Ontario Public Service Employees Union v. Attorney General of Ontario

[Indexed as: O.P.S.E.U. v. Ontario (Attorney General)]

58 O.R. (3d) 577

[2002] O.J. No. 1094

Docket No. C37946

Court of Appeal for Ontario

MacPherson, Sharpe and Simmons JJ.A.

March 26, 2002

Charter of Rights and Freedoms -- Freedom of expression -- Labour relations -- Injunction restraining picketing outside courthouse infringed union members' freedom of expression but was justified under s. 1 of Charter -- Public access to courts must not be impeded -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

On his own motion, a Superior Court judge issued an injunction restraining picketing outside courthouses during a strike by court workers. The injunction also prohibited any activities whatsoever that were calculated to interfere with court operations. The union applied to set the order aside or to vary it. The application was dismissed and the union appealed.

Held, the appeal should be allowed in part.

The Canadian Charter of Rights and Freedoms applies to the judicial branch of government and, specifically, applies to an ex parte order restraining picketing at courthouses. A judicial order restraining picketing at a courthouse infringes the freedom of expression of union members which is protected by s. 2(b) of the Charter. The objective of the order in this case, ensuring unimpeded access to the courts, was pressing and substantial, and a rational connection existed between the order and the objective. Despite the lack of evidence of any actual attempt by the striking workers in this case to impede or deny access to the courts, the injunction, with one exception, minimally impaired freedom of expression. A picket line in a labour dispute amounts to a signal that members of the public are asked not to cross. Access to the courts must be unimpeded. Picketing at the entrances of courthouses in connection with a labour dispute between the government and its employees cannot interfere with this fundamental proposition. The injunction in this case was also proportional, with one exception to the objective of the order. The terms of injunctions should be closely tailored to the issues raised on the evidence. The paragraph of the injunction in this case prohibiting "any activities whatsoever" that were calculated to interfere with court operations was unnecessary and should be deleted from the order. Otherwise, the injunction was justified under s. 1 of the Charter.

APPEAL from an order dismissing an application to set aside or vary an injunction.

British Columbia Government Employees' Union v. British Columbia (Attorney General), 1988 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), folld R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103, 53 O.R. (2d) 719n, 14 O.A.C. 335, 26 D.L.R. (4th) 200, 65 N.R. 87, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, apld K Mart Canada Ltd. v. United Food and Commercial Workers, Local 1518 (1999), 1999 650 (SCC), 66 B.C.L.R. (3d) 211, 176 D.L.R. (4th) 607, 245 N.R. 1, [1999] 9 W.W.R. 161, 66 C.R.R. (2d) 205, 99 C.L.L.C. Â220-064 (S.C.C.); R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, distd Other cases referred to Attorney General v. OPSEU, Order dated March 29, 1996; Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, 9 B.C.L.R. (2d) 273, 33 D.L.R. (4th) 174, 71 N.R. 83, [1987] 1 W.W.R. 577, 25 C.R.R. 321, 38 C.C.L.T. 184, 87 C.L.L.C. 14,002 Statutes referred to Canadian Charter of Rights and Freedoms, s. 1

Linda Rothstein and Ian McGilp, for appellant. Robert E. Charney and Daniel Guttman, for respondent.

[1] BY THE COURT: -- The appellant Ontario Public Service Employees Union ("OPSEU") is the bargaining agent for 45,000 employees of the Government of Ontario. On March 13, 2002, OPSEU commenced a legal province-wide strike.

[2] OPSEU represents employees who work in the courts in Ontario. Some of these employees have lawfully withdrawn their services. Others are covered by the Essential Services Agreement and are required to work during the strike.

[3] On the morning of March 13, 2002, OPSEU commenced a picket outside the courthouse at 200 Frederick Street in the Regional Municipality of Kitchener-Waterloo. Later the same day, Justice Ronald Sills of the Superior Court, ex parte and on his own motion, issued the following order:

ON THE COURT'S OWN MOTION, ex parte, this Court orders that all persons having notice of this order are restrained and an injunction is hereby granted restraining them until further order from:

(a) gathering, congregating or picketing at the entrances to the law courts of the Ontario Court of Justice and the Superior Court of Justice in the Regional Municipality of Waterloo or within the precincts of the said courts; or

(b) from engaging in any activities whatsoever which are calculated to interfere with the operations of any court of justice in the said Region or to restrict or limit access of all persons to the courts and their precincts.

For greater certainty it is further ordered that this injunction shall extend to and include all those locations within the said Region where Courts of Justice are situate in buildings where other activities are also carried on, but any persons affected by this order may apply on 24 hours' notice in writing to the Local Registrar for directions with respect to such locations.

It is further ordered that any person affected by this order may apply to the Superior Court of Justice at Kitchener on 24 hours' notice in writing to the other party in this labour dispute for an order setting aside or varying this Order.

[4] On March 14, 2002, OPSEU applied to vary or set aside this order. Counsel for the Attorney General of Ontario opposed the application. Sills J. dismissed the application. In a six- page judgment released the same day, he placed substantial reliance on the decision of the Supreme Court of Canada in British Columbia Government Employees' Union v. British Columbia (Attorney General), 1988 3 (SCC), [1988] 2 S.C.R. 214, 53 D.L.R. (4th) 1 ("BCGEU"). In that case, the Chief Justice of the British Columbia Supreme Court, acting ex parte and on his own motion, issued an order restraining picketing at all courthouses in British Columbia during a province-wide public service strike. The Supreme Court of Canada upheld the Chief Justice's order. In the present case, Sills J.'s order is virtually identical to the order 14 years ago of the Chief Justice of the British Columbia Supreme Court.

[5] OPSEU appeals from Sills J.'s two orders. It seeks to set them aside. Alternatively, it seeks a variation of the order in the following form:

THIS COURT ORDERS that OPSEU and any person having notice of this Order shall not impede, obstruct or delay the access or egress of any person or vehicle into or from the law courts of the Ontario Court of Justice and the Superior Court of Justice in the Regional Municipality of Waterloo.

[6] There are several matters of legal analysis on which the parties agree. These can be set out in brief fashion.

[7] First, the Canadian Charter of Rights and Freedoms (the "Charter") applies to the judicial branch of government. Specifically, it applies to an ex parte court order restraining picketing at courthouses. Such an order, in the words of Dickson C.J.C. in BCGEU"must comply with the fundamental standards established by the Charter" (p. 244 S.C.R., p. 22 D.L.R.).

[8] Second, a judicial order restraining picketing at a courthouse infringes on the freedom of expression of the members of the union who wish to engage in picketing activity: see BCGEU, at pp. 243-46 S.C.R., pp. 22-23 D.L.R., and Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd., 1986 5 (SCC), [1986] 2 S.C.R. 573, 33 D.L.R. (4th) 174, at pp. 586-87 S.C.R., p. 186.

[9] Third, the judicial order restraining picketing at the courthouses in the Regional Municipality of Waterloo can be upheld only if it complies with s. 1 of the Charter which provides:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[10] Fourth, the basic framework for determining whether a law constitutes a reasonable limit on a Charter right is the analysis set out in R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103 at pp. 138-39, 26 D.L.R. (4th) 200 ("Oakes"), which we would summarize as follows in the context of the present appeal:

(1) Is the objective of the judicial order restraining picketing at courthouses pressing and substantial?

(2) Are the means chosen in the challenged judicial order

(a) rationally connected to the objective of the judicial order,

(b) designed to minimally impair the freedom of expression of the members of OPSEU, and

(c) proportional, in the sense that they strike an appropriate balance between the objective of the judicial order and the constraints the order imposes on the constitutional rights of the members of OPSEU?

[11] Fifth, the parties agree that Sills J.'s orders comply with the first branch of Oakes. The objective of those orders was to assure unimpeded access to the courts. The validity of that objective was affirmed by Dickson C.J.C. in BCGEU, at p. 248 S.C.R., p. 25 D.L.R.:

Assuring unimpeded access to the courts is plainly an objective "of sufficient importance to warrant overriding a constitutionally protected right or freedom" . . . and relates to a concern which is "pressing and substantial in a free and democratic society".

(Citations omitted)

[12] Sixth, with respect to the second branch of the Oakes test, the parties agree that there is a rational connection between a judicial order restraining picketing at courthouses and the objective of assuring unimpeded access to the courts.

[13] Against the backdrop of these points of agreement, which are substantial, we turn to a consideration of the issues on which OPSEU and the Attorney General are divided. Essentially, OPSEU contends that Sills J.'s orders do not comply with the minimal impairment and proportionality components of the second branch of the Oakes analysis.

[14] With respect to the minimal impairment branch, OPSEU submits that an absolute ban on all types of picketing at Ontario courthouse[s] fails the minimal impairment test for three reasons:

(a) Experience in Ontario demonstrates that a more limited and carefully tailored injunction is sufficient to ensure that access to the courts would not be impeded;

(b) The wording "picketing" embraces a wide variety of conduct not all of which must be enjoined to ensure unimpeded access to courts; and

(c) Not all picket lines have the "signalling effect" urging members of the public not to enter a courthouse.

[15] OPSEU relies on the fact that during an earlier strike in 1996, an order was made in the following terms, with no apparent problems of access to the courts:

1. THIS COURT ORDERS that the defendants and any persons having notice of this order shall not impede, obstruct or delay the access of any person or vehicle into or from the Courthouse located at 161 Elgin Street, Ottawa, Ontario.

See: Attorney General (Ontario) v. OPSEU, Order dated March 29, 1996.

[16] It is submitted that orders of this nature allowed striking workers to exercise their constitutional right to freedom of expression without any consequent interference with access to the courts.

[17] OPSEU contends that the nature of the picketing at issue in the present case is distinguishable from that in BCGEU. There is no evidence here of any attempt to impede or deny access to the courts. Indeed, the affidavit evidence filed on behalf of OPSEU indicates that union officials gave explicit directions to picketers that they were not to interfere with or impede access to the courts. In BCGEU, on the other hand, there was clear evidence of obstructive behaviour. Union officials expressed the hope that the public would honour the picket line by not crossing it. The union went so far as to issue "picket passes" to those members of the public deemed by the picketers to have valid reasons for crossing the line. It is argued that Dickson C.J.C.'s characterization of the picket line as a barrier to the courthouse must be read in light of this evidence.

[18] Furthermore, OPSEU contends that not all picketing represents a signal to the public not to cross the picket line, relying on statements by the Supreme Court of Canada in a recent decision on secondary picketing: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 ("Pepsi- Cola"). We are urged not to act on the unproven assumption that picketing itself represents a barrier to the courts, but rather to carefully assess and weigh the evidence as to the type of picketing and the message being conveyed, and to determine whether or not the actions of the striking workers actually obstruct or impede access to the courts.

[19] Finally, OPSEU contends that a total ban on picketing defeats the constitutional rights of its members and that, as less intrusive means are available to attain the objective of the order, it cannot be said that the benefits of the order outweigh its deleterious effects.

[20] In our view, the reasons of the Supreme Court of Canada in BCGEU preclude acceptance of the appellant's arguments. Dickson C.J.C.'s reasons, which are both strong and clear, establish that the decision in BCGEU was not limited to the facts of that case. Rather, the foundation of the decision was the unacceptable inconsistency between picketing at a courthouse in connection with a labour dispute and the pivotal role of courts in the administration of justice. A picket line in a labour dispute, said Dickson C.J.C., amounts to a signal that members of the public are asked not to cross. When that signal is given at the entrance to a courthouse, it represents an unacceptable interference with the public's fundamental right of access to justice. We would cite but a few passages from Dickson C.J.C.'s judgment to support this conclusion. He said, at p. 230 S.C.R., p. 12 D.L.R.:

I would adopt the following passage from the judgment of the British Columbia Court of Appeal (at p. 406):

We have no doubt that the right to access to the courts is under the rule of law one of the foundational pillars protecting the rights and freedoms of our citizens. It is the preservation of that right with which we are concerned in this case. Any action that interferes with such access by any person or groups of persons will rally the court's powers to ensure the citizen of his or her day in court. Here, the action causing interference happens to be picketing. As we have already indicated, interference from whatever source falls into the same category.

(Emphasis added)

[21] In the same vein, Dickson C.J.C. said, at p. 231 S.C.R., pp. 12 and 13 D.L.R.:

[B]oth courts below have found that the picketing would inevitably have had the effect of impeding and restricting access to the courts. There surely can be little doubt as to the correctness of that conclusion.

A picket line ipso facto impedes public access to justice. It interferes with such access and is intended to do so.

[22] The appellant urges this court to reconsider BCGEU in light of more recent decisions of the Supreme Court of Canada which, the appellant contends, underline the nexus between the activity of picketing and freedom of expression: see Pepsi- Cola, supra, and K Mart Canada Ltd. v. United Food and Commercial Workers, Local 1518 (1999), 1999 650 (SCC), 176 D.L.R. (4th) 607, 66 C.R.R. (2d) 205 (S.C.C.) ("KMart").

[23] Acknowledging the importance of these cases, and accepting that they are solicitous of the important right of employees to express their views through picketing activity during a lawful strike, in our view there is nothing in these cases to suggest that the analysis and conclusion in BCGEU are any less applicable in 2002 than in 1988. There is an important and obvious difference between the relationship in issue in cases like Pepsi-Cola and K Mart on the one hand and the relationship presented by BCGEU. Pepsi-Cola and K Mart dealt with the protection of commercial interests. BCGEU dealt with the protection of the fundamental right of access to the courts. As expressed by Dickson C.J.C. in BCGEU, at p. 232 S.C.R., p. 14 D.L.R.:

Picketing of a commercial enterprise in the context of an ordinary labour dispute is one thing. The picketing of a court-house is entirely another. A picket line both in intention and in effect, is a barrier. By picketing the court-houses of British Columbia, the appellant Union, in effect, set up a barricade which impeded access to the courts by litigants, lawyers, witnesses, and the public at large. It is not difficult to imagine the inevitable effects upon the administration of justice.

[24] There is nothing in the more recent decisions of the Supreme Court of Canada to suggest that the clear dichotomy articulated by Dickson C.J.C. has been eroded. Indeed, in K Mart, one of the decisions relied on by the appellant, Cory J. affirmed BCGEU in this fashion, at p. 628 D.L.R.:

[In BCGEU] . . . the Court found that picketing by the striking employees of the courthouse impeded public access to the courts and thus interfered with the rule of law, the very foundation of our justice system. It was again held that picketing fell within the ambit of freedom of expression; however, an injunction limiting the activity was considered reasonable because access to justice was of paramount importance.

[25] In summary, both the reasoning and the result in BCGEU are clear. Access to the courts, by litigants, counsel, jurors, witnesses, court staff and judges, must be unimpeded. The daily work of the courts, anchored in the rule of law, must proceed. Picketing at the entrances of courthouses in connection with a labour dispute between the government and its employees cannot interfere with this simple, and fundamental, proposition. Accordingly, Sills J.'s order dated March 13, 2002 is, with one exception which we will deal with shortly, a minimal impairment on the freedom of expression of the members of the appellant union.

[26] We note here that the circumstances in which it will be appropriate for a superior court judge to act on his or her own motion and on an ex parte basis to enjoin picketing are rare. There must be clear evidence that the public's right of access is being impeded and that there is no other recourse available to protect that fundamental right. Moreover, we hardly need add that we say nothing here about forms of expressive activity other than picketing that interferes with the public's right of access to the courts.

[27] It follows that Sills J.'s order also complies with the proportionality component of the second branch of the Oakes test. As expressed by Dickson C.J.C. in BCGEU, at p. 249 S.C.R., p. 26 D.L.R.:

While the injunction limited the s. 2(b) Charter rights of the members of the Union, that limitation was wholly proportional to the objective of the order, namely, to maintain access to the courts and to ensure that the courts remained in operation in order that the legal and Charter rights of all citizens of the province would be respected.

[28] Finally, OPSEU submits that, in any event, para. (b) of Sills J.'s order should be set aside. That part of the order is taken verbatim from the order made in BCGEU. In that case, there was evidence of the activities of a third party designed to discourage members of the public from entering the courthouse. Those activities would not be described as picketing and, accordingly, a further order was required to protect the public's right of access to the courts. In the present case, the only activity at issue is picketing and there is no evidence of any other acts of interference with the functioning of the courts.

[29] Mr. Charney, quite fairly and properly, did not resist deletion of para. (b) of Sills J.'s order. The terms of injunctions should be closely tailored to the issues raised on the evidence. As BCGEU demonstrates, such a term may well be required in certain circumstances. However, there is nothing in the record before us that would justify it here.

[30] In the result, the appeal is allowed with respect to para. (b) of Sills J.'s order. In all other respects, the appeal is dismissed. Neither party seeks costs of the appeal.

Appeal allowed in part.