of the Lalor Project, nothing occurred during the protests of the Lalor and ReedProjects which make necessary a limitation of the appellants’ right of freedom of speech. (

i) Assembly and demonstration with signs [54] Assembling and demonstrating with signs is activity squarely within s. 57(2) of the Act. The area where the activityoccurred, being the access road and shoulder, falls within the definition of “public thoroughfare” under s. 57(4) of the Act. The evidencebefore the motion judge was that there were no restrictions on public use of the access road from Provincial Road 395 until signage justbefore the Chisel North Mine.

This short stretch of a private road was a “driveway” between Hudbay’s mining complexes and ProvincialRoad 395. [55] For the purposes of this appeal, questions of trespass are irrelevant. Hudbay’s action for trespass is unaffected by s. 57 ofthe Act; the

section simply eliminates one possible remedy, an injunction. Also, The Petty Trespasses Act, C.C.S.M., c. P50 (the PTA),does not apply in the circumstances. There is no evidence the protestors were ever asked to leave the protest site, which is an essentialelement of the offence of trespass in an unenclosed area (see s. 1(

b) of the PTA).

Moreover, by virtue of s. 4 of the PTA, the protestorscould not be charged with the offence of trespass even if they had been requested to leave. (ii) Leafleting [56] Section 57(2) of the Act recognizes that the exercise of freedom of speech includes communication by “printed materialor through any other means.” The appellants’ distribution and posting of “Stop Work Order(s)” at the Lalor and Reed projects arepractices akin to leafleting. [57] The law has long recognized the importance of protecting leafleting because it is often used by vulnerable members ofsociety as a means to participate in the democratic process (see U.F.C.W., Local 1518 v.

KMart Canada Ltd., (SCC),[1999] 2 S.C.R. 1083 at 1103-4). Further distribution and posting of the orders during protests is not conduct which necessitates a limitof the right of freedom of speech.

(iii) Blocking ingress to and egress from the Lalor Project [58] The final action of the protestors; namely, obstructing ingress to and egress from the Lalor Project except in anemergency, is the most controversial. [59] Hudbay is not characterizing the blockades as the crime of mischief (see subs. 430(1)(

c) and (

d) of the Criminal Code(the Code)). The RCMP also did not arrest or charge the protestors for mischief, despite observing the blockades. However, whetherthe blockade constituted mischief is not determinative. Hudbay can still seek the civil remedy of an injunction (MacMillan Bloedel Ltd.v. Simpson, (SCC), [1996] 2 S.C.R. 1048 at para. 20). [60] Hudbay says that the blockade was tortious conduct, leaving it with no other alternative but to seek an injunction.

In myview, Hudbay’s property rights are significant social values which must properly be considered in deciding whether the appellants’conduct was permissible. [61] Counsel for the appellants appropriately conceded that Hudbay acted responsibly and proportionately during theprotests. Hudbay’s decision to close the gate on the access road protected both Hudbay’s property, and also the protestors’ safety lest anenthusiastic protestor got carried away and stumbled into a hazard at the Chisel North Mine or down the access road at the LalorProject.

Moreover, Hudbay properly did not escalate tensions by attempting to move large transport trucks carrying ore or waste on thenarrow unpaved access road in the dead of winter with protestors standing on it. Hudbay showed tolerance of the dissent and appropriatepatience. Hudbay also asked the MCCN to respect its right of access, but was rebuffed by Chief Dumas. Hudbay’s only alternative waslegal action. [62] In Channel Seven, Freedman C.J.M. cautioned that courts should not be quick to limit the right of freedom of speech onthe logic that whatever is wrongful must be prohibited by injunction (at p. 435). [63] The

interpretation of s. 57 of the Act by this court is clear that the commission of a tort in the exercise of the right offreedom of speech does not automatically end the protections afforded by s. 57(1) of the Act (see Channel Seven at p. 432; and Gamedayat para. 30). The court must carefully examine the nature of the tort to determine if the conduct was a permissible exercise of the right offreedom of speech. [64] Accepting Hudbay’s position that the protestors’ conduct did not violate the Code, I see no other violations of statutelaw by the protestors. For reasons explained earlier, the PTA does not apply.

Because public access was restricted on the access road byHudbay’s signage, the duties of a pedestrian under s. 140(2) of The Highway Traffic Act, C.C.S.M., c. H60, not to obstruct traffic did notapply here because the road here was not a “highway.” That limits the analysis to the common law. [65] Historically, the act of blockading lawful commercial activity for political reasons has not been tolerated by the courtsand has resulted in injunctions (see MacMillan Bloedel Ltd.; West Fraser Mills Ltd. v. Lax Kw’Alaams Indian Band et al., 2004 BCSC815 at para. 21, [2004] B.C.T.C. 815; Canadian National Railway Co. v.

Doe, 2013 ONSC 115 at para. 11, 114 O.R. (3d) 126; SunshineLogging

(2004) Ltd. v. Prior, 2011 BCSC 1044 (QL); and Repap Manitoba Inc. v. Mathias Colomb Indian Band et al. (1996), (MB CA), 110 Man.R. (2d) 125 (C.A.)). While history may ultimately vindicate a protestor’s cause, that does not meanthey have a right to communicate at any time, place or in any manner desired. [66] The labour experience confirms that the use of a blockade is an unacceptable method of dissent.

While the analogybetween protestors and picketers is imperfect, it is of some assistance as picketing in a labour dispute engages the core values of s. 2(b)of the Charter (see Pepsi-Cola at paras. 32-35). [67] Picketers cannot physically obstruct ingress to or egress from an employer’s premises during a lawful strike (RogersCable T.V. Ltd. v. International Brotherhood of Electrical Workers, Local 230 et al. (1994), (BC CA), 39 B.C.A.C.313; and Pacific Western Airlines Ltd. v.

International Union, United Automobile Aerospace and Agricultural Implement Workers ofAmerica et al. (1986), 1986 ABCA 38 , 70 A.R. 67 (C.A.)). [68] At best, there is authority from Ontario that a picketer may momentarily delay access to an employer’s premisesincidental to communicating information (see Industrial Hardwood Products

(1996) Ltd. v. Industrial Wood and Allied Workers ofCanada, Local 2693 (2001), (ON CA), 52 O.R. (3d) 694 (C.A.)). That view is controversial. Other jurisdictionshave zero tolerance for any obstruction of access during picketing (see Air Canada v. Canadian Auto Workers Union, 2011 BCSC 888 atpara. 20 (QL); and 55104 Newfoundland & Labrador Inc. v. Stockley et al., 2012 NLTD(G) 5, 318 Nfld. & P.E.I.R. 241). [69] What is not controversial is that picketing that amounts to a complete blockade of an employer’s premises in a labourdispute amounts to the tort of nuisance (see Ideal Railings Ltd. v.

Laborers’ International Union of North America, Local 183, 2013ONSC 701 at para. 43 (QL); and Brookfield Properties Ltd. v. Hoath, 2010 ONSC 6187 at para. 36, 5 C.P.C. (7th) 393). [70] It is noteworthy that the motion judge in the case of Channel Seven granted an injunction against the union forimproperly interfering with the right of employees of the television station to enter or leave its premises.

The union accepted thatlimitation on exercising the right of freedom of speech by picketing to be valid and did not appeal the injunction (at p. 427). [71] If what occurred to Hudbay was in the context of picketing during a labour dispute, the tactic of blockading the accessroad would have been illegal and would have constituted the tort of nuisance. It would also not be activity protected by the guarantees offreedom of expression at common law (see Pepsi-Cola at paras. 68-69, 92).

I agree with the union’s position in Channel Seven that theability to interfere with ingress to and egress from a business is not necessary to exercise the right of freedom of speech. [72] The law affords protestors great leeway in communicating their views. They do not have to be rational or polite. Thefact that their speech may cause economic harm is also not determinative. Communications that create bad publicity or consumer

boycotts are types of social pressures that are permissible exercises of freedom of speech. [73] Here, however, the means of inflicting harm on Hudbay is not communication resulting in bad publicity or lost sales. Rather, the harm is a true nuisance as it is a substantial and unreasonable interference with Hudbay’s use or enjoyment of the LalorProject (see Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13 at para. 19). [74] Blockading the access road causes substantial harm to Hudbay because it cannot operate. Hudbay uses the access road24 hours a day, seven days a week.

Protestors forcing a lawful business to entirely halt its operations is, in my view, a materialinterference with Hudbay’s use of the land (see Tock v. St. John’s Metropolitan Area Board, (SCC), [1989] 2 S.C.R.1181 at 1191). [75] The blockades are also unreasonable in the circumstances. While the principle issue is not the appellants’ conduct, butthe interference suffered by Hudbay, it is pertinent that the means of interference can be described as illegal activity contrary to thecommon law experience in the labour context and otherwise.

The fact that Chief Dumas did allow emergency access, while laudable, isof little moment. The character and extent of the interference with Hudbay’s property is the critical issue (see Antrim Truck Centre Ltd.at para. 28).

The emergency exception to the blockade still did not allow Hudbay to operate in the manner of its own choosing. [76] There is nothing about the character of the Lalor Project, the sensitivities of Hudbay, the frequency and duration of theinterferences or any other factor that, in my view, would mitigate the nuisance effect of the blockade (see Antrim Truck Centre Ltd. atpara. 26). [77] If a picketer during a legal strike cannot blockade a business premise, a demonstrator equally cannot to do so.

The caselaw discussed previously and the Supreme Court’s comments in Dolphin Delivery Ltd. at p. 588 allow for the law being summarized thisway. While not all actions of a protestor can be divorced from the exercise of freedom of speech, acts which involve or threaten physicalviolence or obstruction, can be. Such acts are not permissible exercises of the right of freedom of speech for the purposes of s. 57 of theAct and may be the subject of an injunction. [78] Given my comments on nuisance, it is not necessary to deal with the various business torts alleged by Hudbay.

Conclusion [79] It was reasonably necessary for the motion judge to limit the protestors’ exercise of their right of freedom of speechwhen they were exercising that right by obstructing ingress to and egress from the Lalor Project. [80] The same cannot be said about protests at the Reed Project. A blockade of that location did not occur. In its statementof claim, Hudbay alleges a threat of blockade of the Reed Project was made; however, no particulars of such a threat were before themotion judge.

The only activity proven in relation to the Reed Project, namely, leafleting by Chief Dumas, was a permissible exercise offreedom of speech. [81] An injunction should impose only such restraint as is necessary to stop the mischief complained of and preserve thestatus quo (see Blakemore v. Glamorganshire Canal Navigation (1832), 1 MY. & K. 154 at 185, 39 E.R. 639 at 651. I am satisfied,therefore, that, in order to properly tailor Hudbay’s injunction in light of s. 57 of the Act and the conduct during the protests, thereference to the Reed Project should be deleted from the injunction.

Review of Motion Judge’s Decision to Grant an Injunction [82] The three criteria mentioned in RJR -- MacDonald Inc. (serious issue to be tried; irreparable harm to the moving party ifinjunction is not granted; and the balance of convenience) are not separate hurdles for an applicant for an injunction; rather, they are“interrelated considerations.” Depending on the circumstances, strength in one of the factors can compensate for weakness in another(see Apotex Fermentation Inc. et al. v.

Novopharm Ltd. et al. (1994), (MB CA), 95 Man.R. (2d) 241 at para. 14(C.A.)). [83] The appellants do not challenge the motion judge’s finding that Hudbay had demonstrated their action raised a seriousissue to be tried or that the balance of convenience favoured Hudbay operating without being blockaded. The narrow issue on appeal iswhether Hudbay demonstrated it would suffer irreparable harm by the protests unless granted an injuction. [84] The appellants’ submission that there is insufficient evidence of irreparable harm to Hudbay as a result of the protests isnot persuasive.

It was an inference open to the motion judge on the record that the denial of access to the Lalor Project would causeirreparable harm to Hudbay. [85] It was conceded by the appellants that damages were not a viable alternative to an injunction, as the appellants do nothave the means to pay the losses of a major corporation such as Hudbay. Context is important. The Lalor Project is a large undertakingthat is operated around the clock. Hudbay’s proof of harm caused by the protests was not quantified to the penny in its affidavitmaterials. It did not have to be.

All that Hudbay had to show at this early stage of the litigation was a meaningful risk of irreparableharm (see Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership, 2011 SKCA 120 at para. 61, 377 Sask.R.78). [86] The surrounding circumstances make the inference of irreparable harm drawn by the motion judge reasonable. It is wellsettled that a finding of a complete blockade of a lawful business strongly suggests irreparable harm for the purposes of an injunction(see West Fraser Mills at para. 21; Sunshine Logging at para. 52; and Ideal Railings Ltd. at paras. 57-60).

Given there was anevidentiary basis for the finding of irreparable harm, there is no reason to disturb it on appeal (see Repap Manitoba at para. 14).

[87] Save for my previous comments about the scope of the injunction covering the Reed Project, in my view, there is noreason to disturb the motion judge’s decision to grant Hudbay the injunction. [88] One final comment is necessary to put this case in context. [89] Before the motion judge and on appeal, the question of the impact of an injunction on the MCCN’s aboriginal and treatyrights was not raised by the parties (see Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534 at para. 43, 91O.R. (3d) 1, leave to appeal to S.C.C. refused, [2008] S.C.C.A. No. 357 (QL)).

However, in his reasons for decision, the motion judgemade it clear that the injunction in no way impacts the MCCN’s right to pursue its land claim through the many legal alternatives opento it. [90] On appeal, the appellants are not suggesting the injunction was granted too quickly before proper exhaustion of thecomplex process of consultation and reconciliation between Hudbay, the MCCN and the Province of Manitoba (see Frontenac Venturesat paras. 45-46). [91] This court has not had an opportunity to deal with the issue of balancing the conflict between private and aboriginalrights in an injunction application.

Given the positions taken by the parties, this is not the case to do so. Review of the Motion Judge’s Decision Regarding Costs [92] However laudatory their objectives, the appellants engaged in civil disobedience. The costs issue on appeal is whetherthe motion judge erred in principle by not refusing to order costs because of the appellants’ claim they are public interest litigants. Standard of Review [93] Given the discretionary nature of decisions on costs, appellate deference is owed (see Manitoba v. Russell Inns Ltd. etal., 2013 MBCA 46 at para. 159, 291 Man.R. (2d) 244).

Cromwell J. stated in Sun Indalex Finance, LLC v. United Steelworkers, 2013SCC 6 (at para. 247): .... Discretionary costs decisions should only be set aside on appeal if the court below “has made an error in principle or if the costsaward is plainly wrong”: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27. Position of the Parties [94] The appellants say that they are public interest litigants of limited means, so costs should not have been ordered againstthem (see British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 at paras. 27-30, [2003] 3 S.C.R. 371;Euteneier v. Lee et al. (2005), (ON CA), 204 O.A.C. 287 at paras. 6-7; Mahar v. Rogers Cablesystems Ltd. (1995), (ON SC), 25 O.R. (3d) 690 at 704-5 (Gen. Div.); and Sutcliffe et al. v. Ontario (Minister of the Environment) et al.(2004), (ON CA), 191 O.A.C. 370). [95] Hudbay disputes the suggestion that the appellants are true public interest litigants. Hudbay says the appellants are onlybefore the court because they broke the law and Hudbay had to seek the court’s protection.

Hudbay also argues that the issues in disputeare not significant to the broader community (see Okanagan Indian Band at para. 38). Finally, Hudbay submits raising an issue ofpublic importance does not automatically lead to preferential treatment with respect to costs (see Little Sisters Book and Art Emporium v.Canada (Commissioner of Customs and Revenue), 2007 SCC 2 at para. 35, [2007] 1 S.C.R. 38).

Analysis and Decision [96] Typically, when a plaintiff moves successfully for an interlocutory injunction, the preferable course on the question ofcosts on the motion is to reserve the issue for the trial judge (The Honourable Mr. Justice Robert J.

Sharpe, Injunctions and SpecificPerformance, looseleaf (Toronto: Canada Law Book, 2012) at 2.1330), the logic being, there has been no final determination of therights of the parties, only the granting of an order protecting the plaintiff’s position pending trial. [97] However, if the granting of the injunction will effectively put an end to the litigation, particularly if the plaintiff has astrong case for such a remedy, it may be appropriate for the motion judge to make a costs order (see Rogers Cable T.V. Ltd. v. 373041Ontario Ltd., [1994] O.J. No. 1087 at para. 4 (QL) (Gen. Div.); and Mark M.

Orkin, The Law of Costs, looseleaf, 2d ed., vol. 2 (Toronto:Canada Law Book, 2010) at 408.15.1). [98] I see no reason to disturb the motion judge’s decision as to costs. As mentioned earlier, Hudbay has a strong case fornuisance and an injunction due to the blockades of the Lalor Project. Additionally, in my view, the appellants are not public interestlitigants. [99] The authorities relied on by the appellants; Okanagan Indian Band, Euteneier, Mahar and Sutcliffe; are readilydistinguishable. Each is an example of a situation where the salutary effects of the litigation transcended the parties.

The litigants inthose cases brought before the courts possible illegal behaviour by a government actor or large corporation, or pursued novel litigationclarifying a law of wide application to the public generally. [100] While the dispute between the MCCN and Hudbay is important to the parties, the appellants have not demonstratedimportance to the broader community (see Okanagan Indian Band at para. 38). There is nothing to suggest other First Nations, miningcompanies or society generally, will be impacted by the legal issues. MCCN’s claim of lack of consultation in the licencing process for

the Lalor Project is not a novel issue of law, and the rules are well known (see Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73 , [2004] 3 S.C.R. 511; and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director) , 2004 SCC 74 , [2004] 3 S.C.R. 550). [ 101 ] The protestors acted peacefully, but unlawfully. Hudbay tried to discourage the unlawful behaviour before it occurred. Hudbay tolerated the protests and responsibly did nothing to escalate tensions. Hudbay played its

part in ensuring the protestors’ safety while expressing dissent. [ 102 ] It would be unjust to not compensate a private party like Hudbay, who acted with appropriate measure for having to go to court to protect its right to carry on its legitimate business, without a very good reason. I agree with the comments of Stuart-Smith L.J. in Monsanto Plc. v. Tilly and Others , [1999] EWCA Civ 3044 (BAILII) (at para. 34): ...

Those who suffer infringement of their lawful rights are entitled to the protection of the law; if others deliberately infringe those rights in order to attract publicity to their cause, however sincerely they believe in its correctness, they must bear the consequences of their lawbreaking. This is fundamental to the rule of law in a civilised and democratic society. [ 103 ] The motion judge did not err in principle and the order of costs is not plainly wrong in the circumstances. IV. CONCLUSION [ 104 ] The appeal is dismissed save in respect of the geographic scope of the injunction granted to Hudbay.

All reference to the Reed Project is struck from the order without prejudice to Hudbay to seek an injunction in relation to the Reed Project in the future, should circumstances warrant. [ 105 ] Hudbay will have its costs in this court, calculated in accordance with Tariff “A.” J.A. I agree: J.A. I agree: J.A.