The Ontario Superior Court in Sobeys Inc. v. United Food and Commercial Workers Canada, Local 175 O.J. No. 803 provided written reasons in a motion for an interlocutory injunction to restrain picketing activities arising out of a lawful strike.
The United Food and Commercial Workers Canada, Local 175 (the “Union”) represents certain employees working at the Sobey’s warehouse in Milton. Sobey’s also operates retail grocery stores, a corporate office and warehouses in Whitby, where the employees are represented by the CAW, and Vaughan, which is a non-union facility.
The Court briefly summarized the background facts as follows:
With one relatively minor exception, the picketing has been peaceful, in the sense that there has been no violence. However, the effect of the picketing has been to block entry to and exit from the premises. The blockade has been effective, and has resulted in delays from 90 minutes to up to 8 hours in some cases. In essence, those warehouses became almost non-operational.
Many of the goods sold by the plaintiff are perishable, and significant delays for any lengthy period can be quite serious.
The employer had discussions with the police, both before and after the picketing started ”for assistance in getting people into and out of the plaintiff’s property”. The Court then, correctly, noted that “as is often the case, the police declined to provide any assistance, and took the position that as long as the picketing was peaceful the police would not interfere.”
In terms of evidence, both the plaintiff (employer) and defendant (Union) filed affidavit material which the Court summarized as follows:
In affidavit material filed by the defendants, it was asserted that the bargaining position of the plaintiff was unconscionable, and amounted to bad faith. It was asserted that a bad faith bargaining complaint would be filed at the Ontario Labour Relations Board. In the affidavit material, it was asserted that the picketing has been lawful and peaceful. Picketing has been orderly, respectful and polite. There has been no damage to property. All picketing activity has occurred on public property.
The defendants’ affidavit material asserted that the picketers are communicating matters arising from the collective bargaining process and, from the union’s perspective, Sobeys’ unfair treatment of its employees. Picketers are communicating the issues to individuals gaining access to and egress from the Milton and Whitby warehouses. It is asserted that picketers communicate their concerns about their working conditions to drivers who are willing to listen.
The employer, at the hearing of the motion, requested an order prohibiting any delay in accessing its premises, with a number of significant exceptions:
The plaintiff was willing to accept delays in entry to and exit from its Milton warehouse, where the strike was ongoing, and at its Whitby and Vaughan warehouses, even though no legal strike was occurring there. Delays were proposed ranging from 15 minutes to one minute (subject to overall maximum delays for vehicles in a line-up) depending on the location, purpose, and time of entry and exit, and no delays for emergency vehicles, fuel trucks and security personnel.
The Court summarized in a succinct way, some of the legal principles applicable when dealing with picketing:
- Peaceful picketing is a form of expression, and is constitutionally protected;
- In the context of a lawful strike, picketing has a considerably broader objective than expression;
- A strike is not a “tea party”, it is “the culmination of a failed negotiation. After a failed negotiation, emotions are often high. What ensues is an economic struggle. At the outset, each side believes it has to win the strike. From the employer’s perspective, it needs to carry on business and demonstrate that the strike is ineffective. From the union’s perspective, it must try to cause as much disruption to the employer’s business as possible. Each side hopes to eventually force concessions that will result in a more favourable agreement.”
- The employer is perfectly entitled to continue to operate its business during a strike, and to hire replacement workers if it sees fit;
- If the employer exercises its right to carry on business, and hires replacement workers in order to do so, the union will do what it can to impede this;
- “A picket line that is merely expressive, without more, will do little to cause disruption to the employer’s business. It is not surprising, therefore, that picketers were attempting to delay people who wished to cross the picket line”;
- “Peaceful picketing can accomplish the objective of causing delay just as effectively as violent picketing. All that is required is that people stand in front of vehicles seeking entry or exit. This is just as effective as putting up a fence.”
The Court made the following observation with respect to delay:
At one time, some courts were unwilling to tolerate any delay. For example, in Canada (Attorney General) v. Gillehan,  O.J. No. 2617 (Gen. Div.), Montgomery J. stated:
It is clear that the purpose and scope of peaceful picketing is limited to an attempt to communicate by persuasion to members of the public. It does not allow any vehicle to be stopped for a moment. It does not allow the interference with any person being stopped or held up.
This perspective still prevails in some quarters: see Telus Communications Inc. v. Telecommunications Workers Union (2005), 48 B.C.L.R. (4th) 161 (B.C.S.C.).
Some courts, on the other hand, were unwilling to grant injunctive relief even in the case of delays of up to one hour, accompanied by violence, threats and intimidation, on the ground that the employer was unable to show financial loss: see Trailmobile Canada Ltd. v. Merrill,  O.J. No. 1123 (H.C.J.).
In my view, both approaches are no longer sustainable.
Some inconvenience is permissible and must be tolerated by the employer. Mr. Justice Goudge of the Ontario Court of Appeal held in Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693 et al (2001), 52 O.R. (3d) 694 (C.A.), Goudge J.A. stated, at para. 21:
Absent questions of property damage or personal injury, a robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute before the court will conclude that police assistance has failed, and that it has jurisdiction to intervene with injunctive relief.
Injunctive Relief – The Test
The test for obtaining an interlocutory injunction was reviewed in RJR-MacDonald Inc. v. Canada (Attorney General). The plaintiff must establish the following:
(a) there is a serious issue to be tried;
(b) the plaintiff will suffer irreparable harm if the injunction is not granted;
(c) the balance of convenience favours the plaintiff.
According to the Court in Sobey’s, where the plaintiff is seeking an injunction in the context of a lawful strike where picketing is at issue, “there are three factors that serve as refinements to these tests”:
- since, as a practical matter, the interlocutory motion will finally resolve the matter, the plaintiff must show that it has a strong prima facie case, instead of a serious question to be tried;
- because the issue involves access to property, the plaintiff will more easily be able to demonstrate irreparable harm;
- the plaintiff must comply with s. 102(3) of the Courts of Justice Act, and must demonstrate that reasonable efforts to obtain police assistance, protection and action to prevent or remove any alleged danger of damage to property, injury to persons, obstruction of or interference with lawful entry or exit from the premises in question or breach of the peace have been unsuccessful.
The Court observed that it would be quite easy for an employer to show that they made reasonable efforts to obtain police assistance and that these efforts have been unsuccessful since “the police now regard themselves as being neutral.”
In terms of irreparable harm, the court noted that this refers to the “nature” of the harm rather than its “magnitude” and that “the harm suffered is a deprivation of access to property” caused by the picketing.
When access to property is in issue, a tort (nuisance) occurs, and injunctive relief is the normal remedy. Accordingly, where access to property is deprived, irreparable harm should generally be easy to demonstrate.
That said, and this is key in the case, some inconvenience and delay is acceptable in the context of an economic struggle:
However, in the context of a lawful strike, it is not enough to say that the employer has the right to access its property and thus must be granted an injunction to prohibit any delay in accessing the property. To take that approach, as some courts have done, would inadequately take account of the dynamics of a strike.
I reviewed those dynamics earlier. What is on foot is an economic struggle. To permit the employer unfettered access to its property, without any delay, would swing the pendulum too far in one direction. However, to permit delays that are extreme would swing the pendulum too far in the other direction. In my view, while the employer must be permitted access to its property, and to carry on business if it can, it is not entitled to conduct its business with no inconvenience. As noted by Goudge J.A. in Industrial Hardwood, supra,”A robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute”. In my view, that reflects the appropriate balance.
An injunction is a discretionary remedy and the Court “must be sensitive to the interests of both parties in formulating an appropriate remedial order”:
In the context of a strike, this simply means that the employer who seeks access to its property may be required, as a condition of securing the assistance of a court of equity, to live with a certain amount of inconvenience.
There will be cases where the nature of the employer’s business, the sheer volume of traffic, or safety considerations will not accommodate any delay. A case dealing with traffic is Ogden Entertainment Services v. United Steelworkers of America, Local 440, 1998 CanLII 14755 (ON SC). Further, the Court commented, albeit on a matter that was not before it, that “there would be less toleration of delay in the case of pure secondary picketing, that is, in a case where the picketed employer has no relationship with the striking trade union, and little relationship with the struck employer”.
The Court, in this case, granted the injunction but did so in a manner that it saw as striking a balance between the interest of the employer in accessing its property and the right of the union conveying its message and causing some inconvenience to the employers’ operation. It appears that:
The plaintiff requested an order prohibiting any delay in accessing its premises, with a number of significant exceptions. The plaintiff was willing to accept delays in entry to and exit from its Milton warehouse, where the strike was ongoing, and at its Whitby and Vaughan warehouses, even though no legal strike was occurring there. Delays were proposed ranging from 15 minutes to one minute (subject to overall maximum delays for vehicles in a line-up) depending on the location, purpose, and time of entry and exit, and no delays for emergency vehicles, fuel trucks and security personnel.
The Court also observed that negotiated picketing protocols are to be encouraged.
The Court in this most recent picketing case considered earlier cases dealing with delay in accessing or exiting from employer premises as a result of a lawful picket line and found them to be inapplicable in many respects. Specifically, the Court held that some delay was acceptable in most cases, and that this was part of the dynamic associated with economic conflict resulting from a failed negotiation. The Court adopted an approach that attempted to strike a balance between the interests of the employer and those of the Union and employees.