Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693 et al.

[Indexed as: Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693]

52 O.R. (3d) 694

[2001] O.J. No. 28

Docket Nos.: C33787 and M25541

Court of Appeal for Ontario

Before: Austin, Goudge and MacPherson JJ.A.

Date: January 10, 2001*

Note: This judgment was recently brought to the attention of the editors.

Employment--Labour relations--Picketing--Interlocutory injunction--Access to employer's plant by replacement workers blocked by picketers daily until police arrived--Police refused employer's request to attend plant daily before obstruction started--Reasonable efforts by employer to obtain police assistance had failed--Condition precedent in s. 102(3) of Courts of Justice Act met--Interlocutory injunction properly granted--Order went further than necessary in limiting number of picketers to four at each entrance--Number of picketers is important aspect of collective expression in labour relations context--Term struck from order--Courts of Justice Act, R.S.O. 1990, c. C.43, s. 102(3).

Members of the defendant union were engaged in a lawful strike. The plaintiff employer hired replacement workers and used vans to take them to and from work. Picketers consistently stopped the vans from entering and leaving the plant until the police arrived. The employer's request that the police attend regularly each weekday at 8:00 a.m. and 5:00 p.m. to provide for orderly passage of the vans through the picket lines was refused due to finite police resources and other policing responsibilities. The police responded on each occasion after the picketers started blocking the vans. The employer brought an application for an interlocutory injunction. The motions judge held that the condition precedent in s. 102(3) of the Courts of Justice Act, that reasonable efforts to obtain police assistance to control the situation have been unsuccessful, had been met. The application was granted. The order prohibited the union from attempting to prevent vehicular access to the employer's premises. It also prohibited all picketing at the plant except for the purpose of communicating information to those wishing to receive it, and then only for a maximum of five minutes. Finally, it limited the number of pickets for that purpose to four at each plant entrance. The union appealed, arguing that where, as here, the police respond on each occasion and on arrival are able to provide proper entry to or exit from the plant, the precondition is not met.

Held, the appeal should be allowed in part.

Section 102(3) does not purport to assess the success of police assistance only once the police arrive. The section places an onus on an applicant to satisfy the court that the applicant has made reasonable efforts to obtain police assistance and that those efforts have not resulted in an acceptable degree of control in light of the factors set out in the section: the risks of property damage, personal injury or obstruction of lawful access to the premises. In a case like this one, involving not property damage or personal injury, but obstruction of lawful entry or exit, the relevant considerations include the degree of the obstruction, its duration on each occasion and the length of time the obstruction has occurred. The question posed by s. 102(3) is whether, in all the circumstances, reasonable efforts to obtain police assistance have failed to result in an acceptable degree of control of the situation. In this case, lawful access to the employer's premises was completely obstructed for significant periods of time over a significant number of days. The employer had demonstrated that its reasonable efforts to obtain police assistance had failed to result in an acceptable degree of control of the situation.

Except in one respect, the scope of the limitation imposed by the applications judge was not overly broad. In the circumstances, the order properly prohibited the obstruction of access to the plant and in support of that objective limited the time for the communicating of information to those wishing to receive it to a maximum of five minutes. However, it was not reasonable to limit to four the number of picketers communicating that information. Picketing is a vital and constitutionally sanctioned means of collective expression in modern labour relations. Picketing speaks not just to the issues in dispute, but to the solidarity of the employees involved. In this respect, the number of picketers is itself an important part of that expression. The problem in this case was not the number of picketers but the delay in the arrival of the police. Limiting the number of picketers went further than necessary to prevent a recurrence of the demonstrated obstruction of access. It unreasonably restricted an important aspect of the employees' right of expression. That term should be struck from the order.

APPEAL from an interlocutory injunction.

Mack (Canada) Inc. v. I.A.M.A.W. Lodge No. 2281 (1985), 33 A.C.W.S. (2d) 240 (Ont. H.C.J.), apld Other cases referred to British Columbia Government Employees' Union v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214, 31 B.C.L.R. (2d) 273, 71 Nfld. & P.E.I.R. 93, 53 D.L.R. (4th) 1, 87 N.R. 241, [1988] 6 W.W.R. 577, 50 C.R.R. 397n, 44 C.C.C. (3d) 289, 30 C.P.C. (2d) 221, 88 D.T.C. 14,047 (sub nom. B.C.G.E.U. (Re)); Texpack Ltd. v. Rowley, 1971 CanLII 1094 (ON CA), [1972] 2 O.R. 93, 24 D.L.R. (3d) 675, 71 C.L.L.C. 14,404 (C.A.) Statutes referred to Courts of Justice Act, R.S.O. 1990, c. C.43, s. 102 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 12.07 Authorities referred to Ontario, The Royal Commission Inquiry into Labour Disputes (Rand Report) (Don Mills, Ont.: CCH Canadian Ltd., 1998) Williston, W.B., and R.J. Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970)

Stephen Wahl and Paul Trudelle, for appellant. Richard J. Charney and Anne K. Gallop, for respondent.

The judgment of the court was delivered by

[1] GOUDGE J.A.: -- There is no doubt that labour disputes can be occasions of social conflict. This appeal raises for consideration the proper role of the interlocutory injunction in regulating the picketing that accompanies those disputes.

[2] This labour dispute began on November 8, 1999, when a lawful strike was commenced by the members of the International Wood and Allied Workers of Canada, Local 2693, employed by Industrial Hardwood Products (1996) Ltd. at its plant in Thunder Bay.

[3] The strikers set up a picket line at the entrance to the plant. For its part, the company hired replacement workers and used two company vans to take them to and from work.

[4] On November 25, 1999, the company sought an interlocutory injunction alleging as its major complaint that the company vans were being obstructed by picketers in attempting to enter the plant in the morning and exit it in the evening. The company's evidence was essentially confined to the activities on four different days between November 8 and November 18, 1999.

[5] McCartney J. dismissed the motion because, as he put it, he was not satisfied that the police were unable to properly handle the situation on those four days. Hence he concluded that the condition precedent set out in s. 102(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 had not been met.

[6] The strike and the accompanying picketing continued, and on February 4, 2000, the company brought a second motion for an interlocutory injunction. Based on the fresh material filed by the company, McCartney J. found that the situation had changed considerably. He held that the company had now satisfied the requirements of s. 102(3) and had otherwise met the test for the injunction sought. His order, issued on February 16, 2000, prohibits the appellants and those with notice of the order from preventing or attempting to prevent vehicular access to the respondent's premises. It also prohibits all picketing at the plant save for the purpose of communicating information to those wishing to receive it and then only for a maximum of five minutes. Finally, it limits the number of pickets for that purpose to four at each plant entrance.

[7] The defendants appeal from this order. They raise six arguments. Of these the primary challenge is to the finding below that the requirements of s. 102(3) were met. For the reasons that follow, I have concluded that except in respect of the term of the order limiting numbers, none of the arguments raised by the appellants can succeed.

The S. 102(3) Argument

[8] In general terms, s. 102(3) of the Courts of Justice Act requires that before an injunction is granted in a labour dispute, the court must be satisfied that reasonable efforts to obtain police assistance to control the situation have been unsuccessful. The section in which it appears sets out the legislative code for granting injunctions in labour disputes. Section 102 reads as follows:

"labour dispute" defined

102.(1) In this section, "labour dispute" means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.

Notice

(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice.

Steps before injunction proceeding

(3) In a motion or proceeding for an injunction to restrain a person from an act in connection with a labour dispute, the court must 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.

Evidence

(4) Subject to subsection (8), 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, but any party may by notice to the party filing such affidavit, and payment of the proper attendance money, require the attendance of the deponent to be cross-examined at the hearing.

Interim injunction

(5) An interim injunction to restrain a person from an act in connection with a labour dispute may be granted for a period of not longer than four days.

Notice

(6) Subject to subsection (8), at least two days notice of a motion for an interim injunction to restrain a person from any act in connection with a labour dispute shall be given to the responding party and to any other person affected thereby but not named in the notice of motion.

Idem

(7) Notice required by subsection (6) to persons other than the responding party may be given,

(a) where such persons are members of a labour organization, by personal service on an officer or agent of the labour organization; and

(b) where such persons are not members of a labour organization, by posting the notice in a conspicuous place at the location of the activity sought to be restrained where it can be read by any persons affected,

and service and posting under this subsection shall be deemed to be sufficient notice to all such persons.

Interim injunction without notice

(8) Where notice as required by subsection (6) is not given, the court may grant an interim injunction where,

(a) the case is otherwise a proper one for the granting of an interim injunction;

(b) notice as required by subsection (6) could not be given because the delay necessary to do so would result in irreparable damage or injury, a breach of the peace or an interruption in an essential public service;

(c) reasonable notification, by telephone or otherwise, has been given to the persons to be affected or, where any of such persons are members of a labour organization, to an officer of that labour organization or to the person authorized under section 89 of the Labour Relations Act to accept service of process under that Act on behalf of that labour organization or trade union, or where it is shown that such notice could not have been given; and

(d) proof of all material facts for the purpose of clauses (a), (b) and (c) is established by oral evidence.

Misrepresentation as contempt of court

(9) The misrepresentation of any fact or the withholding of any qualifying relevant matter, directly or indirectly, in a proceeding for an injunction under this section, constitutes a contempt of court.

Appeal

(10) An appeal from an order under this section lies to the Court of Appeal without leave.

[9] The material before McCartney J. on February 4, 2000 indicated that just prior to the strike, and in accordance with their normal proactive practice in pending labour disputes, the Thunder Bay police met with the union and the company. The purpose was to inform both of their responsibilities relative to lawful and unlawful picketing. The handout prepared by the Thunder Bay police for such meetings made clear that picketers may not lawfully obstruct the rights of entrance or exit from private property.

[10] The drivers of the two company vans deposed that from the start of the strike, every weekday morning at about 8:00 a.m. they attempted to enter the company's premises carrying replacement workers. On each occasion they were physically obstructed by picketers including the named defendants. The interference continued until the police arrived to escort the vans through the picket line. The same occurred when they attempted to exit at about 5:00 p.m. The number of picketers varied, but was clearly sufficient to prevent passage through the picket line until the police arrived. The delay ranged from a few minutes to nearly an hour during which the vans were stopped and harassed by picketers walking back and forth in front of them.

[11] On December 1, 1999, the company's solicitors wrote to the Thunder Bay Police Department requesting that the police attend regularly each weekday at 8:00 a.m. and 5:00 p.m. to provide for orderly passage through the picket line. Despite this request, from December 3 on, the police did not attend in advance, but only responded to calls for assistance once the vehicles were blocked from entering or exiting the company premises.

[12] The evidence from Inspector Gillies of the Thunder Bay Police Department was that requests for police assistance were made when obstruction of entry and exit occurred, but finite police resources and other policing responsibilities meant that these calls were given a low priority. Immediate responses could not be guaranteed and, indeed, those responses might be delayed by other policing priorities.

[13] In these circumstances, McCartney J. found that the requirements of s. 102(3) of the Act were met. I agree.

[14] Two considerations provide the backdrop for the proper interpretation of s. 102(3). First, there can be no doubt about the vital role that picketing plays in labour disputes. It provides striking workers with the collective opportunity to seek to persuade others of the rightness of their cause. It allows them to express through collective action their solidarity in pursuit of that cause. And it provides an important outlet for collective energy in what is often a charged atmosphere. In British Columbia Government Employees' Union v. British Columbia (Attorney General), 1988 CanLII 3 (SCC), [1988] 2 S.C.R. 214 at p. 230, 53 D.L.R. (4th) 1, Chief Justice Dickson said this:

Picketing and its Effects

Picketing is a crucial form of collective action in the arena of labour relations. A picket line is designed to publicize the labour dispute in which the striking workers are embroiled and to mount a show of solidarity of the workers to their goal. It is an essential component of a labour relations regime founded on the right to bargain collectively and to take collective action. It represents a highly important and now constitutionally recognized form of expression in all contemporary labour disputes. All of that is beyond dispute. In Harrison v. Carswell, 1975 CanLII 160 (SCC), [1976] 2 S.C.R. 200, a majority of this Court stated at p. 219:

Society has long since acknowledged that a public interest is served by permitting union members to bring economic pressure to bear upon their respective employers through peaceful picketing, but the right has been exercisable in some locations and not in others . . .

[15] Second, s. 102 of the Courts of Justice Act reflects the understanding of the Legislature that regulation of picketing in a labour dispute requires unique attention. It must be done with care, balance and sophistication. This section provides the code for granting injunctions in labour disputes. It was first enacted in response to the Royal Commission Inquiry into Labour Disputes by the Honourable Ivan Rand and has remained essentially unchanged. It set up significant new requirements that had to be met before the court could be called on to regulate a labour dispute with injunctive relief. One of these requirements, the predecessor to s. 102(3), reflected the view of Commissioner Rand that "in all cases adequate police assistance must be shown to have been unavailable." [See Note 1 at end of document]

[16] The policy foundation for this requirement is clear. 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.

[17] Consistent with this approach, this court said in Texpack Ltd. v. Rowley, 1971 CanLII 1094 (ON CA), [1972] 2 O.R. 93, 24 D.L.R. (3d) 675 (C.A.) that the predecessor to s. 102(3) is a jurisdictional pre-condition to the granting of an injunction in a labour dispute.

[18] How then should the court determine whether the pre-condition set up by s. 102(3) has been met, particularly in a case like this where there is little or no evidence of property damage or personal injury, but where each day the picketers obstruct lawful entry until the police arrive?

[19] The appellants argue that where, as in this case, the police respond on each occasion and on arrival are able to provide proper entry to or exit from the plant, the pre-condition is not met. They argue that police assistance has not failed to prevent obstruction of lawful entry or exit.

[20] I do not agree. The section does not purport to assess the success of police assistance in preventing obstruction of lawful entry only once the police arrive. This would require the insertion into the subsection of the words "once the police arrive" after the word "prevent". Moreover, the Legislature surely did not contemplate that day after day a company could have access to its premises blocked until whenever the police arrive without being able at some point to resort to the court. The interpretation urged by the appellants would implicitly sanction an indefinite breach of the law. I do not think the Legislature intended this.

[21] On the other hand, s. 102(3) must be interpreted with a realistic understanding of the role of picketing in a labour dispute. The number of picketers is an important expression of solidarity in the taking of collective job action. Pending police assistance, there may well be some inconveniencing or impeding of those seeking to pass through the picket line. The police response to requests for assistance will not always be immediate given their other policing responsibilities. The first failure of the police to respond instantaneously to a request for help does not necessitate the conclusion that police assistance has failed and that therefore the court can be resorted to. Absent questions of property damage or personal injury, a robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute before the court will conclude that police assistance has failed, and that it has jurisdiction to intervene with injunctive relief.

[22] In my view, the essence of the pre-condition set up by s. 102(3) was captured by Osborne J. (as he then was) in Mack (Canada) Inc. v. I.A.M.A.W. Lodge No. 2281 (1985), 33 A.C.W.S. (2d) 240 (Ont. H.C.J.). As he said there, the section places an onus on the applicant to satisfy the court that the applicant has made reasonable efforts to obtain police assistance and that those efforts have not resulted in an acceptable degree of control in light of the factors set out in the section: the risks of property damage, personal injury or obstruction of lawful access to the premises.

[23] In a case like this one, involving not property damage or personal injury, but obstruction of lawful entry or exit, the relevant considerations will include the degree of the obstruction, its duration on each occasion and how many days it has gone on. The question posed by s. 102(3) is whether in all the circumstances reasonable efforts to obtain police assistance have failed to result in an acceptable degree of control of the situation.

[24] On the facts before him on February 4, 2000, McCartney J. found that the respondent had succeeded in demonstrating that the pre-condition set out in s. 102(3) had been met. In my view he was correct in doing so. Reasonable efforts to obtain police assistance had failed to result in an acceptable degree of control.

[25] The strike had been on for almost three months. The picket line was manned each day by a significant number of striking workers. While the picketing was commendably non-violent, the picketers consistently stopped the company vans from entering the plant at 8:00 a.m. and exiting at 5:00 p.m. until the police arrived. The delays ranged from a few minutes to nearly an hour. Often the delays were in the range of half-an-hour, considerably longer than reasonably necessary for the picketers to effectively communicate their position to the occupants of the vans. The company had unsuccessfully requested the police to attend regularly at 8:00 a.m. and 5:00 p.m. The police position was that they could not guarantee immediate assistance given their other responsibilities and indeed could give the company's calls for assistance only a low priority.

[26] After almost three months, this pattern of daily picketing was clearly established. So too was the police response that could be expected, despite the company's reasonable efforts to obtain their assistance. The result was complete obstruction of lawful access for significant periods of time over a significant number of days. Hence, I conclude that in the light of the factors set out in s. 102(3) the company has demonstrated that its reasonable efforts to obtain police assistance have failed to result in an acceptable degree of control of the situation.

[27] This ground of appeal therefore cannot succeed.

The Other Arguments

[28] The appellants raise a number of additional arguments which can be dealt with more briefly.

[29] First, they argue that the order for an injunction was improperly made because this proceeding is constituted as an action against representative defendants and requires a representation order to proceed. No such order was in existence on February 16, 2000 when the injunction was granted, although one was obtained on consent on July 12, 2000.

[30] In my view, this argument fails. Rule 12.07, [Rules of Civil Procedure, R.R.O. 1990, Reg. 194] was introduced in its present form in 1993 in order to restore the former law for proceedings against representative defendants. The proper practice under that former law was clearly set out in Williston and Rolls, The Law of Civil Procedure (Toronto: Butterworths, 1970): where an action is brought against members of a trade union for an injunction and damages in a picketing case, representative defendants are named. Interlocutory injunction proceedings can then be taken, following which, if the action for damages is to be proceeded with to trial, a representation order will be sought.

[31] In my view, this is the practice contemplated by rule 12.07. It recognizes that the timeline that is often required for injunctive relief would not readily accommodate the obtaining of a representation order. It also recognizes the fact that the original justification for a representation order was to ensure that the union had a trust fund that could be resorted to in satisfaction of a claim for damages. Hence a representation order was not needed prior to seeking an injunction.

[32] Second, the appellants argue that McCartney J. made no finding of unlawful conduct on the part of the individually named defendants. I do not agree. There was clear evidence before McCartney J. of unlawful obstruction by the named defendants and a finding to that effect is implicit in the order that he made.

[33] Third, the appellants submit that McCartney J. had before him hearsay evidence contrary to s. 102(4) of the Courts of Justice Act. This argument too must fail. There was ample direct evidence to provide the basis for McCartney J.'s findings and he was explicitly aware of the requirement to abjure hearsay evidence in injunction proceedings in a labour dispute.

[34] Fourth, the appellants contest the findings of irreparable harm and balance of convenience made by the motions judge. Again, I do not agree. It was open to McCartney J. to find that if an injunction were not granted the respondent would suffer irreparable harm in lost business that might never be regained together with the continued unlawful obstruction of access to their property. Similarly, it was proper for him to find that the balance of convenience favoured the respondent in weighing some limitation on the appellants' right to picket against the continuing unlawful obstruction being suffered by the respondent.

[35] Finally, the appellants argue that the scope of the prohibition imposed by McCartney J. is overly broad.

[36] Except in one respect, I disagree. Given the facts here, the order properly prohibits the obstruction of access to the plant and, in support of that objective, it limits the time for the communicating of information to those wishing to receive it to a maximum of five minutes. However, in the circumstances of this case, I do not think it reasonable to limit to four the number of picketers communicating that information.

[37] In this context, it must be remembered that picketing is a vital and constitutionally sanctioned means of collective expression in modern labour relations. Picketing speaks not just to the issues in dispute, but to the solidarity of the employees involved. In this respect, the number of picketers is itself an important part of that expression.

[38] In my view, it is important that these considerations inform the structuring of an injunction in a labour dispute. While the specific terms of such an order are for the issuing judge, they ought generally to go no further than necessary to prevent a recurrence of the demonstrated harm.

[39] In this case, the issue was the obstruction of access to the respondent's premises rather than personal injury or property damage. Moreover, once the police arrived, the picketers, regardless of their numbers, complied with the requests of the police to provide access. The problem here was not the number of picketers but the delay in the arrival of the police. In these circumstances, limiting the number of picketers goes further than necessary to prevent a recurrence of the demonstrated obstruction of access. It unreasonably restricts an important aspect of the employees' right of expression. I would therefore strike this term from the order.

[40] Having done so, it need hardly be said that if there is non-compliance with this order as amended in the future, then, depending on the nature of that non-compliance, it may well warrant a strict numerical limit on or even a complete prohibition of information picketing.

[41] In the result, save as to the term limiting the number of picketers, the appeal must be dismissed. Given the respondent's success on the major issue, it is entitled to its costs of the appeal.

Appeal allowed in part.

Notes

Note 1: Rand Report, p. 37.