As Canada enters the second year of dealing with the COVID-19 pandemic, government restrictions imposed by the federal and provincial governments have led to growing resistance among segments of Canada's population. The resistance to vaccine mandates and restrictions has existed from day one of the pandemic, but the resistance has, in the last few months, become more vocal. In Canada, a "Freedom Convoy" has been organized to register a protest against the restrictions that have been implemented against those who have voluntarily decided to not be vaccinated. As part of their protest, the Freedom Convoy brought their message to the Ambassador Bridge (the "Bridge") in Windsor, Ontario. Although peaceful, the protestors occupied the roadway and effectively blocked traffic from crossing the Bridge, particularly the traffic entering Canada. The impacts of the protest were felt by businesses and the City, and accordingly these groups moved for an interlocutory injunction against the protestors, which was granted by the Court. In Automotive Parts Manufacturers' Association v. Boak, 2022 ONSC 1001 (not yet available on CanLII), the Court provided its reasons for granting the injunction.
The actions of the protestors began on February 7, 2022, with the obstruction of an intersection that led to the Bridge. By February 9, 2022, evidence showed that the protestors had blocked the secondary Bridge entrance and had, using multiple vehicles, blocked traffic from crossing both the Bridge's primary and secondary entrances.
The Automotive Parts Manufacturers' Association (the "APMA"), the City of Windsor and the Attorney General for Ontario sought an injunction against the protestors under section 101 of the Courts of Justice Act, rule 40 of the Rules of Civil Procedure and section 440 of the Municipal Act, 2001 to prevent the protestors from impeding or blocking access to the Bridge. While no injunction was sought to prevent the protestors from voicing their message, the moving parties argued that the protestors' rights to freedom of expression, assembly and association simply did not include blocking or impeding the roadways connecting Detroit and Windsor and causing significant economic harm to businesses and industry in the area or causing harm to the community at-large, the schools and the City's residents. The injunction was confined to restrain the protestors from establishing a blockade, or in any way impeding access both to and from the Bridge.
In general, a party seeking an injunction must prove the following three elements:
1) that there is a serious issue to be tried;
2) that irreparable harm will result if the relief is not granted; and
3) that the balance of convenience favours the moving party.
This test was established by the Supreme Court of Canada in the seminal case of RJR MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC) at paragraphs 77-80.
With respect to the granting of an injunction for a breach of a municipal by-law, the test is modified. In general, based on cases such as Newcastle Recycling Ltd. v. Clarington (Municipality), [2005] O.J. No. 5344 (C.A.), courts will only refuse an application to enforce a by-law in exceptional circumstances. Emphasis is placed on the first element of the tripartite test to the exclusion of the other two elements.
This was important for the purposes of the motion to obtain an injunction against the protestors because the City of Windsor argued that the protestors were breaching Windsor By-law 9148. This by-law regulated traffic within the city's limits and, in part, specifically provided as follows:
7(1)(a) No operator of the vehicle shall permit such vehicle to remain upon or be driven upon or along any street so as to block or obstruct traffic.
12. No person shall obstruct, encumber, injure or foul any highway or portion thereof.
An injunction cannot be granted without the moving party leading evidence or establishing that they have a cause of action. The moving parties contended that the protestors were creating a public nuisance by blockading the Bridge and that the protestors were creating a tortious interference with economic relations.
The AMPA led evidence showing that as of 2020, the automotive sector accounted for $16 billion worth of investment in Canada and provided approximately 500,000 direct and indirect jobs. Also, the evidence showed that approximately $100 million worth of parts crossed the border everyday between Canada and the United States and that the blockade was costing $50 million per day. These costs were being felt by Canadian, Ontario and Windsor businesses and the blockade had resulted in shutdowns and partial layoffs. Economically, there were over 1,000 automotive manufacturers in the Windsor area and these businesses represented more than $4.5 billion in annual GDP or 30% of regional GDP. It was estimated by the moving parties that the protestors' conduct had caused special damages of $600 million to the auto industry in Canada, which they contended would likely never be recoverable from the protestors.
The evidence also showed that the protestors had blocked all traffic into Canada and severely limited travel from Canada to the United States.
Aside from allegedly breaching municipal by-laws, it was contended that the actions of the protestors were contrary to sections 175(1), 180(2), 430(1)(c)(d) and 423(1)(g) of the Criminal Code. Although police had asked the protestors to clear the blockade and disperse, these efforts were unsuccessful.
It was contended by parties appearing at the motion in opposition to the injunction that only a few vehicles were blocking the secondary entrance and that the granting of an injunction would cause irreparable harm to the protestors' Charter rights to freedom of expression, assembly and association.
In the Endorsement, the Court found that the moving parties had shown that there was a serious issue to be tried. There was an actionable claim in public nuisance based on allegations of unreasonable interference with a public right of way and in intentional interference with economic relations.
The Court concluded that the irreparable harm was also easily met. It has been determined that "irreparable harm" is "...harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other": RJR-MacDonald at paragraph 59.
The evidence established that the protest at the Bridge had put the economy at risk and that it would be highly unlikely that the significant damages claimed against the protestors would ever be recovered. The Court accepted that the protest had caused negative impacts on employment, children's education, community access to critical services and had harmed the reputation of Windsor as a place to live, work and invest.
The balance of convenience also favoured the moving parties. Although the protestors relied upon the Charter in exerting their ability to voice their views, the Court explained that they had no legal right to block or impede access to the Bridge. In Canadian National Railway Co. v. Doe, 2013 ONSC 115 at paragraph 11, the following had been held:
...While expressive conduct by lawful means enjoys strong protection in our system of governance and law, expressive conduct by unlawful means does not. No one can seriously suggest that a person can block freight and passenger traffic on one of the main arteries of our economy and then cloak himself with protection by asserting freedom of expression. The Canadian Charter of Rights and Freedoms does not offer such protection...
Although freedom of conscience, peaceful assembly and association are important Charter rights in Canada, these rights are not absolute or unqualified.
The Court said at paragraph 51: "The Charter does not give any person the legal right to unlawfully trample on the legal rights of others."
With respect to the moving parties' submission that a modified injunction test applied to the enforcement of municipal by-laws, the Court accepted that absent a constitutional challenge to the by-laws, they were presumptively valid and enforceable and that a strong prima facie case of a breach had been established. The protestors were engaged in an unlawful action that included obstructing roads and the Bridge with vehicles and blocking and impeding public access to the Bridge.
At paragraph 61, the Court said: "The parking of multiple vehicles and the presence of many persons whose express intent is to block traffic is a clear violation of [the City's] by-law."
This case is significant for multiple reasons. It once again demonstrates that Charter rights are not absolute. Although people are not prohibited from freely expressing their opinions against government enactments and assembling to voice their opinions, they cannot do so unlawfully. Engaging in a blockade is an unlawful activity. Furthermore this case demonstrates that where a protest negatively impacts the economy, the tripartite injunction test will generally be met and an injunction will be granted to restrain protestors. Lastly, this case shows that where a municipal by-law is at issue the general tripartite injunction test will be modified and that a City will only be required to show that it has a strong prima facie case that the by-law at issue has been breached.
A few days after this injunction was granted, the provincial government declared a State of Emergency aimed at clearing the protestors from the Bridge. The protestors peacefully dispersed and the Bridge was cleared of all obstructions. A PDF version is available to download here.
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