[1994] OLRB Rep. August 1119
3768-93-M The Great Atlantic & Pacific Company of Canada, Limited, Applicant v. United Food & Commercial Workers International Union, Locals 175 and 633 and Shelly Fair Service, Scott Constable, Peggy Swift and Gary Dimock, Responding Parties
BEFORE: Judith McCormack, Chair, and Board Members G. O. Shamanski and P. V. Grasso.
APPEARANCES: C. R. Robertson for the applicant; Cynthia D. Watson and Michael Klug for the responding parties.
DECISION OF JUDITH McCORMACK, CHAIR, AND BOARD MEMBER P. V. GRASSO; August 2, 1994
- This is an application for interim relief under section 92.1 of the Labour Relations Act. On February 7, 1994 the Board delivered the following oral decision:
A majority of the Board, Board member Shamanski dissenting, is of the view that the interim order sought is not appropriate in the specific circumstances of this case. Our respective reasons will follow shortly.
We now provide our reasons.
The interim relief application before us relates to an application under section 11.1 for restrictions with respect to picketing. That main application concerns picketing occurring in connection with a lawful strike of sixty-three Miracle Food Mart stores owned by the applicant. More specifically, it is addressed to picketing taking place at Store 109 in the Oshawa area. Employees at Store 109, which operates under the name of A & P rather than Miracle Food Mart, are not on strike. However, it was not suggested that this fact affected the rights of the picketers since it is owned by the applicant.
The strike in question began on November 18th, 1993 and the picketing at Store 109 has been in progress since the beginning of December. On December 20th, the applicant brought a motion for an injunction in the Ontario Court of Justice (General Division) to restrain picketing on the perimeter of the property. There is no dispute that this motion addressed only property which is beyond the jurisdiction of the Board. The parties negotiated a settlement of the motion which was incorporated into a consent order dated December 20, 1993. The effect of that order was to permit trucks to enter and leave the property of the shopping mall in which Store 109 is located, albeit with certain conditions.
However, the order did not address what would happen after the trucks came on to the property. With the assistance of police at the scene, the parties arrived at an arrangement where products were unloaded at the southwest corner of the property and then transferred to the store itself by handcart or dolly. There is some dispute with respect to the nature of this arrangement and. how it came into being. Nevertheless, it is common ground that the arrangement continued until January 25, 1994. No action was taken by the company in regard to Store 109 during this five-week period, although there was litigation proceeding with respect to other stores.
On January 24th, 1994 the Ontario Court of Justice issued a decision with respect to another store, Store 808, in which it upheld an earlier decision to the effect that the Board had exclusive jurisdiction in that case. The Court also saw fit to make some comments in obiter, which apparently prompted the company to unilaterally withdraw from the arrangement mediated earlier by the police at Store 109. As a result, on January 25th the company decided to deliver some soft drinks to Store 109 by having a truck approach the loading docks, rather than the southwest corner. This attempt was supervised and filmed for the company, which asserts that picketers blocked the truck's access to the loading docks. The company also makes some broad assertions with respect to harassment~ damage and obstruction which it claims has been ongoing since shortly after November 18, 1993. No details in regard to any specific incident are provided, except for the one on January 25th above. These broad assertions and much of the harm the company alleges has resulted are not pleaded in the main application to which this case relates.
The gist of the company's position was that the picketing activity at Store 109 was unlawful in the sense that it was a breach of the common law, and that the Board should not allow it to continue for another hour, let alone several days pending the completion of the main application. Although there was no dispute that trucks were still coming onto the property and that products were being unloaded and taken into the store, the applicant was of the view that the trucks should be able to back up to the store's loading dock.
The essence of the responding union's position was that the parties had reached an agreement in December with respect to trucks coming onto the property and being unloaded at the southwest corner. The union asserts that it was only after the January 24th Court decision that the company resiled from this agreement, manufactured a provocative and gratuitous delivery for the purposes of litigation, and then brought the main application in this case. Counsel for the union argues that the restrictions requested would essentially vitiate the right to picket and would deprive employees of a fundamental economic sanction. The resulting harm to the union's efforts to obtain a collective agreement would be irreparable. Counsel also takes the position that interim relief is not available after the main proceeding has commenced, and that the harm to the company is purely financial and thus not appropriate for interim relief.
Section 92.1 provides as follows:
92.1-(l) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.
(2) A party to an interim order may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.
The language of section 92.1(1) makes it clear that the Board has a large measure of discretion in determining applications for interim relief. In applying this section, the Board has considered both whether the applicant has an arguable case on the main application, and whether the possible harm which might flow from granting the application outweighs that which may occur if the requested relief is denied. With this basic framework in mind, the Board has also considered such factors as delay, whether the harm is purely economic, the preferred labour relations circumstances to be preserved or created on an interim basis, the preservation of a meaningful remedy on the main application, the effect on the process of collective bargaining or the collective bargaining relationship, the scheme of the Act, and broader public or labour relations policy considerations. The Board's assessment takes place in the context of its specialized expertise in labour relations and the administration of the statutes it applies. (See: Loeb Highland, [1993] OLRB Rep. Mar. 197, Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358, Price Club Canada Inc., [1993] OLRB Rep. July 635, Blue Line Taxi Company Limited, [1993] OLRB Rep. Aug. 793, La Section cat holique du Conseil scolaire de langue francaise d'Ottawa-Carleton, [1993] OLRB Rep. Sept. 844, Reynolds-Lemmerz Industries, [1993] OLRB Rep. Mar. 242, The Hydro-Electric Commission of the City of Ottawa, [1993] OLRB Rep. Nov. 1231, Metropolitan Toronto Apartment Builders Association, [1993] OLRB Rep. Mar. 219, The Bay-Kingston, et al.,[1993] OLRB Rep. Dec. 1350, and Fort Erie Duty Free Shoppe Inc., [1993] OLRB Rep. Dec. 1307 and Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019.)
Turning to the arguments in this case, we are not persuaded by the union's view that interim relief is not available because a hearing has already commenced on the main application. Section 92.1 refers to either an intended or a pending proceeding in setting out the circumstances in which the Board may grant interim orders. "Pending" is defined in part in the Concise Oxford Dictionary (J. B. Sykes ed. Oxford: University Press, 1985) as "undecided, awaiting decision or settlement". Black's Law Dictionary (H. C. Black, St. Paul: West Publishing Co., 1990) includes the following definition:
"Begun, but not yet completed; during; before the conclusion of; prior to the completion of; unsettled; undetermined; in process of settlement or adjustment. Awaiting an occurrence or conclusion of action, period of continuance or indeterminacy. Thus, an action or suit is "pending" from its inception until the rendition of final judgment."
In the case at hand, the fact that hearings have started does not suggest to us that the main application is no longer pending. Rather, it is more consistent with both the definitions set out above and the Board's usage and practice to say that the main application is pending until it is finally determined. Of course to the extent that an application for interim relief coincides with the hearing of the main application, this may have implications with respect to the balance of harm if a final decision can be anticipated shortly. However, this is a matter of discretion with respect to the appropriateness of an interim order, rather than an issue relating to the Board's jurisdiction.
The appropriateness of interim relief depends largely on a consideration of the kind of factors set out above. In this regard, the Board commented on the requirement of an arguable case in Loeb Highland, supra, to this effect:
Turning first to the idea of a threshold test with respect to the merits of the main application, we have some concern about applying a high level of scrutiny to that application at the time of a request for an interim order. To the extent that such scrutiny may imply a form of prejudgement of the final disposition of the main matter, it is not particularly compatible with the scheme for interim relief set out in the Act and the Board's Rules of Procedure. More specifically, the procedure for interim relief contemplated by the Board's Rules reflects the inherent necessity for expedition in these matters. To that end, evidence is filed by way of certified declarations which are not subject to cross-examination. Indeed, section 104(14) of the Act and Rules 92 and 93 indicate the Board may not hold an oral hearing at all, but may receive the parties' arguments in writing as well.
This means that the Board is not in a position to make determinations based on disputed facts. In these circumstances, it would normally be unfair for an interim order to be predicated to any significant extent on a decision with respect to the strength or weakness of the main case. That should await the hearing of the main application when the Board hears oral evidence and can make decisions with respect to credibility based on the usual indicia, in a context where the parties have a full right of cross-examination. This is particularly important in cases such as the section 91 complaint to which this application relates, where decisions are often based on inferences and the various nuances of credibility play a key role. In other words, the granting of interim relief in this context should usually be based on criteria which minimize prejudging the merits of the main application.
Our practical concern that the Board's decisions on interim relief be insulated to some extent from the merits of the main application is reinforced by the language of section 92.1(1), which provides that an interim order can be obtained in an intended proceeding as well as in one already filed. If an interim order is available even before the main proceeding has been commenced, it suggests that interim relief is less dependent upon the main application than one might otherwise think.
Moreover, a number of the provisions of the Labour Relations Act, including some of those which the applicant alleges were breached in the complaint in this matter, are subject to a reverse onus where a responding party must establish that it did not violate the Act. The effect is to complicate an assessment of the merits, including the issue of what would constitute a prima facie case in these circumstances. In addition, the interim order power contained in section 92.1 applies to an extensive package of legislative amendments, many of which involve new or reshaped jurisdiction for the Board. This means that it may be difficult to evaluate the strength of the merits of any particular case, at least until the Board has had an opportunity to develop case law in these new areas. Lastly, even where the Board can rely on well-established jurisprudence, there must be some allowance for novel arguments to be presented to it from time to time. While no tribunal encourages frivolous applications, it is also true that the Board must be responsive to changes in labour relations if its jurisprudence is to remain vital and relevant.
At the same time, it is clearly essential that there be some connection between interim relief and the merits of the main application. Common sense suggests that an interim order is inherently subordinate to the main application, a proposition which is given added cogency in this context by Rule 88. That rule makes it clear that a copy of the main application must be filed along with the request for an interim order, which to some extent offsets our view of the effect of section 92.1 in intended proceedings. Isolating the interim application by the absence of any requirement with respect to the strength of the main application might also carry with it the possibility of abuse, and might strand the Board in a situation where grounds for an interim order might be made out but the main application was entirely and obviously without any merit whatsoever.
With this in mind, we find it most appropriate to set out as one requirement in a test for interim relief that the main application must reflect an arguable case. By this we mean that if the applicant's assertions can be established, there is at least an arguable breach of the Act, or an arguable case for a remedy within the parameters of some provision of the Act. While leaving room for some innovation by parties, such a test protects the integrity of the Board's processes by precluding interim relief where the main application is frivolous or vexatious. This provides the Board with an element of security and some coherence between the main application and the interim relief power, but gives recognition to our other concerns described above.
We also find it more appropriate to consider this requirement as simply one ingredient in a test for interim relief, rather than an initial threshold of some kind. Setting up an assessment of the merits as a preliminary hurdle in an interim relief test suggests a two-step analysis which we find unnecessarily formal in the circumstances.
The Board subsequently noted in Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 242 that an applicant did not have to make out a strong case, but merely a plausible one. In Morrison Meat, supra, the Board added that to the extent that an applicant's case was capable of meeting a more rigorous standard, that may be a factor that the Board will consider as well.
In this case, the company argues that the Board should impose restrictions because the facts it alleges amount to a breach of the common law. If the picketing is in breach of the common law, counsel states, it necessarily constitutes undue disruption within the meaning of section 11.1, and this entitles the company to relief. While counsel reiterated that the conduct which was the subject of the main application was illegal, it was not suggested that it was a violation of the Labour Relations Act or any other statute which the Board administers.
We have some significant reservations about the proposition that an alleged breach of the common law automatically translates into restrictions on picketing under section 11.1. To obtain a remedy at the Board, an applicant must bring itself within the tests set out in section 11.1 which provides as follows:
1-(I) This section applies with respect to premises to which the public normally has access and from which a person occupying the premises would have a right to remove individuals.
(2) Employees and persons acting on behalf of a trade union have the right to be present on premises described in subsection (I) for the purpose of attempting to persuade employees to join a trade union. Attempts to persuade the employees may be made only at or near but outside the entrances and exits to the employees' workplace.
(3) During a lock-out or lawful strike, individuals have the right to be present on premises described in subsection (1) for the purpose of picketing, in connection with the lock-out or strike, the operations of an employer or a person acting on behalf of an employer. The picketing may occur only at or near but outside the entrances and exits to the operations.
(4) No person shall interfere with the exercise of a right described in subsection (2) or (3).
(5) On application, the Board may impose such restrictions on the exercise of a right described in subsection (2) or (3) as it considers appropriate in order to prevent the undue disruption of the operations of the applicant.
(6) An application respecting the exercise or alleged exercise of a right described in subsection (2) or (3) may be made only to the Board and no action or proceeding otherwise lies at law.
(7) A party to an order made under subsection (5) may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.
(8) In the event of a conflict between a right described in subsection (2) or (3) and other rights established at common law or under the Trespass to Property Act, the right described in those subsections prevails.
The priority over the common law set out in section 11.1(8) and the comprehensive structure of these provisions suggests that section 11.1 may provide a complete code with respect to the Board's jurisdiction on picketing. The role of the common law in this scheme is far from obvious. At the very least, the equation that a breach of the common law amounts to undue disruption under section 11.1 is too general a proposition to be compelling. Presumably there may be overlap in the sense that some activities will represent both a breach of the common law and undue disruption within the meaning of section 11.1. On the other hand, some conduct which may be tortious or otherwise contrary to common law doctrine may have little or no disruptive effect. We note in passing that there has been no judicial finding with respect to the common law and picketing at this store; rather the decision of January 24, 1994 addresses activity at Store 808.
It was apparent that the company wished the Board to approach the application of section 11.1 in a manner which would essentially mirror the common law regime~ at least in terms of the impact on the parties, if not in terms of analysis. Where jurisdiction in this area has been transferred from the Courts to the Board and a new statutory test adopted, it is not clear that such an approach is even available to the Board. Among other things, simply as a matter of statutory interpretation, it seems unlikely that the Legislature would go to such lengths to fashion a new regime, with the intent that it replicate the results of a pre-existing one.
Nevertheless, we are prepared to assume, without finding, for the purposes of this matter that the company has an arguable case because we are not inclined to grant an interim order for reasons relating to the balance of harm.
Turning to the parties' arguments in this regard, we find ourselves firstly unconvinced by the union's position that interim relief should not be granted because the possible harm to the company would be purely economic. The Board's cases in this regard, including Morrison Meat, supra, and Blue Line Taxi, supra, indicate that one of the factors the Board may consider is whether the harm cited in support is monetary and can be adequately addressed in the main application. In this case, however, although the harm asserted by the company is financial in nature, it is not apparent that there is any forum for subsequent compensation if it is successful in the main application. In that sense, the situation can be distinguishable from the Board's other cases in this regard.
On the other hand, the company is asking us to restrict the exercise of a statutory right under the Act, albeit on an interim basis. In addition, if picketing rights of employees are restricted to the extent the company has requested, the effect will be to essentially nullify a crucial aspect of the economic sanctions they can bring to bear to reach a collective agreement. Even a less restrictive order is likely to have a significant impact on their rights. Again there is no forum for redress or cure for the labour relations harm stemming from granting an interim order in this regard.
We also find it difficult to address the general assertions made by the company about the conduct of the picketers and resulting harm without reference to specific incidents. As the Board noted in Metropolitan Toronto Apartment Builders, supra:
In applications for interim relief, the materials on which the Board bases its determinations are essentially the pleadings accompanied by written declarations. Under the Board's Rules of Procedure, there is no provision for cross-examination on these declarations. The Board may schedule an oral hearing, as it did here, to hear the parties' submissions. It is evident that great reliance is placed on the written declarations. Thus, it is reasonable to expect these declarations to contain a certain level of detail and specificity, at least with respect to those matters which should be within the knowledge of the parties, such as the harm that will occur. Absent this, parties will encounter some reluctance from the Board about relying on broad statements without any supporting facts.
In this case before us, the lack of supporting detail makes these general assertions less compelling than they might otherwise be.
This brings us to the issue of delay. The Board has said in a number of interim relief cases that delay may be a significant factor in its consideration. In Morrison Meat, supra, the Board dealt with a case where approximately three months had passed between the time of the events complained of and the interim order application. The Board made the following comments on the issue of delay:
A further factor which the Board may consider is expedition from at least two perspectives. There is no statutory time limit with respect to the bringing of an application for an interim order. However, given the emphasis placed on expedition in both the statute and the rules (the present matter came on for hearing within 5 days of the filing of the application), the Board will expect applications under section 92.1 to be filed in extremely close proximity of the events giving rise to the application. An applicant who delays undermines its own ability to convince the Board of any urgent or pressing need for interim relief. Perhaps more important, however, as the passage of time between the events giving rise to the request and its determination increases so too does the Board's ability to quickly intervene decrease. Furthermore, and at least to the extent that granting an interim order interferes with an employer's management of its enterprise, the length of time during which an employer's action has been implemented may easily impact on the harm consequent from any Board order effectively undoing that measure, even on an interim basis.
Similarly, in Price Club, supra, the Board noted that a delay of only a month "lends considerable credence to the responding party's contention that the matter is not sufficiently urgent in nature to warrant the granting of an interim order". In La Section catholique, supra, where there had been a delay of some three months, the Board also commented that "the lack of expedition suggests a lack of urgency" and the Board made similar observations in the Metropolitan Toronto Apartment Builders case, supra.
In the matter before us, the picketing and the southwest corner arrangement at Store 109 have been ongoing since last December. The company concedes that it has not had direct access to the store's loading docks "for a long time". The only action the company has taken with respect to this store was to restrain picketing around the perimeter of the property, which resulted in the consent order of December 20th. No action was taken with respect to the picketing which was the subject of this application until January 28, 1994 when the main application was filed. The parties advise us that they expect the main application to be completed this week, which amounts to two more days of hearing. Normally, the Board will attempt to issue at least a bottom line decision quickly in a picketing case, so the situation is likely to be addressed on the merits very soon. (As it turned out, the strike settled before a decision could be issued on the main application, so expedition was not an issue.) Of course, the short duration of any interim order has implications for the harm cited by the union as well. However, if the company has tolerated this situation for more than five weeks~ it is not clear that several more days will make a difference in terms of the balance of harm.
The company states that it was pursuing litigation relating to other stores. Assuming that this was the case, we do not find that it changes our view. We are not approaching this issue as if it was a matter of fault or estoppel, or a question of the company sleeping on its rights. Rather the issue is a practical one. The company argues that the situation is so pressing that if the harm it asserts continues even for several more days, it would outweigh the harm to the union of restricting the picketing. Where the picketing has been continuing for five weeks and the hearing of the main application is expected to conclude in several days, such urgency is less apparent.
There was some suggestion by the parties that delays to trucks had increased since the January 25th incident, allegedly because employees were frustrated by what they viewed as provocative conduct on the part of the company in withdrawing from the southwest corner arrangement and setting up the filmed delivery scenario. Again, in light of the fact that the main application is expected to conclude this week, it appears that the harm alleged by the company in this regard will be addresed on its merits very shortly.
In the course of the hearing, the company suggested more limited restrictions on picketing, although it was clear the company remained of the view that at best, the picketing should have only a very nominal effect on the company's operations. However, section 11.1 indicates that the Board is responsible for protecting the new rights created in this provision as well as restricting them, and it is preventing "undue disruption" rather than mere disruption which triggers the Board's authority to impose restrictions. In this context, we do not find that that the limitations suggested would change the balance of harm reflected in this interim relief application. As a result, it is not necessary for us to rule on whether we would permit the company to amend its application accordingly.
Looking at the matter as a whole, on balance we found that the potential harm of denying the interim order requested was less than the harm which might flow from granting it, and we dismissed the application.
DECISION OF BOARD MEMBER G. O. SHAMANSKI; August 2, 1994
I dissent.
In my view, the applicant has made out an arguable case with respect to the merits of the main section 11.1 application, particularly in light of the recent court decision based on an almost identical fact situation (Court File No. 889/93, January 11, 1994). In that case the Divisional Court unanimously determined that the picketers' obstruction of the ingress and egress to the premises constituted unlawful conduct which should be enjoined by this Board. I agree with the applicant's submissions that activity which is deemed by the courts to be unlawful should be enjoined in the interim, pending the disposition of the main application.
Furthermore, the balance of harm in this case weighs in favour of the applicant. The Board's jurisprudence indicates that interim relief is not available if the harm complained of in the main application is purely financial, and therefore compensable. However, in this case, although the harm is economic, it may not be compensable. If the applicant succeeds in the main section 11.1 application, it seems unlikely that the economic harm could be the subject of a monetary award given the difficulty of assessing the economic consequences resulting from the interference with the applicant's operations.
Finally, although the complaint relates to activity that has been going on since early December, interim relief should not be precluded for reasons of delay. The applicant did not ignore or accept the activity complained of, but on the contrary, had sought a remedy in the court. Given the ongoing nature of the court proceedings involving several of the applicant's operations, including store 109, I am persuaded that this interim application was filed within a reasonable amount of time. As long as the matter is of sufficient urgency and intervention is likely to be effective, and assuming that the other interim relief criteria are met, the Board should allow the interim relief requested.
I would have fashioned an interim order along the same lines as the agreement reached by the parties and endorsed by Mr. Justice Wright of the Ontario Court of Justice on December 24, 1993. It would have been appropriate to order that, pending the final disposition of this case, the picketers could delay the trucks for a period of five minutes in order to convey information to the driver, up to a maximum of thirty minutes as long as the driver wished to receive more information.