COURT OF APPEAL FOR ONTARIO
SIMMONS J.A. (In Chambers)
B E T W E E N:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Linda R. Rothstein and Andrew K. Lokan for the appellant OPSEU
Appellant
- and -
ATTORNEY GENERAL FOR ONTARIO
Robert E. Charney and Daniel Guttman for the respondent, Attorney General for Ontario
Respondent
Heard: April 12, 2002
[1] The Ontario Public Service Employees Union (“OPSEU”) is the bargaining agent for 45,000 employees of the Government of Ontario including approximately 4,910 court employees who work at over 100 courthouses throughout Ontario. On March 13, 2002, OPSEU commenced a legal province-wide strike. As the result of an Essential Services Agreement approximately 70% of court employees are required to work throughout the course of the strike.
[2] On March 13, 2002 at approximately 7:30 a.m. OPSEU Local 230 set up a picket line outside one of three courthouses located in the Regional Municipality of Kitchener-Waterloo. Later that morning, Sills J., acting ex parte and on his own motion, issued an order restraining all persons having notice of his order:
a) [from] gathering, congregating or picketing at the entrances to the law courts of the Ontario Court of Justice and the Superior Court of Justice in the Regional Municipality of Waterloo or within the precincts of the said courts, or
b) from engaging in any activities whatsoever which are calculated to interfere with the operations of any court of justice in the said Region or to restrict or limit access of all persons to the courts and their precincts.
Subsequently, on March 14, 2002, Sills J. dismissed a motion brought by OPSEU to set aside or vary the terms of his March 13, 2002 order.
[3] This court set aside paragraph (b) of Sills J.’s March 13, 2002 order on March 22, 2002 but dismissed OPSEU’s appeal from the March 13 and 14, 2002 orders in all other respects.
[4] On March 28, 2002 OPSEU applied to the Supreme Court of Canada for leave to appeal this court’s March 22, 2002 order on an expedited basis. That application is pending. OPSEU accordingly requests that this court make an order granting a stay of its March 22, 2002 order pursuant to s. 65.1 of the Supreme Court Act, R.S.C. 1985, c. S-26, as amended, and also substitute the following terms:
THIS COURT ORDERS that OPSEU and any person having notice of this Order shall not impede, obstruct or delay the access or egress of any person or vehicle into or from the law courts of the Ontario Court of Justice and the Superior Court of Justice in the Regional Municipality of Waterloo.
THIS COURT ORDERS that the Attorney General may move to vary or dissolve the stay on two hours notice to the union, if the picketers do obstruct, hinder or delay access or egress to or from the courthouse.
[5] Although there is no dispute concerning the basic test to be applied on a motion of this kind, the parties disagree about the jurisdiction of a single judge of this court to grant the relief requested and how some of the elements of the test should be applied to the circumstances of this case.
[6] Ultimately, it is unnecessary that I resolve all of the presenting issues. OPSEU submits that the determination of whether a stay should be granted boils down to whether the balance of convenience favours granting a stay in all of the circumstances. As I am not persuaded that OPSEU has met the onus of demonstrating that the balance of convenience favours granting a stay, I am satisfied that this motion should be dismissed.
[7] Given my conclusion on the balance of convenience issue, I will review some of the other presenting issues in brief compass only, and express some of my conclusions in a tentative fashion.
Background
[8] OPSEU applied to vary Sills J.’s March 13, 2002 order on March 14, 2002 on the basis that peaceful informational picketing is a protected form of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms and that a judicial order restraining such picketing is an unwarranted infringement of that right. It filed affidavit evidence indicating that the purpose of the March 13, 2002 Kitchener courthouse picket line was to communicate information about the labour dispute, that union officials gave explicit directions to picketers that they were not to “obstruct the entrance or exit of any person to or from the courthouse”, and that “people routinely entered and exited the courthouse without being hindered, impeded or delayed in any manner whatsoever”. It also submitted that experience during the 1996 OPSEU strike demonstrated that picketing had not impeded access to justice but that if an injunctive order was required, it could be tailored to protect access to justice as well as freedom of expression.
[9] Sills J. noted that only three of seven orders made during the 1996 strike prohibited picketing completely. However, he held that the Supreme Court of Canada had determined that picketing of a courthouse is “conduct designed to interfere with the proper administration of justice” in B.C.G.E.U. v. British Columbia (Attorney-General) (1988), 1988 3 (SCC), 53 D.L.R. (4th) 1 (“BCGEU”) and dismissed the application to vary.
[10] On appeal to this court the parties agreed that a judicial order restraining picketing at a courthouse infringes the Charter rights of union members who wish to picket. They also agreed that the objectives of such an order in protecting access to justice are pressing and substantial, and that the means chosen are rationally connected to the objectives of the order, thus establishing at least partial compliance with the first and second branches of the Oakes1 test.
[11] Accordingly, the live issues on appeal were whether Sills J.’s orders complied with the minimal impairment and proportionality components of the Oakes test. In this regard, OPSEU made the following submissions:
i) The word “picketing” embraces a wide variety of conduct not all of which must be enjoined to ensure unimpeded access to courts; here the nature of the picketing is purely informational and therefore distinguishable from the picketing in BCGEU where there was clear evidence of both intent and attempts to impede access to the courts;
ii) The Supreme Court of Canada recognized that not all picketing has a “signalling effect” urging members of the public not to cross in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8;
iii) Experience in Ontario during the 1996 OPSEU strike demonstrates that a total ban on picketing is unnecessary to achieve the objective of protecting unimpeded access to the courts because less restrictive forms of order were issued during that strike with no evidence of problems; and
iv) A total ban on picketing defeats the constitutional rights of union members to freedom of expression and it cannot be said that the benefit of the order outweigh its deleterious effects given that less intrusive means are available to attain the objectives of the order.
[12] This court held that the reasons in BCGEU preclude acceptance of OPSEU’s submissions because the reasons make it clear that the decision was not restricted to the facts of that case; “[r]ather the foundation of [that] decision was the unacceptable inconsistency between picketing at a courthouse in connection with a labour dispute and the pivotal role of courts in the administration of justice”.
[13] This court also held that subsequent decisions of the Supreme Court of Canada commenting on the nature of picketing in the context of commercial enterprises do not detract from Dickson C.J.C.’s findings in BCGEU.
[14] OPSEU has now obtained social science evidence in the form of an affidavit from Professor Eugene Swimmer explaining the unique nature of public sector labour relations. Professor Swimmer is a member of the faculty of the School of Public Administration at Carleton University. He has specialized in the study and teaching of public sector labour relations for approximately 30 years. In his affidavit, Professor Swimmer explains the nature of a “controlled” public sector strike, the position of the public as the ultimate employer in such a strike, the burden of persuasion generally borne by the union, and the importance of the union communicating directly with the public to enable the public to exert informed political pressure. He identifies site specific picketing allowing the union to communicate with the public at the specific locations where public services are used as being significant, not only to permit communication with the public at the particular locations where services are being provided but also in carrying a message of solidarity and support for essential services workers required to continue working.
[15] OPSEU filed its completed application record for leave to appeal to the Supreme Court of Canada on April 4, 2002. Once again, OPSEU proposes to argue that BCGEU does not apply to peaceful informational picketing at a courthouse and that such picketing is a constitutionally protected expression provided that it does not impede, obstruct, or delay access or egress or persons or vehicles to or from a courthouse.
Preliminary Objections to the Jurisdiction of a Single Judge
[16] Counsel for the Attorney General raises two preliminary objections to the jurisdiction of a single judge to grant the relief requested. First, that interpreting s. 65.1 of the Supreme Court Act as authorizing a single judge of a provincial court of appeal to grant a stay pending determination of a leave application to the Supreme Court of Canada is inconsistent with the division of powers established under ss. 92(14) and 101 of the Constitution Act, 1867, and should therefore be rejected. Second, that OPSEU’s claim for relief amounts to a motion to vary the March 22, 2002 order of this court, and that such relief can only be granted by a full panel of this court, if available at all. No authorities were filed in relation to either issue.
[17] I tentatively reject both submissions.
[18] Section 101 of the Constitution Act, 1867 authorizes the federal government to “provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada…” The specific language of s. 65.1 of the Supreme Court Act authorizes “the [Supreme] Court, the court appealed from or a judge of either of those courts” to “order that proceedings be stayed with respect to the judgment from which leave to appeal is being sought”. Section 37 of the Supreme Court Act also authorizes provincial courts of appeal to grant leave to appeal on leave motions to the Supreme Court of Canada.
[19] Counsel for the Attorney General takes no issue with the propriety of s. 37 of the Supreme Court Act, or with the general notion that the federal government can grant a provincial appellate court the authority to order a stay pending a leave application. Rather, he says that s. 101 of the Constitution Act does not permit the federal government to deal with the specific procedure for exercising those powers within a provincial appellate court, as authority over civil procedure in provincial courts is specifically reserved to the provincial governments under s. 92(14) of the Constitution Act. Counsel also asserts that r. 63.02 of the Rules of Civil Procedure requires a full panel of a court appealed from to grant a stay pending determination of an application for leave to appeal, and that s. 65.1 of the Supreme Court Act should be read in conformity with the provincial rules.
[20] Based on first impressions, I am not inclined to construe the powers of the federal government so narrowly. Once it is accepted that the federal government can authorize a provincial appellate court to deal with a particular issue involving an appeal to the Supreme Court of Canada, I see no barrier to the federal government also determining the requisite number of judges required to dispose of the issue. Such a determination extends beyond mere procedure. Moreover, even if the determination is merely procedural, it relates to the exercise of concurrent jurisdiction by judges of provincial appellate courts2 in matters before the Supreme Court of Canada and not simply to “Procedure in Civil Matters in [Provincial] Courts” as described in section 92(14) of the Constitution Act.
[21] As for the objection that the relief sought amounts to a motion to vary, I acknowledge that OPSEU requested the first paragraph of the substitute order it now seeks as alternative relief on its appeal. Nevertheless, I construe the substitute order as proposed terms of a stay rather than as a motion to vary.
[22] I raised an additional issue with counsel after this motion was heard concerning the effect of staying an order of this court that merely dismisses an appeal, and concerning the power of this court to make ancillary orders under s. 65.1 of the Supreme Court Act. However, rather than delay consideration of the matters that were argued, I agreed to postpone that issue subject to my decision on the other points.
Test for Granting a Stay
[23] The test for granting a stay pending appeal is set out in R.J.R -MacDonald Inc. v. Canada (Attorney General) (1994) 1994 117 (SCC), 111 D.L.R. (4th) 385 (S.C.C.). The moving party must establish each of the following elements on a balance of probabilities:
i) that there is a serious question to be determined;
ii) that the moving party will suffer irreparable harm if a stay is refused; and
iii) that the balance of convenience favours granting a stay.
Positions of the Parties
[24] OPSEU submits that the threshold for meeting the first and second elements of the test for granting a stay are relatively low and easily met in this case. In particular, it asserts that the Supreme Court of Canada has not previously considered purely informational picketing at a courthouse during a public sector labour dispute, and that there is real doubt concerning whether BCGEU does or should apply in this context. As for irreparable harm, it contends that it is the nature of the harm that is important rather than its magnitude, and that it and its members will be deprived of their constitutional right to engage in informational site specific picketing if a stay is not granted. It contends that this loss easily establishes irreparable harm because of its negative effect on the dynamics of collective bargaining within the special context of a public sector labour dispute. Finally, OPSEU says that the balance of convenience favours granting a stay, particularly when one factors in the public interest in proper communication of the union’s position in a public sector strike, and the absence of evidence that less intrusive orders made during the 1996 strike impeded access to justice. OPSEU submits that evidence of a small number of isolated incidents at other courthouses during the currency of this strike does not demonstrate that access to the courts is impeded, and that this court should not fall back on the legal construct of simply saying that the Supreme Court of Canada has already established a rule to decide the question of balance of convenience.
[25] Counsel for the Attorney General concedes that “the serious question to be tried” branch of the test is normally satisfied by demonstrating that the question in issue is neither frivolous nor vexatious. However, he points out that the Supreme Court of Canada has articulated two exceptions to the usual rule that a judge hearing a stay motion should not engage in an extensive review of the merits and submits that this case falls within the second of those exceptions. At p. 404 of R.J.R –MacDonald Sopinka J. and Cory J. explained “[t]he second exception to the American Cyanamid3 prohibition on an extensive review of the merits arises when the question of constitutionality presents itself as a simple question of law alone”. Counsel submits that where, as here, the Supreme Court of Canada has already determined the legal question, there can be no serious issue to be tried.
[26] Counsel for the Attorney General also contests OPSEU’s characterization of the threshold for establishing irreparable harm. Rather than being low, he asserts that it is high, relying in particular on two examples given in RJR-MacDonald at p. 405, namely that a party would be put out of business or suffer a permanent loss of natural resources if a stay was not granted. He says that OPSEU has established nothing other than the fact that the Charter rights of some of its members would be somewhat curtailed if a stay is not granted; and that that is insufficient to meet the threshold for irreparable harm. Counsel emphasizes that OPSEU is free to picket non-courthouse locations. Finally, he says that OPSEU’s claim that the dynamics of collective bargaining would be negatively affected is a vague and amorphous assertion unsupported by empirical evidence.
[27] As for the balance of convenience, counsel for the Attorney General says that OPSEU cannot satisfy this branch of the test. He submits that the Supreme Court of Canada has already decided the balance of convenience in favour of unimpeded public access to the courts in BCGEU, and that in any event OPSEU’s desire to picket courthouses in support of its position in a labour dispute is no more than a private interest. He submits that evidence is not required to demonstrate that Sills J.’s order is actually protecting the public interest, but that, in any event, evidence of incidents that have occurred at other courthouses amply support the necessity of an unrestricted order.
Analysis
i) Serious Question for Determination
[28] In addition to the matter raised by counsel for the Attorney General, I should also note that other courts have commented on the impact of the test for leave to the Supreme Court of Canada on the interpretation of the “the serious question for determination” branch of the test for a stay. In Merck & Co. v. Nu-Pharm Inc. (2000), 2000 15240 (FCA), 5 C.P.R. (4th) 417 (F.C.A.) Rothstein J. said:
There is authority for the proposition that on a stay application pending appeal to the Supreme Court of Canada, the applicant must demonstrate that there is a serious issue that would meet the criteria set out in subsection 40(1) [of the Supreme Court Act], i.e. a serious question of public importance.
- After commenting on three other decisions, Rothstein J. concluded:
While having regard to the criteria in subsection 40(1) of the Supreme Court Act places an Appeal Court Judge in a somewhat awkward position, as the Appeal Court will not ultimately be deciding the leave application, the authorities cited are persuasive. The question is whether the applicant has demonstrated that there is a serious issue considering the criteria for leave to appeal to the Supreme Court in subsection 40(1).
[29] As already noted, it is not strictly necessary that I decide the various issues relating to this branch of the test because I have concluded that this motion can be disposed of based on the balance of convenience branch of the test for a stay. If required to decide, however, I would be inclined to accept the applicant’s position that there is a serious constitutional issue for determination capable of meeting the criteria for leave to appeal to the Supreme Court of Canada. I am well aware that this court ruled that the reasoning in BCGEU is not confined to its facts, that it applies to the informational picket line set up at the Kitchener courthouse in this case, and that it is not diminished by subsequent caselaw. Nevertheless, given that purely informational picketing was not in issue in BCGEU and given the subsequent developments in the law, I consider that it would be open to the Supreme Court of Canada to choose to revisit these issues and that that prospect represents a serious question for determination.
Irreparable Harm
[30] I accept that, at this point, OPSEU has not established that infringement of the constitutional rights of OPSEU members to picket at the courthouses in the Regional Municipality of Kitchener-Waterloo, or, for that matter, at courthouses in general, will negatively affect the dynamics of collective bargaining during the course of this strike in any significant way. Although Professor Swimmer speaks to the general importance of site specific picketing in a controlled public sector strike, he does not analyze the overall dynamics at play in this strike or consider the actual impact of loss of courthouse picketing on those dynamics. He does not, for example, speak to the number and overall significance of courthouse employee issues in this particular strike, nor does he identify the actual extent to which public services at courthouses have been reduced with resulting consumer dissatisfaction. I conclude that his evidence tends to the theoretical and fails to actually demonstrate his hypotheses.
[31] I also accept that the ability to picket at other locations attenuates, to some modest extent, the significance of the Charter infringement and also distinguishes this case from some commercial enterprise strike situations.
[32] Be that as it may infringement of the constitutional rights of courthouse workers to picket at courthouses within the context of a public sector labour dispute is not an insignificant matter. Laskin J.A. underlined the potential for irreparable harm arising from a prohibition on picketing, albeit in the context of a commercial enterprise, in Circuit World Corp. v. Lesperance (1997), 1997 1385 (ON CA), 33 O. R. (3d) 674 (C.A.). Moreover, the Supreme Court of Canada noted that the assessment of irreparable harm in interlocutory applications involving Charter rights is a task that will often be more difficult than a comparable assessment in a private law application in R.J.R -MacDonald at p. 406.
[33] If required to decide, I would assume irreparable harm and leave the question of whether a stay should issue to be determined on the balance of convenience branch of the test.
Balance of Convenience
[34] As I appreciate it, the thrust of OPSEU’s position on this issue is fourfold. First, the available evidence supports OPSEU’s contention that a general restraint on picketing at courthouses will negatively affect the dynamics of collective bargaining in a significant way. Second, there is a public interest involved in the union’s ability to communicate its position in this strike. Third, subsequent caselaw and the available evidence does not support the Supreme Court of Canada’s findings in BCGEU concerning the signalling effect of a picket line at a courthouse, or that “[a] picket line ipso facto impedes access to justice”. Fourth, there is no evidence to support a finding that access to the courts will actually be impeded if the order OPSEU proposes is made. The implication of these submissions is that the potential harm to OPSEU from refusing to grant a stay is significant, whereas there is little, if any, potential harm to the government if a stay is granted.
[35] I am not persuaded that OPSEU has established that the balance of convenience favours granting a stay. First, I have already rejected OPSEU’s position that a general restraint on picketing will negatively affect the dynamics of collective bargaining in a significant way. Second, I am not satisfied that OPSEU has established the likelihood of significant harm to a public interest in the event a stay is refused. Third, I accept the position of counsel for the Attorney General that this case should be analogized to cases where the applicant seeks to restrain the operation of a properly enacted law and that proof is not therefore required to demonstrate that the public interest is actually being protected by the impugned order. Fourth, the available evidence concerning informational picketing goes primarily to its intent rather than its effect and accordingly does not diminish the findings in BCGEU. Fifth, if proof is required to demonstrate that the impugned order is protecting the public interest, I am satisfied that the available evidence supports the necessity of an unrestricted order. Based on these conclusions, I am satisfied that BCGEU remains determinative of the balance of convenience and that the public interest protected by the March 13, 2002 order outweighs the harm flowing from infringement of potential picketers’ constitutional rights.
[36] I have already rejected OPSEU’s contention that it has established that the March 22, 2002 order negatively affects the dynamics of collective bargaining in any significant way in the context of this particular strike. That finding also undermines OPSEU’s position that there is a likelihood of significant harm to a public interest in the event a stay is refused. I accept that there is a potential for harm to OPSEU and its members if a stay is refused. However, I do not accept that the magnitude of potential harm is as great as OPSEU suggests.
[37] The Supreme Court of Canada discussed the role of “the public interest” in assessing the balance of convenience in R.J.R –MacDonald and enunciated a principle that proof of harm to the public interest can generally be presumed in certain circumstances involving public authorities. For example, proof of harm to the public interest from restraining implementation of properly enacted legislation can generally be presumed based on proof that impugned legislation was enacted pursuant to a duty to promote the public interest. Sopinka and Cory stated the following in R.J.R –MacDonald at pp. 407-9:
The decision in Metropolitan Stores … made clear that in all constitutional cases the public interest is a “special factor” which must be considered in assessing where the balance of convenience lies and which must be “given the weight it should carry”.
It is, we think, appropriate that it be open to both parties in an interlocutory Charter proceeding to rely upon considerations of the public interest. Each party is entitled to make the court aware of the damage it might suffer prior to a decision on the merits. In addition, either the applicant or the respondent may tip the scales of convenience in its favour by demonstrating to the court a compelling public interest in the granting or refusal of the relief sought. Public interest includes both the concerns of society generally and the particular interests of identifiable groups.
When a private applicant alleges that the public interest is at risk, that harm must be demonstrated. This is since private applicants are normally presumed to be pursuing their own interests rather than those of the public at large. In considering the balance of convenience and the public interest, it does not assist an applicant to claim that a given government authority does not represent the public interest. Rather, the applicant must convince the court of the public interest benefits which will flow from the granting of the relief sought.
Courts have addressed the issue of the harm to the public interest which can be relied upon by a public authority in different ways …
In our view, the concept of inconvenience should be widely construed in Charter cases. In the case of a public authority, the onus of demonstrating irreparable harm to the public interest is less than that of a private applicant. This is partly a function of the nature of the public authority and partly a function of the action sought to be enjoined. The test will nearly always be satisfied simply upon proof that the authority is charged with the duty of promoting or protecting the public interest and upon some indication that the impugned legislation, regulation, or activity was undertaken pursuant to that responsibility. Once these minimal requirements have been met, the court should in most cases assume that irreparable harm to the public interest would result from restrain of the action.
A court should not, as a general rule, attempt to ascertain whether actual harm would result from the restraint sought.
- [38] In Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764 at paras. 9-11 the Supreme Court of Canada affirmed this principle in staying an interlocutory injunction suspending third party spending limit provisions in the Canada Elections Act:
Another principle set out in the cases is that in considering the grant of an interlocutory injunction suspending the operation of a validly enacted but challenged law it is wrong to insist on proof that the law will produce a public good … As … stated in R.J.R -MacDonald [citation omitted]:
When the nature and declared purpose of legislation is to promote the public interest, a motions court judge should not be concerned whether the legislation actually has such an effect. It must be presumed to do so.
It follows that in assessing the balance of convenience, the motions judge must proceed on the assumption that the law … is directed to public good and serves a valid public purpose. This applies to violations of the s. 2(b) right of freedom of expression… the assumption of the public interest in enforcing the law weighs heavily in the balance. Courts will not lightly order that laws … duly enacted for the public good are inoperable in advance of complete constitutional review, which is always a complex and difficult matter. It follows that only in clear cases will interlocutory injunctions against the enforcement of a law on grounds of alleged unconstitutionality succeed.
…the trial judge appears not to have applied this principle in weighing the benefits of the law against its impact on free expression. Instead of assuming that the legislation has the effect of promoting the public interest as R.J.R -MacDonald directs, the trial judge based his conclusion on the fact that the Government “has not adduced any evidence to illustrate unfairness in any of these elections caused by third-party spending limits…
…we are satisfied that the public interest in maintaining in place the duly enacted legislation on spending limits pending complete constitutional review outweighs the detriment to freedom of expression caused by those limits. To leave the injunction in place is to grant substantial success to the applicant… Moreover applying R.J.R -MacDonald we must take as given at this stage that the legislation imposing spending limits on third parties will serve a valid public purpose. Weighing these factors against the partial limitation on freedom of expression imposed by the restrictions, we conclude that the balance of convenience favours staying the injunction granted by the trial judge.
[39] Here the issue is the validity of an order that essentially mirrors the order granted by the Chief Justice of British Columbia in BCGEU. The issuing court is not the only court to have determined that the order protects the public interest; the Supreme Court of Canada also confirmed it in BCGEU. The principle that valid and binding legislation is presumed to protect the public interest must also apply to orders of the Supreme Court of Canada. Although OPSEU contends that Professor Swimmer’s affidavit undermines the finding in BCGEU that picket lines at courthouses have a signalling effect, Professor Swimmer acknowledged in cross-examination that he had not conducted any empirical research concerning the effects of picketing. His evidence does not demonstrate that the findings in BCGEU are wrong.
[40] While accepting that the Supreme Court of Canada could choose to revisit its earlier decision I conclude that I must assume that the March 13, 2002 order restraining picketing protects the public interest. To hold otherwise would grant the applicant substantial success without the necessity of a full constitutional review.
[41] As for evidence concerning the actual effect of picketing on access to the courts during the current strike, the Attorney General has filed evidence of a variety of incidents involving attempts to hinder or delay access to courts at other courthouses. OPSEU contends that this evidence is insignificant, both in terms of numbers and in terms of ultimate effect. This submission does not pay adequate heed to the pivotal role of the courts in enforcing the rule of law. Any impairment of the public’s right to unimpeded access to the courts is significant. Moreover, in my view, the nature of this issue is such that it could be difficult to determine the actual effect of picketing without an empirical study. One of the affidavits filed by OPSEU demonstrates that some people voluntarily declined to cross a picket line set up at the courthouse in Brockville. An order that solves a problem only after it has happened is not sufficient to protect the public interest in unimpeded access to the courts. Pending further empirical study or further constitutional review by the Supreme Court of Canada, I am satisfied that the available evidence supports the necessity of an unrestricted order.
[42] Accordingly, I accept that the reasoning in BCGEU reflects not only a legal construct but the proper approach to determining whether the public interest protected by the March 13, 2002 order outweighs the harm flowing from infringement of potential picketers’ constitutional rights.
Disposition
[43] OPSEU’s motion is accordingly dismissed. If costs are in issue, counsel for the Attorney General may file a bill of costs and brief written submissions within 10 days, counsel for OPSEU may respond within 10 days thereafter.
Released: April 15, 2002 “JS”
“Janet Simmons J.A.”
Footnotes
- R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103
- See Richter & Partners Inc. v. Ernst & Young, 1997 340 (SCC), [1997] 2 S.C.R. 5; Barrett v. Reynolds (1999), 31 C.P.C. (4th) 200 (N.S.C.A.) (Glube C.J.N.S. In Chambers)
- American Cyanamid Co. v. Ethicon Ltd., 1975 2598 (FC), [1975] A.C. 396 (H.L)