Canada: Ontario Court Grants Injunction To Prevent Interference With Pipeline Maintenance Work: Enbridge Pipelines Inc. V. Williams And Hill , 2017 Onsc 1642, Ontario Superior Court Of Justice (Broad J.), 15 March 2017

The Ontario Superior Court of Justice allowed an injunction application by Enbridge Pipelines Inc. to prohibit the Aboriginal defendants from interfering with its maintenance work on two pipelines in the Hamilton, Ontario area. The Court rejected the defendants' argument that it must consider whether the duty to consult and accommodate had been fully discharged before granting an injunction to a private party.

Enbridge owns and operates an interprovincial pipeline system extending across Canada and the USA. Line 10 is a 143-km long stretch of pipeline running between North Westover, Ontario to Buffalo, New York. Line 11 runs between Westover, Ontario and Nanticoke, Ontario. The easements for these pipelines had been granted to Enbridge's predecessor.

Enbridge has a comprehensive pipeline preventative maintenance program for its pipeline network. Under this program, it is sometimes necessary for an excavation around the pipeline segment, known as a "Maintenance Dig". Such work usually lasts 15 days. The Court referred to evidence that Enbridge had written to the Six Nations of the Grand River and the Mississaugas of the New Credit, as well as the Haudenosaunee Development Institute ("HDI"), well in advance of the maintenance. No objections were raised by the HDI or the two First Nations.

The defendants Williams and Hill identify themselves as representatives and "enforcers" of HDI. Enbridge asserted that the defendants Williams and Hill have regularly interfered with its work crews at a Maintenance Dig since January 2017. They have torn down snow fences, blocked roads and gates, and verbally demanded that the work be shut down. The defendants allegedly placed rabbit traps to obstruct access, asserting treaty hunting rights. In regards to these events, the Court allowed Enbridge's daily inspection reports to be admitted into evidence under the "business records" exception to hearsay.

In response to this injunction application, the defendants relied upon affidavits in which they assert the ability to exercise rights upon Haudenosaunee traditional treaty territory, and that such rights were recognized by the Nanfan Treaty of 1701. The defendants delivered a Notice of Constitutional Question on the issues of whether the provincial Trespass to Property Act applies to a Haudenosaunee person exercising rights guaranteed by the Nanfan Treaty and section 35. They also questioned whether an injunction could interfere with treaty rights, or whether an easement could be granted, where the provincial and federal Crowns have not upheld the Honour of the Crown.

The defendants further relied upon the decision of the Ontario Court of Appeal in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534 for the proposition that different questions arise in an injunction application if treaty rights are involved. They argued that the Court must consider whether the duty to consult and accommodate has been fully discharged. The Court rejected such arguments. Broad J. noted that a similar argument had been rejected by the Newfoundland and Labrador Court of Appeal in Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46 [summarized in our e-Newsletter of 19 December 2014], and was inconsistent with the Supreme Court of Canada decision in Behn v. Moulton Contracting Ltd., 2013 SCC 26. The courts do not condone self-help remedies. The principles applicable to the granting of an injunction are no different just because Aboriginal claims for consultation may be involved. Broad J. further noted that Enbridge is not the Crown, nor an agent of the Crown. He held:

... Accordingly, the question of whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court's decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds.

The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised. ...

In my view to impose a duty to consult on the Crown, as a precondition to any consideration of the test for the granting of an interlocutory injunction in the circumstances of this case would, in the words of the Supreme Court of Canada in Behn, be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.

The Court applied the test for an interlocutory injunction as stated in RJR-MacDonald Inc. v. Canada (1994). Since the application would in effect amount to a final determination of the dispute, it was necessary for Enbridge to show a "strong prima facie case" as opposed to merely establishing a serious question to be tried. The Court held that Enbridge satisfied this criterion. The interference of the defendants constitutes trespass and a violation of Enbridge's property rights. Enbridge also established that it would suffer irreparable harm if the injunction is not granted, and that the balance of convenience favours the granting of an injunction. In cases involving trespass or interference with property rights, injunctive relief is strongly favoured. In addition to the harm that may be caused to Enbridge's own interests, there is a public interest in allowing maintenance to the pipelines. The Court also noted that no new infrastructure is being constructed, but only the maintenance of existing pipelines. The Court was not satisfied that the Nanfan Treaty, as asserted by the defendants, reserves or extends hunting rights to private property. In considering the balance of convenience, the Court also held that unlawful self-help remedies should not be condoned.

The Court therefore held that Enbridge was entitled to an interlocutory injunction restraining the defendants from entering or occupying the sites of the Maintenance Dig, or interfering with Enbridge's access to the sites, and preventing Enbridge's ingress to or egress from the sites. The parties were given leave to make submissions on costs.

https://www.canlii.org/en/on/onsc/doc/2017/2017onsc1642/2017onsc1642.html?resultIndex=1

ttps://www.canlii.org/en/on/onsc/doc/2017/2017onsc1642/2017onsc1642.pdf

About BLG

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.