ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 881/13
DATE: 2013-02-26

BETWEEN:

SOBEYS INC.

Plaintiff

– and –

UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175, JESSE WATKINS, DARRYL WATKINS, KOREY KIRBY, JOE RAULINO, RON WARD, KINGSLEY PREMPEH, ORAL MANROE, EVON BLACKSTOCK, DARREN KING, INDERJIT GORAYA, DEREK LAWSON, ROD DOYLE, TOM MARSH and OTHER PRESENTLY UNIDENTIFIED PICKETERS

Defendants

Stephen F. Gleave and Allyson M. Fischer, Counsel for the Plaintiff

Denis Ellickson and Aleisha Stevens, Counsel for the Defendants

HEARD: February 15, 2013

GRAY J.

[1] On February 15, 2013, I heard a motion for an interlocutory injunction to restrain picketing activities arising out of a lawful strike. On that date, I granted an injunction subject to certain terms, for brief oral reasons delivered. I undertook to provide more complete reasons in due course. These are those reasons.

Background

[2] The plaintiff is a large retailer of food products, and has, as part of its operations, a number of warehouses. Those warehouses are in Milton, Whitby and Vaughan. It also has corporate offices and many retail outlets.

[3] The defendant, United Food and Commercial Workers Canada, Local 175 (“UFCW”) has bargaining rights for employees at the warehouse in Milton.

[4] The UFCW, and the employees at the warehouse in Milton, commenced a legal strike on February 11, 2013. Picketing commenced almost immediately, at the warehouse in Milton, and at the warehouse in Whitby.

[5] The UFCW does not have bargaining rights for the employees at Whitby and Vaughan. The Canadian Auto Workers has bargaining rights at Whitby, and the Vaughan warehouse is not unionized.

[6] With one relatively minor exception, the picketing has been peaceful, in the sense that there has been no violence. However, the effect of the picketing has been to block entry to and exit from the premises. The blockade has been effective, and has resulted in delays from 90 minutes to up to 8 hours in some cases. In essence, those warehouses became almost non-operational.

[7] Many of the goods sold by the plaintiff are perishable, and significant delays for any lengthy period can be quite serious.

[8] The plaintiff had discussions with the relevant police forces prior to the commencement of the strike, and after the picketing started the police were asked for assistance in getting people into and out of the plaintiff’s property. As is often the case, the police declined to provide any assistance, and took the position that as long as the picketing was peaceful the police would not interfere.

[9] In affidavit material filed by the defendants, it was asserted that the bargaining position of the plaintiff was unconscionable, and amounted to bad faith. It was asserted that a bad faith bargaining complaint would be filed at the Ontario Labour Relations Board. In the affidavit material, it was asserted that the picketing has been lawful and peaceful. Picketing has been orderly, respectful and polite. There has been no damage to property. All picketing activity has occurred on public property.

[10] The defendants’ affidavit material asserted that the picketers are communicating matters arising from the collective bargaining process and, from the union’s perspective, Sobeys’ unfair treatment of its employees. Picketers are communicating the issues to individuals gaining access to and egress from the Milton and Whitby warehouses. It is asserted that picketers communicate their concerns about their working conditions to drivers who are willing to listen.

Submissions

[11] While the plaintiff, in its motion materials, requested an order requiring access to its premises with no delay whatsoever, by the time the matter was argued before me the plaintiff had narrowed its request considerably. In the final analysis, the plaintiff requested an order prohibiting any delay in accessing its premises, with a number of significant exceptions. The plaintiff was willing to accept delays in entry to and exit from its Milton warehouse, where the strike was ongoing, and at its Whitby and Vaughan warehouses, even though no legal strike was occurring there. Delays were proposed ranging from 15 minutes to one minute (subject to overall maximum delays for vehicles in a line-up) depending on the location, purpose, and time of entry and exit, and no delays for emergency vehicles, fuel trucks and security personnel.

[12] Counsel for the plaintiff submitted that the tests for granting an interlocutory injunction had been met. It was submitted that the plaintiff had a strong prima facie case; it would suffer irreparable harm if the injunction were not granted; and the balance of convenience favoured the plaintiff.

[13] Counsel submitted that it was particularly appropriate that injunctive relief be granted since the plaintiff had reasonably limited the relief sought to what it required in order to maintain its business operations, while recognizing the legitimate rights of the picketers to communicate information.

[14] Counsel for the defendants acknowledged that the plaintiff was entitled to access its premises, but submitted that the relief requested by the plaintiff, even as restricted, was too broad.

[15] Counsel submitted that picketing is a fundamental right that flows from the constitutional freedoms of expression and association. Any limitation on that right must be very narrow.

[16] In the context of a lawful strike, the employees have a constitutional right to express their views through picketing, and to communicate information about the issues to those who wish to cross the picket line. The right to communicate information would be meaningless if the picketers were unable to have an opportunity to communicate their message. Thus, it is reasonable to allow some delay in getting access so that the message can be adequately communicated.

[17] Counsel submitted that the picketing here has been peaceful, respectful and polite. The only complaint is that there has been delay in getting access to the property. As submitted, the delay is reasonable in order that the picketers’ message can be communicated.

[18] Counsel submitted that a reasonable delay in these circumstances should be considerably longer than the delays proposed by the plaintiff. It was submitted that while the delays in the first day or two of the strike were perhaps unduly long, by the time the motion for the injunction was heard, they were considerably shorter. It was submitted that the plaintiff had not demonstrated that the delays were such that the plaintiff could not reasonably carry on its business.

[19] In the final analysis, counsel for the defendants submitted that the motion for an injunction should be dismissed.

Analysis

[20] It is now clear that peaceful picketing is a form of expression, and is constitutionally protected: see United Food and Commercial Workers, Local 1518 (U.F.C.W.) v. Kmart Canada Ltd., 1999 650 (SCC), [1999] S.C.J. No. 44; and Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] S.C.J. No. 7. However, as a practical matter it is also clear that in the context of a lawful strike, picketing has a considerably broader objective than expression.

[21] It has been noted more than once that a strike is not a tea party: see Pepsi-Cola, supra, at para. 90; and A.L. Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., 1959 41 (SCC), [1959] S.C.R. 271, at p. 276. A strike is the culmination of a failed negotiation. After a failed negotiation, emotions are often high. What ensues is an economic struggle. At the outset, each side believes it has to win the strike. From the employer’s perspective, it needs to carry on business and demonstrate that the strike is ineffective. From the union’s perspective, it must try to cause as much disruption to the employer’s business as possible. Each side hopes to eventually force concessions that will result in a more favourable agreement.

[22] The employer is perfectly entitled to continue to operate its business during a strike, and to hire replacement workers if it sees fit. As noted in the Report of the Task Force on Labour Relations (Government of Canada, 1968), at p. 176:

As noted elsewhere, the employer’s economic sanction equivalent to the union’s right to strike rarely is the lockout: it is his ability to take a strike. Much of what follows in this section, therefore, relates to the strike. However, it is important to note that the employer’s capacity to take a strike depends largely on his right to stockpile goods in advance of a strike and to use other employees and replacements to perform work normally done by strikers. Together with the lockout, these possibilities constitute the employer’s quid pro quo for the workers’ right to strike; this is as it should be, in our view.

[23] If the employer exercises its right to carry on business, and hire replacement workers in order to do so, the union will undoubtedly do what it can to prevent this from happening. Obviously, if the employer is able to carry on business without disruption, any strike will be far less effective.

[24] A picket line that is merely expressive, without more, will do little to cause disruption to the employer’s business. It is not surprising, therefore, that picketers were attempting to delay people who wished to cross the picket line.

[25] Sometimes picketing is accompanied by violence. However, most unions now understand that violence is unnecessary, and indeed counterproductive. While police are usually reluctant to intervene during a strike, they will intervene if there is violence. However, they will likely not intervene if the picketing is peaceful.

[26] Peaceful picketing can accomplish the objective of causing delay just as effectively as violent picketing. All that is required is that people stand in front of vehicles seeking entry or exit. This is just as effective as putting up a fence.

[27] At one time, some courts were unwilling to tolerate any delay. For example, in Canada (Attorney General) v. Gillehan, [1991] O.J. No. 2617 (Gen. Div.), Montgomery J. stated:

It is clear that the purpose and scope of peaceful picketing is limited to an attempt to communicate by persuasion to members of the public. It does not allow any vehicle to be stopped for a moment. It does not allow the interference with any person being stopped or held up.

[28] This perspective still prevails in some quarters: see Telus Communications Inc. v. Telecommunications Workers Union (2005), 2005 BCSC 1162, 48 B.C.L.R. (4th) 161 (B.C.S.C.).

[29] Some courts, on the other hand, were unwilling to grant injunctive relief even in the case of delays of up to one hour, accompanied by violence, threats and intimidation, on the ground that the employer was unable to show financial loss: see Trailmobile Canada Ltd. v. Merrill, [1983] O.J. No. 1123 (H.C.J.).

[30] In my view, both approaches are no longer sustainable.

[31] More recently, some courts have concluded that some inconvenience to the employer is permissible. In Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693 et al (2001), 2001 24071 (ON CA), 52 O.R. (3d) 694 (C.A.), Goudge J.A. stated, at para. 21:

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.

I will return to this concept in a moment.

[32] The usual tests for obtaining an interlocutory injunction are discussed in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] S.C.J. No. 17. In the usual case, the plaintiff must establish the following:

(a) there is a serious issue to be tried;

(b) the plaintiff will suffer irreparable harm if the injunction is not granted;

(c) the balance of convenience favours the plaintiff.

[33] In the context of a picketing injunction, there are three factors that serve as refinements to these tests. They are:

(a) since, as a practical matter, the interlocutory motion will finally resolve the matter, the plaintiff must show that it has a strong prima facie case, instead of a serious question to be tried: see RJR MacDonald, at para. 51;

(b) because the issue involves access to property, the plaintiff will more easily be able to demonstrate irreparable harm;

(c) the plaintiff must comply with s. 102(3) of the Courts of Justice Act, and must demonstrate 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.

[34] As to the latter issue, in the case of peaceful picketing where all that is occurring is physical blockading of vehicles and people, the plaintiff will have little difficulty, as here, in demonstrating that reasonable efforts to obtain police assistance have been unsuccessful. As discussed earlier, in the case of peaceful picketing the police are invariably unwilling to become involved. After considerable criticism in former years, the police now regard themselves as being neutral. Except in the case of personal injury or property damage, the police are unwilling to assist. In this case, the police were asked to assist and they declined. It is not in dispute, therefore, that the requisites of s. 102(3) of the Act have been satisfied.

[35] As to irreparable harm, as stated in RJR MacDonald, at para. 59, “’irreparable’ refers to the nature of the harm suffered rather than its magnitude.” In this case, the harm suffered is a deprivation of access to property. In such a case, injunctive relief is the preferred remedy. As stated by Sharpe J.A. in his text, Injunctions and Specific Performance (Canada Law Book, loose leaf edition), at § 4.10:

Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass. It is also the case where the plaintiff’s cause of action lies in nuisance, although somewhat less categorically. The discretion in this area has crystallized to the point that, in practical terms, the conventional primacy of common law damages over equitable relief is reversed. Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.

[36] At § 4.20, the author states:

The reason for the primacy of injunctive relief is that an injunction more accurately reflects the substantive definition of property than does a damages award. It is the very essence of the concept of property that the owner should not be deprived without consent. An injunction brings to bear coercive powers to vindicate that right.

[37] At § 4.60, the author states, “In nuisance cases, once the plaintiff has made out a substantive right, the ordinary remedy is an injunction.”

[38] Picketing usually occurs on public streets and sidewalks, and accordingly there is usually no trespass involved. However, a deprivation of access to property is a nuisance, and injunctive relief is the normal remedy. Accordingly, in the case of deprivation of access to property, the plaintiff in a picketing situation will usually have little difficulty demonstrating irreparable harm.

[39] However, in the context of a lawful strike, it is not enough to say that the employer has the right to access its property and thus must be granted an injunction to prohibit any delay in accessing the property. To take that approach, as some courts have done, would inadequately take account of the dynamics of a strike.

[40] I reviewed those dynamics earlier. What is on foot is an economic struggle. To permit the employer unfettered access to its property, without any delay, would swing the pendulum too far in one direction. However, to permit delays that are extreme would swing the pendulum too far in the other direction. In my view, while the employer must be permitted access to its property, and to carry on business if it can, it is not entitled to conduct its business with no inconvenience. As noted by Goudge J.A. in Industrial Hardwood, supra, “A robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute”. In my view, that reflects the appropriate balance.

[41] Some have sought to support a measure of delay in accessing the employer’s property as a corollary of the constitutional right to convey information through picketing. In order to convey information adequately, so the argument goes, the person who wishes to convey that information must have an opportunity to do so. Thus, a reasonable amount of delay must be allowed so that the message can be communicated. Indeed, that was effectively the argument made before me by counsel for the defendants.

[42] I do not accept that argument. In my view, it runs headlong into the proposition that freedom of expression does not require anyone to listen. As noted by the late Archie Campbell J. in Trieger at al v. Canadian Broadcasting Corp. et al (1988), 1988 4568 (ON SC), 66 O.R. (2d) 273 (H.C.J.), at p. 282, “As to free speech, the right to speak does not necessarily carry with it the right to make someone else listen or the right to make someone else carry one’s own message to the public.” In Canada Post Corp. v. Canadian Union of Postal Workers (CUPW) (1991), 1991 8320 (ON SC), 84 D.L.R. (4th) 150 (Ont. Gen. Div.), Montgomery J. quoted with approval the statement of Douglas J. in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), at p. 307, “While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it.”

[43] In my view, it is highly unlikely that those who are determined to cross a picket line have any interest in hearing the union’s message. Thus, any attempt to constitutionalize the right to delay or disrupt people seeking access to property in an labour dispute is highly problematic. However, in my view, it can be accommodated through the normal discretion the Court has in formulating an appropriate remedy.

[44] It is beyond dispute that an injunction is a discretionary remedy. The appropriate form of relief in any particular case will depend on the circumstances of the case. No doubt, if a homeowner is blockaded from reaching his or her own home, an injunction requiring access without delay would be quickly granted. However, a strike is not analogous to a homeowner seeking access to his or her home. As discussed earlier, a strike is the end result of a failed negotiation, and is an economic struggle. The Court must be sensitive to the interests of both parties in formulating an appropriate remedial order.

[45] Apart from any other discretionary considerations, a court of equity may insist that the party who seeks the assistance of the Court must live with terms of receiving such assistance that are just in the circumstances. As stated by Riddell J. in Richards v. Collins (1912), 1912 1305 (ON SC), 27 O.L.R. 390, at p. 398:

It is a well-recognised principle of equity that “he who seeks equity must do equity.” In many instances this contains a pun on the word “equity” and means nothing more than that, “he who seeks the assistance of a Court of Equity must in the matter in which he so asks assistance do what is just as a term of receiving such assistance.” “Equity means “Chancery” in one instance and “right” or “fair dealing” in the other.

[46] In the context of a strike, this simply means that the employer who seeks access to its property may be required, as a condition of securing the assistance of a court of equity, to live with a certain amount of inconvenience. In my view, this is a more logical way for the Court to rationalize the accommodation of some inconvenience as a corollary of the right to picket, as referred to by Goudge J.A. in Industrial Hardwood, than to try to view it as encompassed within the constitutional right of expression.

[47] That is not to say that delay can be accommodated in every case. There will be cases where the nature of the employer’s business, and/or the sheer volume of traffic will not accommodate any delay: see, for example, Ontario Power Generation Inc. v. Society of Energy Professionals, [2005] O.J. No. 5817 (S.C.J.). As another example, to permit any delay where 18,000 people are attempting to attend a hockey game would not be tolerated, since mass disruption would otherwise occur: see Ogden Entertainment Services v. United Steelworkers of America, Local 440 (1998), 1998 1441 (ON CA), 38 O.R. (3d) 448 (C.A.).

[48] Needless to say, the discretion of the Court to allow some delay is unlikely to be exercised in the picketers’ favour if there is non-observance of an order permitting some delay: see Industrial Hardwood, at para. 40. Likewise, discretion will likely be exercised contrary to the interests of the picketers if there is violence or other misbehaviour.

[49] While the matter is not before me, I think there would be less toleration of delay in the case of pure secondary picketing, that is, in a case where the picketed employer has no relationship with the striking trade union, and little relationship with the struck employer. In such a case, I think a strong argument could be made that picketing should remain informational only, without its coercive elements. The rationale for maintaining an appropriate balance, as in the case of a lawful strike, would usually be lacking. Of course, different considerations may apply depending on the relationship between the struck employer and the picketed employer, and the degree of assistance, if any, that is being given to the struck employer by the picketed employer: see, for example, Nedco Ltd. v. Nichols et al, 1973 470 (ON SC), [1973] 3 O.R. 944 (H.C.J.).

[50] In the final analysis, what was proposed to me by the employer struck a reasonable balance between the interests of the employer in having access to its property, and the interests of the union and its members in conveying its message and causing a measure of inconvenience to the employer’s operation. It was similar, in many respects, to what is often negotiated by experienced parties as a picketing protocol.

[51] Picketing protocols are to be encouraged. They are often negotiated with the assistance of police forces who have experience in these matters. Where they are negotiated, they can keep the involvement of the police to a minimum, and can keep the necessity for Court intervention to a minimum. Where a protocol is negotiated, and subsequently violated, it is often appropriate for the Court to simply incorporate the terms of the protocol into an order, without any further analysis: see Bell Canada v. Young, [2005] O.J. No. 3312 (S.C.J.).

Disposition

[52] For the foregoing reasons, I granted an injunction that permits the employer to have access to its property, but permits a measure of inconvenience and delay on the part of the union and its members.

[53] No costs were requested, and I ordered none.

GRAY J.

Released: February 26, 2013

COURT FILE NO.: 881/13
DATE: 2013-02-26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SOBEYS INC.

Plaintiff/Moving Party

– and –

UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175, JESSE WATKINS, DARRYL WATKINS, KOREY KIRBY, JOE RAULINO, RON WARD, KINGSLEY PREMPEH, ORAL MANROE, EVON BLACKSTOCK, DARREN KING, INDERJIT GORAYA, DEREK LAWSON, ROD DOYLE, TOM MARSH and OTHER PRESENTLY UNIDENTIFIED PICKETERS

Defendants/Responding Parties

REASONS FOR JUDGMENT

GRAY J.

Released: February 26, 2013