March 14, 2017
Nalcor Energy v Anderson 2017 NLTD(G) 51
An Interlocutory Application was brought by Justin Brake seeking an order that certain ex parte orders issued by the Court in October 2016 be vacated.
The ex parte Order was issued as a result of an ex parte application under Rule 53.03 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (as amended) by Nalcor. This order required certain named individuals including Mr. Brake to appear before the court to show cause why they should not be held in contempt of court (the “Contempt Appearance Order”) for refusing to comply with the Injunction Order.
The basis upon which Mr. Brake was seeking an order vacating the Injunction Order and the Contempt Appearance Order was his contention that Nalcor did not, in either the application for the Injunction Order or the application for the Contempt Appearance Order, advise the court that he was a working journalist actively covering the protest which gave rise to the aforesaid ex parte applications and the resulting Injunction Order and Contempt Appearance Order.
Mr. Brake’s position was that the fact he was a working journalist, actively engaged in covering a story which was of significant importance regionally, provincially, nationally and internationally, was a material fact of such import and significance that Nalcor had a duty to make it known to the Court at the time of their application for the Injunction Order and Contempt Appearance Order.
Nalcor is engaged in the development of a hydro-electric generating station and related infrastructure on the lower section of the Churchill River at Muskrat Falls near the Town of Happy Valley-Goose Bay. The development is commonly referred to as the “Muskrat Falls Project”.
There have been a number of protests against the Muskrat Falls Project since its commencement and in October of 2016 a further protest occurred whereby a group of people established a blockade on the access road leading from the Trans-Labrador Highway to the Muskrat Falls construction site. The effect of this blockade was to obstruct or interfere with access to and from the site by persons and vehicles seeking lawful entrance to or exit from the site. It was as a result of this blockade that Nalcor applied on an ex parte basis for injunctive relief on October 16, 2016 and was granted the Injunction Order. The effect of the Injunction Order was that the named Respondents and any other person having notice of the Injunction Order were enjoined and restrained from certain activities.
Despite the Injunction Order, the size and intensity of the protest grew larger and the blockade of the access road continued. On October 22, 2016 one of the protestors cut the lock on the gate to the construction site and approximately 50 people including Mr. Brake trespassed unto the site in violation of the Injunction Order.
As a result of the on-going contempt of the Injunction Order and the potential consequences of the contempt, Nalcor applied ex parte pursuant to Rule 53.03 of the Rules of the Supreme Court, 1986 for an order directing the sheriff to cause certain individuals named in the application and any other individuals found unlawfully occupying the construction site to appear before the court to show cause why they should not be held in contempt of court for failing to comply with the Injunction Order.
The issues addressed in deciding Mr. Brake’s application were:
1) When is it appropriate to vacate an ex parte Order on the basis of non-disclosure of material facts?
2) Was the fact that Mr. Brake was a journalist covering the protest against the Muskrat Falls Project a fact which Nalcor ought to have apprised the Court of when making the ex parte application that resulted in the Injunction Order or the ex parte application that resulted in the Contempt Appearance Order?
Justice Murphy concluded that:
1) A non-disclosure or misstatement can only result in the vacating of an ex parte order where it is material;
2) A material, non-disclosure or misstatement will not automatically mean an ex parte order will be vacated; and
3) Whether an ex parte order, obtained where there has been a material, non-disclosure or misstatement, should be vacated is a discretionary decision for a court.
Murphy J. states:
How is it that it is “plain and obvious that the fact of the Applicant being engaged as a journalist” was material? To be a material fact it must be a fact that objectively viewed may have affected the outcome of the ex parte applications. It is my view that in order for this to be the case then Mr. Brake, as a journalist, must have had some special status or right that applied to his coverage of the protests against the Muskrat Falls Project, including his trespass on the Muskrat Falls construction site in contravention of the Injunction Order. The nature of such special status or right would have to have been such that if known, it may have changed the outcome of the ex parte applications.
…I was not pointed to any authority which supported the view that in circumstances as were present in this case a member of the press such as Mr. Brake has any special status or right by virtue of section 2 of the Charter. Nor was I referred to any other authority which supported the view that Mr. Brake has any special status or right on any other legal basis that would be applicable in this case.
…There is however, authority for the contrary view. In McLeod v. Canada (Armed Forces),  1 F.C. 144, 2 C.R. (3d), Joyal, J. of the Federal Court of Canada – Trial Division was called upon to consider the issue of whether freedom of the press as granted by section 2(b) of the Charter conferred any special status on the media in the context of that case.
Murphy J. then concludes:
Mr. Brake did not have any special status in this case because of the fact he is a journalist. He was no more entitled to violate the Injunction Order by trespassing on the Muskrat Falls construction site than were any non-journalists named in the Contempt Appearance Order who trespassed on the site.