Hudson Bay Mining and Smelting Co. v. Dumas et al., (2014) 303 Man.R.(2d) 101 (CA)

• Judge: MacInnes, Monnin and Mainella, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 30, 2013
• Jurisdiction: Manitoba
• Citations: (2014), 303 Man.R.(2d) 101 (CA);2014 MBCA 6

Hudson Bay Mining v. Dumas (2014), 303 Man.R.(2d) 101 (CA);

      600 W.A.C. 101

MLB headnote and full text

Temp. Cite: [2014] Man.R.(2d) TBEd. JA.041

Hudson Bay Mining & Smelting Co., Limited (plaintiff/respondent) v. Arlen Dumas, in his capacity as Chief of Mathias Colomb Cree Nation, on behalf of himself and all other members of Mathias Colomb Cree Nation, Pamela Palmater, John Doe, Jane Doe and persons unknown (defendants/appellants)

(AI 13-30-07949; 2014 MBCA 6)

Indexed As: Hudson Bay Mining and Smelting Co. v. Dumas et al.

Manitoba Court of Appeal

MacInnes, Monnin and Mainella, JJ.A.

January 20, 2014.

Summary:

The Mathias Colomb Cree Nation disputed the right of Hudson Bay Mining & Smelting Co. Ltd. to conduct certain mining operations because of lack of consultation and consent. On two occasions, protestors, representing the First Nation's point of view, peacefully protested on the access road for Hudson Bay's Lalor Project near Snow Lake, Manitoba. Unrestricted access for the Lalor Project was interrupted during each protest. Hudson Bay sued and moved for an interlocutory injunction to prevent interference with its access rights for the Lalor Project and another disputed Hudson Bay operation near Flin Flon, Manitoba (the Reed Project). The protestors resisted the injunction based on s. 57(1) of the Court of Queen's Bench Act. Section 57(1) provided that the court could not grant an injunction that restrained a person from exercising the right to free speech. A motions judge found that the protests included unlawful blockades and granted Hudson Bay an injunction preventing blockading of the Lalor and Reed Projects. The judge also awarded costs against the protestors. The protestors appealed.

The Manitoba Court of Appeal dismissed the appeal, except with respect to the geographic scope of the injunction. The court found no basis to interfere with the decision to grant the injunction, save it encompassing the Reed Project.

Civil Rights - Topic 1800

Freedom of speech or expression - General principles - General - The Manitoba Court of Appeal stated that "The jurisprudence about the right of freedom of speech confirms three truisms: 1) the right is a fundamental aspect of democracy; 2) it is not an absolute right, as it may give way to a conflicting right; and 3) deciding when the harm of the speech outweighs its benefit requires careful scrutiny of the values at stake in the circumstances. One final comment; as freedom of speech is a fundamental 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 and the narrowest possible limitation of it. Limitations of the right 'must be clear-cut, precise and readily controlled' ..." - See paragraph 40.

Civil Rights - Topic 1850.1

Freedom of speech or expression - Limitations on - Protesting - First Nations protestors peacefully protested on the access road for Hudson Bay's Lalor Project - Unrestricted access was interrupted during each protest - A motions judge found that the protest amounted to a "blockade" - The judge, therefore, granted an interlocutory injunction against the protestors, notwithstanding s. 57(1) of the Court of Queen's Bench Act, which eliminated the remedy of an injunction if the conduct in question was permissible exercise of the right of freedom of speech - The protestors appealed, arguing that the motion judge's finding that there was a "blockade" was a palpable error - The Manitoba Court of Appeal rejected the protesters' argument - There was evidence to support the motions judge's finding - The peaceful nature of the protests was not determinative - What was germane, was that Hudson Bay's unrestricted right of access for the Lalor Project was intentionally obstructed - The duration of the obstruction was not trifling, having lasted for several hours in each case - See paragraphs 38 and 39.

Civil Rights - Topic 1850.1

Freedom of speech or expression - Limitations on - Protesting - First Nations protestors peacefully protested on the access road for Hudson Bay's Lalor Project - Unrestricted access was interrupted during each protest - A motions judge found that the protest amounted to a "blockade" and granted an interlocutory injunction which also included another Hudson Bay location, the Reed Project - The protestors' appealed, arguing that their activities were a permissible exercise of the right of freedom of speech within the meaning of s. 57(1) of the Court of Queen's Bench Act and, therefore, the motions judge lacked power to issue an injunction - The Manitoba Court of Appeal dismissed the appeal, save for the Reed Project - The protesters' blockading of the access road at the Lalor Project constituted a nuisance as it was a substantial and unreasonable interference with Hudson Bay's enjoyment of property, which was not permissible under s. 57 - The Reed location, however, was never blockaded, rather Hudson Bay received a written demand to stop work there - Based on s. 57(1), such communication could not alone support an injunction - See paragraphs 40 to 81.

Injunctions - Topic 308

Jurisdiction - Limitations on jurisdiction (incl. where injunction restrains freedom of speech) - Section 57(1) of the Court of Queen's Bench Act provided that "...  the court shall not grant an injunction that restrains a person from exercising the right to freedom of speech" - The Manitoba Court of Appeal discussed the scope of s. 57, including the exceptions - The court also referred to the factors to be considered in determining the permissible limits of the right of freedom of speech - See paragraphs 41 to 50.

Injunctions - Topic 308

Jurisdiction - Limitations on jurisdiction (incl. where injunction restrains freedom of speech) - [See both Civil Rights - Topic 1850.1 ].

Injunctions - Topic 1609

Interlocutory or interim injunctions - General principles - Circumstances when injunction will issue - [See second Civil Rights - Topic 1850.1 ].

Injunctions - Topic 1935

Interlocutory or interim injunctions - Practice - Appeals - Duties of Appeal Court (incl. standard of review) - The Manitoba Court of Appeal stated that "An appeal court cannot simply substitute its discretion for that of a motion judge as to whether to grant an interlocutory injunction ... 'The granting or refusal of an interlocutory injunction is a discretionary order. Where the issue concerns the exercise of a judge's discretion, the appellate court will be justified in intervening only if the judge has misdirected him or herself or if his or her decision is so clearly wrong as to amount to an injustice ' ...  Functional equivalence of 'clearly wrong' is 'unreasonable' or 'palpable and overriding error'" - See paragraph 35.

Injunctions - Topic 5905

Particular matters - General - To restrain free speech or expression - [See second Civil Rights - Topic 1850.1 ].

Practice - Topic 7368

Costs - Costs of interlocutory proceedings - Interim or interlocutory injunctions - First Nations protestors peacefully protested on the access road for Hudson Bay's Lalor Project - Unrestricted access was interrupted during each protest - A motions judge found that the protest amounted to a "blockade" and granted an interlocutory injunction which also included another Hudson Bay location, the Reed Project - Costs were awarded against the protestors - The protestors appealed, arguing that the judge erred in awarding costs against them as they were public interest litigants of limited means - The Manitoba Court of Appeal saw no reason to disturb the motion judge's costs decision - Hudson Bay had a strong case for nuisance and an injunction due to the blockades - Also, the protestors were not public interest litigants - They failed to demonstrate importance to the broader community - The protestors acted peacefully, but unlawfully - It would be unjust not to compensate a private party like Hudson Bay who acted with appropriate measure for having to go to court to protect its right to carry on its legitimate business, without very good reason - See paragraphs 92 to 103.

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RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 29].

Channel Seven Television Ltd. v. National Association of Broadcast Employees and Technicians (1971), 21 D.L.R.(3d) 424 (Man. C.A.), refd to. [para. 33].

Gameday Publications Ltd. v. Keystone Agricultural and Recreational Centre Inc. et al. (1999), 134 Man.R.(2d) 50; 193 W.A.C. 50 (C.A.), refd to. [para. 33].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 35].

Insurance Council of Manitoba v. Tomlinson et al. (2007), 220 Man.R.(2d) 258; 407 W.A.C. 258; 2007 MBCA 143, refd to. [para. 35].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 35].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 44].

R. v. Pearson, [1999] M.J. No. 311 (Prov. Ct.), refd to. [para. 44].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 47].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2002 SCC 8, refd to. [para. 48].

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 49].

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd. et al., [1999] 2 S.C.R. 1083; 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1, refd to. [para. 57].

MacMillan Bloedel Ltd. v. Greenpeace Canada et al., [1996] 2 S.C.R. 1048; 199 N.R. 279; 79 B.C.A.C. 135; 129 W.A.C. 135, refd to. [para. 59].

MacMillan Bloedel Ltd. v. Simpson - see MacMillan Bloedel Ltd. v. Greenpeace Canada et al.

West Fraser Mills Ltd. v. Lax Kw'Alaams Indian Band et al., [2004] B.C.T.C. 815; 2004 BCSC 815, refd to. [para. 65].

Canadian National Railway Co. v. John Doe et al., [2013] O.T.C. Uned. 115; 114 O.R.(3d) 126; 2013 ONSC 115, refd to. [para. 65].

Sunshine Logging (2004) Ltd. v. Prior et al., [2011] B.C.T.C. Uned. 1044; 2011 BCSC 1044, refd to. [para. 65].

Repap Manitoba Inc. v. Mathias Colomb Indian Band et al. (1996), 110 Man.R.(2d) 125; 118 W.A.C. 125 (C.A.), refd to. [para. 65].

Rogers Cable T.V. Ltd. v. International Brotherhood of Electrical Workers, Local 230 et al. (1994), 39 B.C.A.C. 313; 64 W.A.C. 313 (C.A.), refd to. [para. 67].

Pacific Western Airlines Ltd. v. International Union, United Automobile Aerospace and Agricultural Implement Workers of America et al. (1986), 70 A.R. 67 (C.A.), refd to. [para. 67].

Industrial Hardwood Products (1996) Ltd. v. Hanlon et al. (2001), 140 O.A.C. 175; 52 O.R.(3d) 694 (C.A.), refd to. [para. 68].

Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693 - see Industrial Hardwood Products (1996) Ltd. v. Hanlon et al.

Air Canada v. Canadian Auto Workers Union et al., [2011] B.C.T.C. Uned. 888; 2011 BCSC 888, refd to. [para. 68].

55104 Newfoundland & Labrador Inc. v. Stockley et al. (2012), 318 Nfld. & P.E.I.R. 241; 989 A.P.R. 241; 2012 NLTD(G) 5, refd to. [para. 68].

Ideal Railings Ltd. v. Laborers' International Union of North America, Local 183 et al., [2013] O.T.C. Uned. 701; 2013 ONSC 701, refd to. [para. 69].

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Blakemore v. Glamorganshire Canal Navigation Co. (1832), 1 My. & K. 154; 39 E.R. 639, refd to. [para. 81].

Apotex Fermentation Inc. et al. v. Novopharm Ltd. et al. (1994), 95 Man.R.(2d) 241; 70 W.A.C. 241 (C.A.), refd to. [para. 82].

Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership (2011), 377 Sask.R. 78; 528 W.A.C. 78; 2011 SKCA 120, refd to. [para. 85].

Frontenac Ventures Corp. v. Ardoch Algonquin First Nation et al. (2008), 239 O.A.C. 257; 91 O.R.(3d) 1; 2008 ONCA 534, leave to appeal refused (2008), 392 N.R. 390; 257 O.A.C. 400 (S.C.C.), refd to. [para. 89].

Manitoba v. Russell Inns Ltd. et al. (2013), 291 Man.R.(2d) 244; 570 W.A.C. 244; 2013 MBCA 46, refd to. [para. 93].

Indalex Ltd. et al., Re (2013), 439 N.R. 235; 301 O.A.C. 1; 2013 SCC 6, refd to. [para. 93].

Sun Indalex Finance, LLC v. United Steelworkers - see Indalex Ltd. et al., Re.

British Columbia (Minister of Forests) v. Okanagan Indian Band et al., [2003] 3 S.C.R. 371; 313 N.R. 84; 189 B.C.A.C. 161; 309 W.A.C. 161; 2003 SCC 71, refd to. [para. 94].

Euteneier v. Lee et al. (2005), 204 O.A.C. 287 (C.A.), refd to. [para. 94].

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Sutcliffe et al. v. Ontario (Minister of the Environment) et al. (2004), 191 O.A.C. 370 (C.A.), refd to. [para. 94].

Little Sisters Book and Art Emporium et al. v. Minister of National Revenue, [2007] 1 S.C.R. 38; 356 N.R. 83; 235 B.C.A.C. 1; 388 W.A.C. 1; 2007 SCC 2, refd to. [para. 95].

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Statutes Noticed:

Court of Queen's Bench Act, S.M. 1988-89, c. 4; C.C.S.M., c. C-280, sect. 57(1) [para. 5]; sect. 57(2), sect. 57(4) [para. 43].

Authors and Works Noticed:

Emerson, Thomas I., Toward a General Theory of the First Amendment (1967), p. 19 [para. 40].

Hansard (Man.) - see Manitoba, Hansard, Legislative Assembly Debates and Proceedings.

Manitoba, Hansard, Legislative Assembly Debates and Proceedings, vol. 17, no. 137, 2nd Sess., 29th Legislature (June 30, 1970), pp. 3484, 3866 [para. 42].

Orkin, Mark M., The Law of Costs (2nd Ed.) (2010 Looseleaf Supp.), vol. 2, p. 408.15.1 [para. 97].

Sharpe, Robert J., Injunctions and Specific Performance (2012 Looseleaf Supp.), para. 2.1330 [para. 96].

Counsel:

J.N. Falconer, for the appellants;

J.M. Woolley and M.C. Ross, for the respondent.

This appeal was heard on October 30, 2013, before MacInnes, Monnin and Mainella, JJ.A., of the Manitoba Court of Appeal. The following decision was delivered for the court by Mainella, J.A., on January 20, 2014.