Court File and Parties

COURT FILE NO.: CV-20-644743 DATE: 2020-08-18 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: BANK-STROX RENOVATION INC., Plaintiff/Moving Party AND: LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183, DEREK MELO and OTHER UNIDENTIFIED INDIVIDUALS, Defendants/Responding Parties

BEFORE: Kimmel J.

COUNSEL: Daniel E. Attwell and Kim Nusbaum, for the Plaintiff Daniel Iny and Geetha Philipupillai, for the Defendants

HEARD: August 7, 2020

Endorsement

[1] A motion by Bank-Strox for an urgent interim and interlocutory injunction came before me for hearing on August 7, 2020. Given the urgency, I provided an initial endorsement to advise the parties of the outcome of the motion on August 14, 2020, with an endorsement containing my reasons to follow. My reasons are set forth in this endorsement.

Overview

[2] Bank-Strox engages primarily in the restoration of balconies and garages at apartment buildings and condominium towers.

[3] Laborers’ International Union of North America, Local 183 (LIUNA) is the certified bargaining agent (the “Union”) of approximately thirteen (13) employees of Bank-Strox (the “Members”), who are currently negotiating for a first collective agreement with Bank-Strox. The Members were in a legal strike position at 12:01 a.m. on July 23, 2020.

[4] On July 23, 2020, the defendants and other members/representatives of Local 183 commenced picketing at the entrances of six apartment buildings and condominium sites in Toronto at which Bank-Strox is currently engaged in restoration projects: 1500 Bathurst Street, 276 St. George Street, 3700 Kaneff Crescent, 490 Eglinton Avenue East, 396 Avenue Road, and 666 Spadina Avenue (collectively, the “Sites”).

[5] Bank-Strox and the Members were in litigation for a number of years leading up to the certification of the union, and there is other ongoing litigation between the parties.

[6] Since the strike began on July 23, 2020 and up until the hearing of this motion, the police had been called nine times to attend at four of the Sites as a result of the picketing activity between July 23 and 27. While the strike is still in its early days and the aggressive picketing activities that precipitated this motion have not been continuous or persistent across all six Sites, it did not start off as a peaceful demonstration. Bank-Strox is concerned that the presence of the police did not effectively deter the unlawful and aggressive actions of the picketers and that their actions were only curbed as a result of the injunction proceeding and will resume if not enjoined.

[7] This is not an extreme situation, yet. The Union is correct that a robust society should be able to tolerate a certain level of tension and acrimony on a picket line. However, the picketers did not set the tone of this strike as a peaceful demonstration. Their initial behaviour on the picket lines was aggressive and the presence of the police, when called, did not cause them to cease all of the behaviours that the police advised them were unlawful. What has transpired so far is enough to satisfy the test for granting an injunction, which will be tailored to the situation so as to minimally impair the rights of the Members to express themselves during their legal strike action.

Facts

[8] Bank-Strox carries out its work at the Sites through a mixed use of employees and sub-contractors, with materials delivered daily or near-daily from external suppliers.

[9] The employer’s evidence regarding the Sites establishes that picketing started on July 23 and continued on weekday mornings, interfering with the ability of workers and sub-contractors to enter and exit certain of the Sites and bring in their tools and equipment for the first part of their workday. There is evidence relating to interference at all Sites on July 23 and 24, 2020 and evidence of interference at two of the Sites continuing after that, from July 27-31 and on August 4, 2020. The picketing typically lasted between three to five hours, during which vehicles were delayed in entering and exiting the premises. The Union acknowledges this but says that following these morning delays, the employer, its non-union employees and subcontractors have been free to access the six jobsites unimpeded for the remainder of the day.

[10] The picketing was not limited to interference with the commencement of work at the Sites during the weekday mornings. There were instances of the picketers entering into the Sites. Some incidents involved physical altercations or accusations of such, including:

a. An incident, on July 27, 2020 at the Spadina Site, was captured on video showing a worker, who was attempting to enter the jobsite, being pushed into a garbage bin and physically chest bumped and blocked from passing through by some picketers, while other picketers stood by yelling at him, all of which occurred on the Site premises; and

b. Instances of false accusations of provocation by picketers such as:

i. The initial statements of five picketers to the police that the July 27 incident at the Spadina Site was provoked by the worker (who was shoved into the garbage bin and chest bumped), which was proven inaccurate by the video footage;

ii. An incident, on July 24 at the Eglinton Site, of a picketer forcing himself on top of a contractor’s vehicle and claiming to have been struck, which was not verified by the picketer and has been contradicted by the driver of the vehicle; and

iii. An unsubstantiated (and contracted) allegation on August 5, 2020 that the driver of a vehicle had hit a picketer at the Spadina Site which was later said to be the justification for delaying that vehicle’s entry onto the Site.

[11] Bank-Strox has identified a number of instances of what it characterizes as illegal or unlawful picketing activity, some examples of which are summarized as follows: [1]

DATE	SITE	SUMMARY OF INCIDENT	EVIDENCE
July 23, 2020	666 Spadina	A picketer made physical contact with a subcontractor while attempting to physically stop the subcontractor from crossing the picket line on foot. A Bank-Strox employee was blocked from entering the jobsite by eight picketers, even after he told the picketers that the building is also his residence and showed his apartment keys and electronic fob. When he walked past the picketers to enter the building, four of the picketers followed him to the entrance.	Affidavit of Michael Lorenzon, Sworn July 30, 2020, at para. 5. Affidavit of Nerville Jason Augustin, Sworn July 30, 2020, at paras. 9, 12.
July 23, 2020	3700 Kaneff Crescent	A contractor attempted to cross the picket line in a vehicle and was blocked by picketers who had improperly relocated portions of safety fencing to prevent vehicles, including vehicles of building tenants, from entering or exiting the jobsite. When the contractor and his co-worker attempted to cross the picket line, the picketers yelled that they could have “fucking 20 guys here in fuckin 5 minutes, you fuckin figure it out. You ain’t gonna be working peaceful today, I can tell you that.” Bank-Strox employees were told by picketers that they would be enforcing a “complete blockade” of the jobsite until the Employer agreed to the union’s demands.	Affidavit of Alex Brady, Sworn July 30, 2020, at paras. 3 and 9. Affidavit of Habte Gemechu, Sworn July 30, 2020, at para. 7. Affidavit of Nicholas Uhumamure, Sworn July 28, 2020, at paras. 3, 7, 14, 17, 21.
July 23, 2020	276 St. George Street	A contractor was prevented from entering the jobsite with his vehicle. Picketers threatened the contractor by stating, “if you work today, it will get worse.” Picketers yelled at the contractor after he snuck into the site stating that the Ministry of Labour would get him in trouble for working.	Affidavit of Marcio Brites, Sworn July 30, 2020, at paras. 4-5, 11, 13.
July 23, 2020	396 Avenue Road	A contractor and his crew were unable to work at all due to the presence of picketers on the job site.	Affidavit of Dan Goldsmith, Sworn July 30, 2020, at para. 4.
July 23, 2020	Various Job Sites	An employee of the Property Manager for various Sites observed picketers standing on private property, blocking the entrances to 666 Spadina with their bodies and with 3-4 pick-up trucks, and standing at the entrance and blocking any work from being performed	Affidavit of Nolan Rodrigues, Sworn July 29, 2020, at paras. 8, 16.
July 24, 2020	3700 Kaneff Crescent	A Bank-Strox employee and a contractor attempted to cross the picket line in a vehicle and were blocked by picketers. They were able to gain access to the building on foot, but could not work because the majority of their crew’s tools were stuck outside the job site. A Bank-Strox employee was prevented from crossing the picket line in his vehicle. The employee was advised that the blockade would continue indefinitely. The employee observed picketers blocking the entrance for over 3.5 hours.	Affidavit of Habte Gemechu, Sworn July 30, 2020, at para. 13. Affidavit of Alex Brady, Sworn July 30, 2020, at para. 22. Affidavit of Nicholas Uhumamure, Sworn July 28, 2020, at paras. 22-26.
July 24, 2020	396 Avenue Road	The skid steer used by a contractor to bring materials into the jobsite was delayed by picketers for four hours despite the presence of police officers onsite for two hours. When the picketers were leaving, one stated that they would be back on Monday and “would bring 100 guys and be ready to go to war.”	Affidavit of Dan Goldsmith, Sworn July 30, 2020, at para. 19. Affidavit of Joe Vermulst, Sworn July 30, 2020, at para. 26. Affidavit of Danael Nikolov, Sworn July 30, 2020, at paras. 19 and 21.
July 24, 2020	666 Spadina	Picketers blocked the entrances and physically prevented employees from entering the jobsite for three hours. Picketers argued with and threatened a delivery driver, refusing to allow him access to the site. The picketers threatened the driver to “be careful.” A picketer took photos of the delivery driver’s licence plate, vehicle and face and showed it to the driver, stating: “That’s you! Remember, remember I have your licence plate.”	Affidavit of Zlati Nikolov, Sworn July 29, 2020, at paras. 14, 16, 18, 21, 25, 26, 29, 30. Affidavit of Georgi Bakalov, Sworn July 28, 2020,at paras. 9, 11, 12, 15, 16, 18.
July 24, 2020	1500 Bathurst	A Bank-Strox employee was prevented from entering the jobsite. Picketers tried to push the front door to the jobsite closed, almost hitting another worker. Picketers were observed blocking the entrances to the site for 4.5 hours.	Affidavit of Jerahmeel Laurent, Sworn July 30, 2020, at paras. 9-13.
July 27, 2020	666 Spadina	A Bank-Strox employee tried to cross the picket line on foot and was forcefully shoved by a picketer into a metal garbage bin. The picketers then continued to obstruct the employee from entering the jobsite by “chest bumping him” several times. Picketers yelled at the employee that they would not let him enter. The employee called the police and advised the police he would like to press charges.	Affidavit of Zalti Nikolov, Sworn July 29, 2020, at para. 45, 49, 50, 51, 56. Affidavit of Nerville Jason Augustin, Sworn July 30, 2020, at para. 30.
July 30, 2020	276 St. George Street	Picketers were observed trespassing onto the jobsite.	Affidavit of Marcio Brites, Sworn July 30, 2020, at paras. 21.
August 5, 2020	666 Spadina	A subcontractor was blocked from entering the jobsite for 70 minutes. Picketers gave no indication that he would be allowed to cross so he left.	Affidavit of Marian Luczko, Sworn August 6, 2020, at paras. 2-5.

[12] The police were called at least nine times to four of the Sites between July 23 and 27, 2020. The police told the picketers that they had to stay on public property and that they could not block access to the Sites, and even advised the picketers that they could be arrested for trespass and assault. However, the picketers did not stop blocking access to the Sites. Nor did the police lay any charges, even after the victim of the July 27 incident at the Spadina Site, who was pushed and chest bumped, indicated that he wanted to press charges.

[13] Aside from certain evidentiary challenges (which I have attempted to avoid by removing the references to them in the above chart), the defendants do not dispute the described events. Their position is that these instances do not amount to a sufficient basis to satisfy the legal test and the plaintiff’s onus for an injunction to be granted.

Issues to be Decided

[14] The following issues require my determination on this motion:

a. Having regard to the threshold requirements of ss. 102(3) and (4) of the Courts of Justice Act, does the admissible evidence establish that the plaintiff’s reasonable efforts to obtain police assistance have failed?

b. Does the admissible evidence establish a serious issue to be tried regarding the alleged unlawful activities of the picketers with respect to alleged blockades, trespass, assault and intimidation?

c. Does the admissible evidence establish that the plaintiff may suffer irreparable harm resulting from the alleged unlawful picketing activities?

d. Does the balance of convenience favour the granting of an injunction in this case?

e. If so, should the injunction be time-limited (interim, as opposed to interlocutory until trial)?

f. Is the requested scope of the injunction appropriate?

The Test for an Injunction in a Labour Dispute

[15] Section 102 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) governs the granting of an injunction in connection with a labour dispute. Section 102(3) establishes a threshold requirement that the court be satisfied 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.

[16] Section 102(4) of the CJA also requires that affidavit evidence in support of a motion for an injunction to restrain a person from an act in connection with a labour dispute shall be confined to statements of facts within the knowledge of the deponent.

[17] The requirements to obtain interim and/or interlocutory injunctive relief are the same under ss. 102 and 101 of the CJA. The Moving Party must establish:

a. That the merits of the case demonstrate that there is a serious issue to be tried;

b. That the Moving Party/Plaintiff would suffer irreparable harm if an interim and/or interlocutory injunction were not granted; and

c. That on a “balance of convenience” an interim and/or interlocutory injunction should be granted.

See RJR-MacDonald Inc v. Canada (Attorney General), [1994] 1 SCR 311 at 334; Long Lake Forest Products Inc v. United Steelworkers Local 1-2693, 2006 ONSC 34442 (Ont. S.C.), at para. 17; and Fleming Door Products Ltd. v. Hazell, 2008 ONSC 38961 (Ont. S.C.), at para.14.

[18] The defendants’ position predominantly focuses on s. 102 evidentiary and threshold issues, and the lack of admissible evidence on the question of irreparable harm. While the existence of a serious issue to be tried and the balance of convenience are not conceded, they were not as strongly opposed.

Analysis of Issues to be Decided

(a) Evidentiary Considerations Under s. 102(4) of the CJA

[19] The defendants, in a schedule to their cross-motion, have objected to various paragraphs of the plaintiff’s affidavits. They claim that these paragraphs contain statements based on information from others that are said not to comply with the requirement that the evidence in support of an injunction in a labour dispute be confined to statements of facts within the knowledge of the deponent. The defendants ask that these paragraphs be struck due to their failure to comply with s. 102(4) of the CJA and disregarded by the court in the determination of the relief sought. As I have indicated previously in these reasons, I do not need to rely upon any of the challenged hearsay statements for their truth and have not done so in reaching my decision. However, for the posterity of the record on this motion I will rule on the objections.

[20] Not all of the paragraphs identified in the Amended Schedule “C” to the defendants’ factum (corresponding with Schedule “A” to their notice of cross-motion) offend s. 102 (4). Some of the objections refer to statements made to, or overheard by, the affiant and the fact that they were made is not challenged by the person said to have made the statements. The affiant does have direct knowledge of those statements having been made. In some instances, the mere fact that the statement was made to the affiant may be relevant, regardless of whether the facts stated were true or not. All of the affiants were available to be cross-examined. It is not suggested that the individuals who were identified as having made the statements were not available to give evidence on this motion.

[21] In the context of a labour injunction, the rule against hearsay is not offended by the mere fact that the recipient of a statement is referring to the fact that the statement was made to explain their actions or as a foundation for a belief that they attest to having formed on the basis of the statement. See Maple Leaf Foods Inc. v. Thorne, [1998] O.J. No. 435 (Ont. Gen. Div.), at para. 14. The relevance or weight to be given to their beliefs is a different matter, but that is not a question of admissibility.

[22] Consistent with the approach taken by the court in Vale v. USWA Local 6500 et al., 2010 ONSC 1774, at para. 12 and Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693, 52 OR (3d) 694 (C.A.), at para. 33, without going through each of the impugned paragraphs in the body of these reasons, the subset of objected paragraphs in the plaintiff’s affidavits that are offside of s. 102(4) will be disregarded and not relied upon by the court. [2]

[23] The defendants have also asked the court to make a finding that one of the affiants for the plaintiff, Mr. Bankov, is not credible because of an earlier finding in the certification proceedings regarding his credibility. See Labourers' International Union of North America, Local 183 v. Bank-Strox Renovation Inc., at paras. 89, 90, 102 and 114. Mr. Bankov’s evidence is not essential to the evidentiary foundation for the unsuccessful efforts to obtain police assistance or for the alleged unlawful picketing activities. He has provided some evidence on the question of irreparable harm which is discussed below. I am not prepared to make a blanket finding that Mr. Bankov is not credible and that his evidence should be wholly disregarded, but, as will be apparent from my reasons, I have not placed any significant reliance on his evidence.

(b) Efforts to Obtain Police Assistance and Protection and to Prevent Unlawful Activities Under s. 102(3) of the CJA

[24] In a motion or proceeding for an injunction to restrain activity in connection with a labour dispute, the moving party must, as a jurisdictional pre-condition to the granting of a labour injunction under s. 102(3) of the CJA, satisfy the court that it has made reasonable efforts to obtain police assistance to: (i) prevent or remove an alleged danger of damage to property, or (ii) injury to persons, or (iii) obstruction of or interference with lawful entry or exit from the premises in question, or (iv) a breach of the peace, and that those efforts have not been successful. See Industrial Hardwood Products, at paras. 16 and 17.

[25] While s. 102(3) does not limit the issuance of an injunction to circumstances where repeated police attendance is required in order to ensure entry and exit to property, the jurisdictional pre-condition in the section is not satisfied merely because requests for police assistance cannot immediately be satisfied by the police service, or merely because of the creation of some inconvenience. See Industrial Hardwood Products, at para. 21.

[26] The defendants maintain that the admissible evidence does not establish that the plaintiff’s reasonable efforts to obtain police assistance have failed to result in an acceptable degree of control over the situation. The relevant considerations include the degree of obstruction, its duration on each occasion and how many days it has gone on. See Industrial Hardwood Products, at para. 23.

[27] If a police service has adopted a non-intervention policy in a labour dispute, an employer seeking an injunction must establish a sufficiently serious ongoing obstruction, having regard to the factors set out in the decision of the Court of Appeal in Industrial Hardwood Products. See Cancoil Thermal Corp. v. Abbott, [2004] O.J. No. 3016 (S.C.), at paras. 17, 18.

[28] The plaintiff relies primarily on its efforts to have the police attend to prevent the “obstruction of or interference with lawful entry or exit from the premises in question” under s. 103(2)(iii), which it maintains have not been successful. The premises in question here are the Sites at which the Members are picketing.

[29] The plaintiff’s reasonable efforts are demonstrated by the number of instances, over a short period of time, that the police were called and asked for assistance at the Sites (approximately nine times at four of the six Sites, over roughly the first week of the strike). I find that Bank-Strox has made reasonable efforts to obtain police assistance.

[30] Picketers have no right to interfere with or stop any individual from crossing picket lines, nor do picketers have a right to interfere with them in any other way. See for example, Brookfield Properties Ltd. v. Hoath, 2010 ONSC 6187, at paras. 32-36. While there is some tolerance for delay, where there is a risk of the commission of independent torts, such as trespass and assault as has been demonstrated from the conduct of the picketers in the early days of this strike, the police have a duty to assist with ingress and egress to the premises. See Industrial Hardwood Products, at paras. 18-22; Canada (Attorney General) v. Gilehan, [1991] OJ No 2617, at 3; and Sobeys Inc. v. United Food and Commercial Workers Canada, Local 175, 2013 ONSC 1207, at para. 34.

[31] In Ideal Railings, while police were present at the employer’s facility, they did not assist in the access or egress of Ideal’s trucks. In Brookfield Properties, the police informed the company that they would not interfere with labour relations and their role was to keep the peace and only address Criminal Code violations. In both of these decisions, the police intervention was considered ineffective and the injunction was granted. See Ideal Railings Ltd. v. Laborers’ International Union of North America, Local 183, 2013 ONSC 701, at paras. 22, 31-32; and Brookfield Properties, at para. 22.

[32] The police have been called to the various jobsites of the plaintiff in this case on numerous occasions and have been ineffective at ensuring lawful entry to and exit from the Sites. The presence and efforts of the police, both while they were at the Sites as well as following their departure, were ineffective in enabling Bank-Strox employees and contractors access to the Sites with their tools. There are examples of this in the record on July 23 and 24 at the St. George Site, on July 24 at the Kaneff and Avenue Road Sites, and on July 27 and August 5 at the Spadina Site.

[33] The plaintiff’s concern about the delayed response times of the police is not overwhelming. However, the admissible evidence does establish that picketers were not universally respecting the advice of the police when told not to trespass and not to block non-unionized workers and sub-contractors from entering the Sites. While some picketers responded to this advice by moving off the private property, their conduct appears to have persisted in a number of instances, despite the advice and presence of the police. It is not clear to me whether it was the police or the initiation of court proceedings that has de-escalated some of the early physical violence.

[34] Furthermore, police have not been prepared to act or to make arrests when their advice is not followed. Although the police have tried to broker agreed protocols (and in one instance appear to have been told by a picketer that there was some agreement or protocol in place when no such agreement exists), none of the police efforts appear to have put an end to the morning work interruptions at the Sites. To the contrary, the verbal and physical altercations have persisted. The few threats of arrest arising from physical confrontations were not followed through. The court is to look at the overall effectiveness of the police involvement and not just at what transpires while the police are present. See Industrial Hardwood Products, at paras. 22-23.

[35] While these occurrences have taken place over a short period of time, I find that they amount to a sufficiently serious and ongoing, daily obstruction of the plaintiff’s ability to undertake its planned work at the Sites. The plaintiff has satisfied its onus under s. 102(3) of the CJA.

[36] The policy foundation of s. 102(3) is to ensure that injunctions in labour disputes are not granted freely:

Strikes and the picket lines that go with them are evolving human dramas where risks of property damage, personal injury or obstruction of lawful entry are best controlled by flexible and even-handed policing. Only where this fails should the court, with its blunt instrument of the injunction, be resorted to. [emphasis added]

Industrial Hardwood Products, at para. 16.

[37] I am not criticizing the attempts at even-handed policing that have taken place thus far. The continued efforts of the police services to respond to incidents at the Sites and attempts to de-escalate them and keep the peace are appreciated and encouraged. However, the picketers have shown a lack of respect for these efforts by their continued delay of vehicles and attempts to obstruct individuals from entering the Sites to work each weekday morning and by their willingness to threaten the workers and in some instances get physical. This behaviour needs to be curtailed before it escalates further. The picketers appear to be willing to test the limits and extent to which the police are prepared to get involved. It is not obvious to me that the police presence will serve as a sufficient deterrent in the circumstances of this case.

(c) Is there a Serious Issue to be Tried Regarding the Alleged Unlawful Strike Activity

[38] The incidents of trespass on property, threats to employees and sub-contractors, physical obstruction and verbal intimidation that have occurred during the first week of the strike are not disputed. They are not alleged to have been the result of some misunderstanding that has since been worked out. The incident on July 27, 2020 at the Spadina Site involving the push and chest bump of a worker is conceded to have been unfortunate, but attributed to over-enthusiastic initial picketing that has, or will, settle down as the strike ripens.

[39] There is a serious issue to be tried where there are threats, violence, intimidation, and an obstruction of lawful entry and vehicular traffic. See for example, Ideal Railings, at paras. 42-45; and Vale, at paras. 23 and 55-60.

[40] In this case the unchallenged evidentiary record discloses examples of the picketers:

a. Obstructing and interfering with persons, including in particular the plaintiff's employees and vehicles, as well as third party subcontractors, customers and suppliers from accessing the Sites;

b. Trespassing on the Sites; and

c. Engaging in physical and verbal intimidation, assaults and threats of assault, violence and threats of violence, and harassment to individuals attempting to cross the picket lines.

[41] It is not a high burden on the plaintiff to establish a serious issue to be tried, and these unchallenged incidents are enough for the plaintiff to meet this merits threshold. The plaintiff also relies on an alleged unlawful “blockade.” That will be discussed in greater detail in the next section dealing with irreparable harm. There is enough support for the serious issue to be tried that the existence of a “blockade” is not necessary.

(d) Irreparable Harm

[42] The moving party must demonstrate that a refusal to grant an injunction will result in the reasonable likelihood of irreparable harm. Irreparable harm refers to the nature of the harm suffered, rather than its magnitude. It is harm for which the remedy of damages is inadequate to compensate. See RJR-MacDonald at 340-342 and Cargill Foods Toronto Ltd. v. Suppa-Magee, [1995] OJ No. 3203 (Gen. Div.), at para. 26.

[43] Damages are not an adequate remedy for deliberately tortious or criminal conduct. See Ideal Railings, at paras. 54-61; Vale, at paras. 31-32; and Brookfield Properties, at para. 57.

[44] The plaintiff acknowledges that in a lawful picket, some minor delay for the purposes of communicating the picketers’ grievances can be appropriate, provided that it is done in a lawful and peaceful manner. However, where the obstruction of lawful entry or exit creates a significant delay and is unrelated to any delay connected with legitimate communication or where there has been “a restriction on the free movement, liberty and security of individuals,” the test for an injunction, including the requirement for irreparable harm, has been held to have been established. See for example: Alumicor Limited. v. United Steel, Paper and Forestry, Rubber, Manufacturing, 2011 ONSC 1707, at para. 37; Ideal Railings, at paras. 54-61; Vale, at paras. 23, 28-29; and Brookfield Properties, at paras. 57-59.

[45] Delays of up to four hours in Alumicor and in Ideal Railings, by blocking vehicles from entering the premises (or causing them to leave) and delays of between 27 minutes and seven hours in Vale, were grounds upon which the court was satisfied of the potential for irreparable harm and an injunction was granted. See Alumicor; Ideal Railings at para. 21; and Vale, at para. 23.

[46] The defendants concede that the following activities that existed in Alumicor (at para. 16) supported the finding of irreparable harm:

a. a single shoving incident,

b. threats to drivers or employees attempting to access the premises to work or to bring supplies and equipment,

c. taking photographs of the persons entering or leaving the premises,

d. yelling and/or shouting obscenities and/or making threatening gestures at workers attempting to access the premises, and

e. excessive delays (including up to four hours) which caused vehicles to leave the premises.

[47] Similar events have occurred in this case.

[48] The evidence about delays and interruptions in this case does not amount to total blockades. However, the targeted blocking of access to the Sites at critical entry times for construction workers each weekday morning without any clear indication of when access will be granted appears to be designed to interfere with the normal arrival and commencement of construction work in the mornings. These access delays can affect work during more than just the few hours of picketing time each day if workers and sub-contractors are not prepared to wait around.

[49] While some work is continuing, these activities also said to be interfering with the plaintiff’s goodwill and an important business relationship with the property manager of all but one of the Sites. This property manager (Cromwell) has engaged the plaintiff on various projects in the past and the plaintiff hopes to get business from this property manager in the future.

[50] The direct evidence of this interference with the plaintiff’s ability to fulfill its contractual obligations is challenged by the defendants. First, they cite the alleged lack of credibility of Mr. Bankov. Second, they claim a lack of corroborating evidence from the property manager (Cromwell) about this, even though one of Cromwell’s on-site managers swore an affidavit about the activities that took place at one of the jobsites. I agree that Mr. Bankov’s evidence is weak and I do not rely on it exclusively on this point. However, “common-sense” does prevail where, as here, it can be inferred that threatened delays to multiple projects for one property manager (Cromwell) could lead that customer to look for another contractor for these or future projects. See Ideal Railings, at paras. 40 and 55-58.

[51] I find that the plaintiff has met its burden of demonstrating the reasonable likelihood that it will suffer irreparable harm. If the picketing activities that have been identified continue, there does not need to be a total blockade for me to find that the combined effect of the threats, intimidations and delays could cause irreparable harm. Furthermore, although not required to meet this burden, the common-sense inference is that the activities identified could also interfere with Bank-Strox’s ability to fulfill its obligations under its contracts at the Sites and also its prospects for future work if it is unable to complete these projects in a timely manner.

[52] I do not need to rely on the alleged health and safety concerns that the plaintiff has identified, and I make no findings in that regard.

(e) Balance of Convenience

[53] Picketing by striking employees is a constitutionally protected activity. The physical presence of picketing workers at a workplace during a labour dispute incorporates an expressive component. That expression has two purposes: (i) to communicate to the public information about the labour dispute; and (ii) to put social and economic pressure on the employer, its suppliers and its clients. See Pepsi-Cola Canada Beverages v. Retail, Wholesale and Department Store Union, 2002 SCC 8, [2002] 1 S.C.R. 156, at para. 27.

[54] While it is acknowledged that picketing may involve tortious activity, that activity is not expressly condoned by the courts. The ultimate goal is to protect lawful expression. In assessing the balance of convenience, the constitutionally protected right of striking employees to picket for lawful purposes (e.g. to communicate the fact of their dispute with their employer and to put economic and social pressure on the employer) must be weighed against the employer’s rights. See Cancoil Thermal, at para. 23; and Sobeys, at para. 44.

[55] Where the picketing goes beyond merely communication of information and instead extends to illegal conduct, the balance of convenience may favour the moving party. See Alumicor, at paras. 41-43; and Brookfield Properties, at paras. 53-54. The plaintiff relies upon the unlawful conduct of trespass and assault by the picketers to tip the balance of convenience in its favour.

[56] In Alumicor (at para. 33), the court found that the balance of convenience favoured the employer because of the absence of purposeful communication by the picketers about the purpose of the strike, which led to a finding that the purpose of the picketing was not “communication” but rather to block or delay access to the facilities.

[57] The objective under this part of the injunction test is to balance the Members’ constitutional right to engage in peaceful picketing (which carries with it an expectation that the employer might experience some inconvenience) with the employer’s right to carry on its business.

[58] This balancing of important rights on both sides must be done cautiously and respectfully. In this case, there is no evidence of any purposeful communication by the picketers about the reason for their strike and their objectives at the bargaining table. The pressure they seek to exert on the plaintiff through the daily attempts to prevent workers and sub-contractors from working at the Sites (on a rotating basis, without warning of which ones) through the use of physical and verbal threats, intimidation, and the strategic blocking of access during the weekday mornings tips the balance in favour of the plaintiff. A properly fashioned injunction can adequately balance the right to freedom of expression against the other harms suffered by the parties.

[59] The alleged lack of clean hands on the part of the plaintiff in respect of the activities at issue before me has not been established on the record and I do not find there to have been any conduct of the plaintiff that disentitles it to the injunction sought.

(f) Interim vs. Interlocutory Order and Terms

[60] The defendants withdrew their reliance on the notice requirements of ss. 102(5) and (6) of the CJA. They are no longer arguing that this injunction can only be granted on an interim basis, limited to four days in reliance upon that section. The defendants also confirmed that they were not seeking an adjournment of the injunction motion hearing to give them more time to respond. They were content to argue the motion based on what they considered to be the deficiencies in the plaintiff’s evidentiary record, and based on the notice that they received even though the service was technically less than seven clear days.

[61] The defendants propose, nonetheless, that any interlocutory injunction that is granted be time-limited, to impose a “cooling off” period, after which the employer could apply for an extension if the circumstances continue to warrant it. This is suggested to be appropriate given that we are in the early days of the strike and the conduct is not as extreme as in some of the other cases. The plaintiff argues that once the test has been met, if there is to be a change to the terms of the order at a later point, it would have to be made on the basis of an application by the Union to loosen some of the restrictions.

[62] I agree with the plaintiff. There is no principled time frame within which I could limit the injunction and I prefer for the limits to be built into the terms of the injunction, rather than its duration. I would allow for a come-back provision that would permit either side to seek to amend its terms, or to have it lifted entirely, if circumstances arise in the future to justify such.

[63] The defendants also argue that different restrictions should apply at different Sites because the allegedly unlawful activities did not occur at all Sites, or at least not to the same extent. The plaintiff counters that the Sites are all in Toronto and the picketers can easily move around. I agree. The injunction will apply to all of the Sites.

[64] The defendants further argue that there is no basis for limiting the number of picketers at each Site. The plaintiff is concerned that the picketers can call-in additional supporters (as was threatened on one occasion already) and that this could create chaos and the opportunity for future false claims by picketers. This rallying of additional support has not occurred as of yet and the number of picketers that have been at the Sites thus far is not excessive. I am not prepared to place a limit on the number of picketers based on the concerns raised, which are thus far only speculative.

[65] Courts have recognized that, even where an injunction is required to prevent harm to an employer, balancing the interests at stake justifies giving picketers an opportunity to persuade other employees, suppliers or others not to cross the picket line. See, for example: Bell Canada v. Kennedy et al, 2005 ONSC 22128 (Ont. S.C.) [which allowed for a 10 minute delay at the front of the line on exit, to a cumulative maximum of 80 minutes]; Ideal Railings [which followed Brookfield Properties and Industrial Hardwood Products and allowed for a five minute delay per vehicle at the front of the line and no more than 20 minutes in total]; and Ontario v. OPSEU et al. (19 March 1996), unreported March (Gen. Div.) [which allowed for a 10-minute delay].

[66] Based on the evidence in this case and the issues that have been identified by the workers, I find that it is appropriate to allow for a brief delay of vehicles attempting to enter the Sites, of no more than ten minutes per vehicle on the way into the Site and a vehicle that needs to enter and exit over the course of a day should only be delayed on that vehicle’s first entry of the day and not each time it comes in.

[67] There is insufficient evidence of conduct by Mr. Melo to warrant an injunction being made personally against him. See Century Engineering Co. v. Greto et al., [1961] O.R. 85 (H.C.), at 91.

Final Disposition, Costs and Implementation

[68] For the foregoing reasons, the plaintiff’s request for an interlocutory injunction is granted as against the Union and its Members, agents, servants, representatives or substitutes or anyone acting under their instructions or having knowledge of the injunction order. The request for an injunction against Mr. Melo personally is denied.

[69] The order arising from this decision should be tailored closely to the issues raised in the evidence and to go no further than is necessary to prevent a recurrence of the demonstrated harm (Industrial Hardwood Products, at para. 38). As to its specific terms, I offered in my endorsement on August 14, 2020 the following initial guidance based on the points argued and decided on this motion:

a. The injunction will apply to all six Sites.

b. The injunction will not limit the number of picketers at any given Site or in total.

c. The injunction will allow for a brief delay of vehicles attempting to enter the Sites for the purpose of performing work for Bank-Strox, of no more than ten minutes per vehicle on the way into the Site. A vehicle that needs to enter and exit over the course of a day should only be delayed on that vehicle’s first entry of the day and not each time it comes in.

d. The injunction will include a come-back provision that permits either side to bring a motion to seek to amend its terms, or to have it lifted entirely, if circumstances arise in the future to justify such.

[70] Counsel for the parties asked for the opportunity to work out the specific wording and terms of the order themselves, based on the guidance that has been provided in these reasons. That approach makes good sense and I have encouraged them to do so. If they are able to reach an agreed upon form of order, it may be provided to me for review. If they are unable to do so, they may request a chambers appointment before me to assist them in settling the order.

[71] The parties are in agreement that costs should be deferred because of other ongoing issues between them and have asked me not to decide costs for the time being. I am prepared to leave the issue of costs open for six months. Either party may, within that time frame, indicate that they would like me to make an award of costs. If such a request is made, I will determine a process for brief, in-writing, page-limited costs submissions to be made by both sides. If neither side makes a request for a determination of costs by the court by February 18, 2021, costs will be deemed to have been settled.

[72] Notwithstanding Rule 59.05, this endorsement is effective from the date it is made and is enforceable without any need for entry and filing. In accordance with Rules 77.07(6) and 1.04, no formal endorsement need be entered and filed unless an appeal or a motion for leave to appeal is brought to an appellate court. Any party to this endorsement may nonetheless submit a formal order for original signing, entry and filing when the court returns to regular operations.

Kimmel J. Date: August 18, 2020

Footnotes

[1] Some of the evidence proffered by Bank-Strox was objected to by the defendants as inadmissible hearsay evidence on this motion. While I have not sustained all of the objections, to avoid concerns about the sufficiency of the record upon which this decision is being made, I have attempted to avoid reference to or reliance upon the evidence objected to as I do not consider it material to my decision herein. As a result, some of the examples provided by Bank-Strox highlighted by LIUNA’s counsel have been removed from this summary chart.

[2] The specific paragraphs challenged which do not fall within the exceptions I have identified and that are offside of s. 102(4) are: Affidavit of Z. Nikolov sworn July 29, 2020, paras. 11 and 35 insofar as they purport to describe the reasons why his co-workers left the Sites; Affidavit of N. Uhumanure sworn July 28, 2020, para.16 insofar as it purports to explain the reasons why residents called Ubers or taxis and insofar as it purports to describe the experiences of his co-workers; Affidavit of J. Laurente sworn July 30, 2020, para. 6 insofar as it purports to describe why his colleagues went home or did not want to work; Affidavit of M. Bankov sworn July 30, 2020, paras. 17, 20, 41 and 45 insofar as they purport to describe events that he was advised of by others who have not attested to those events directly; Affidavit of M. Kania sworn July 30, 2020, paras. 4, 5 and 12, except to the extent that they provide a foundation for his decisions and actions regarding re-deployment of his workers to other jobsites; Affidavit of N. Rodrigues sworn July 29, 2020, paras. 4 and 13, except to the extent that it provides a foundation for the property manager’s actions based on the advice provided.