COURT FILE NO.: CV-12-460168
DATE: 20130111
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
Plaintiff
– and –
SATBIR GILL, FABIO SLAYBE, PARMJIT BAJWA, HARJEET SINGH, HARJEET SIKHON, SUNIL SHARMA, SUDEEN RAMPERSAUD, JOHN DOE, JANE DOE, and OTHER PERSONS, NAMES UNKNOWN, who have been picketing and/or blocking and/or delaying access to or egress from Canadian Pacific Railway Company’s Vaughan Intermodal Terminal, located at 6830 Rutherford Road in the City of Vaughan, Ontario
Defendants
Steven F. Rosenhek, for the Plaintiff
Zohaib Maladwala, for the Plantiff
Jordan Goldblatt, for the Defendants
Louis Sokolov, for the Defendants
HEARD: September 10, 2012
ellen macdonald j.
REASONS FOR DECISION
Overview
[1] The moving party Plaintiff, Canadian Pacific Railway Company (“CPR”) seeks to convert an interim injunction argued against all self-represented Defendants into a permanent injunction. The injunction, if granted, would enjoin the Defendants from picketing at CPR’s terminal in Vaughan, (“the terminal”). CPR is a federally regulated transportation carrier operating in Canada and the United States. CPR serves virtually every major industry in Canada. CPR owns and operates the Vaughan Intermodal Terminal located at 6830 Rutherford Road in the city of Vaughan (the “Vaughan Terminal”). The Vaughan Terminal is CPR’s largest intermodal terminal in Canada. Its freight consists of high volume, time-sensitive shipments of manufactured consumer products, perishables and other goods. A Notice of Action dated July 31, 2012 sets out all of CPR’s claims including the request for a permanent interlocutory and interim injunction restraining the defendants from all of the activities that are outlined in the Notice of Action.
[2] The Defendants respond that CPR lacks the evidentiary and legal basis to meet the high burden required for a Court to permanently enjoin conduct especially where:
(a) The activity in question is clearly protected under the Charter;
(b) CPR ignored a reasonable protocol that fairly balance of various competing rights of the parties;
(c) The granting of a permanent injunction would effectively dispose of this entire action resulting in judgment before trial.
[3] It is on this basis that the Defendants say that CPR’s motion should be dismissed and that no permanent injunction should be ordered. The background of the matter is as follows: CPR seeks a permanent injunction following temporary injunction orders that were issued in July 31, 2012 by Penny J as varied at the request of CPR by Stinson J on August 3, 2012. Penny J granted CPR a temporary injunction for 21 days. Stinson J declined to vary Penny J’s order. The defendants were seeking permission to protest by picketing at the Vaughan Terminal gates for 5 minute stretches. Mr. Singh appeared in person and made this request. Stinson J encouraged all parties with whom (including the trucking companies with whom the defendants have an underlying dispute) to engage in discussions. It is noted that after Penny J. issued the injunction the trucking companies terminated the contracts of all drivers. As they are all contractors they are ineligible for employment insurance benefits.
[4] These discussions were unsuccessful with the result that Stinson J ordered that paragraph 4 in Penny J’s order be deleted. 4 stipulated that this order shall remain in effect for only 21 days provided that the respondents file responding material within 2 weeks. Stinson J ordered that the order of Penny J be amended by adding the language found in paragraph (e) of the August 3, 2012 motion. Stinson J varied by adding a term enjoining the Defendants from vandalizing the property of CPR and its suppliers. This order was made in response to credible evidence of vandalism and acts of endangerment of life, specifically violent and dangerous acts against CPR and some of the employees of the trucking companies. For the reasons set out below I order that the existing interlocutory injunction be converted to a permanent injunction pending the trial of this action.
[5] Since the issuance of Stinson J’s order on August 3, 2012, which prohibited vandalism, there have been no further reports of vandalism or damage to the properties. The immediate cessation of the dangerous acts of vandalism following the issuance of the order indicate that the Defendants and their supporters have complied with the orders of Penny J and Stinson J. CPR submits that if a permanent injunction is not granted it will continue to suffer irreparable harm to its reputation, goodwill, market share, and current and future businesses. CPR alleges that the blockade has caused significant harm to CPR’s reputation and goodwill because CPR’s intermodal customers were forced to endure unreasonable delays by reason of the blockade. If CPR is successful in convincing the court that the interim injunction now in place should be converted to a permanent injunction, this injunction enjoins the Defendants from picketing at CPR’s terminal in Vaughan.
[6] The Defendants are truck drivers. They are all individuals who own corporations that had contracts with three companies under contract to CPR. These transportation companies are identified in the affidavit of Balhar Singh sworn on August 20, 2012. The drivers are responsible for hauling freight away from CPR’s rail tracks to any number of destinations.
[7] Each driver separately contracts with his own trucking company. There are common terms to each driver’s contract in particular that each contract runs for a 3 year term and each contract has a termination date the latest one being July 9, 2012. It is important to observe that the drivers work exclusively for CPR. Their trucks have CPR equipment including a computer terminal provided by CPR which instructs a driver on a daily basis his jobs for each day.
Background of the Labour Dispute
[8] Prior to the termination date, each driver was advised by his trucking company that there would be a reduction in his/her pay. These reductions represented a 20-30% pay cut in most cases. The drivers refused this offer and asked to negotiate in good faith with the trucking companies. The deadline passed and the drivers went on strike. On July 30, 2012, the drivers began picketing the terminal. I accept that the primary object that the picket line was to inform the other truckers of the situation that the drivers were facing and to attempt to garner support. I understand from the affidavit of Mr. Balhar Singh that the drivers are responsible for hauling freight from CPR’S rail tracks to any of a potentially unlimited number of destinations. Each driver owns his own truck or tractor.
[9] A protocol was reached between a representative of CPR and the drivers. The protocol provided that: (a) only exit lanes from the terminal would be blocked; (b) all employee cars and small vehicles would instantly leave the terminal; (c) trucks or tractors hauling freight formally hauled by the drivers would be delayed from 5 to 7 minutes; (d) if CPR has a sufficient backlog of trucks wishing to exit the terminal such that there was a reasonable fear for safety, CPR could request that the drivers could leave the property without any further delay. Initially the protocol functioned effectively but it broke down.
[10] These proceedings were initiated in late July 2012. The drivers were served with materials seeking injunctive relief against them. On July 31, 2012, the order of Penny J prohibited the drivers from picketing CPR’s premises. On August 3, 2012, Stinson J refused to order that the drivers be required to picket only 500 meters away from the terminal. Penny J’s order was distributed by CPR to the protestors and posted at the entrances to the Vaughan Terminal. Representatives from the Sheriff’s office and officers from York Regional Police Service attended at the Vaughan Terminal to enforce the order of Penny J. By the evening of July 31, 2012, the protestors were no longer blockading or obstructing traffic entering or leaving the Vaughan Terminal. Beginning on August 2, 2012, CPR began receiving reports of serious acts of vandalism directed at the property belonging to CPR and the trucking companies. In the supplementary affidavit of Ron Kamins sworn August 3, 2012, it is disclosed that by August 2, 2012, CPR began receiving reports of serious acts of vandalism directed at the property belonging to CPR and the trucking companies in close proximity to the Vaughan Terminal. Mr. Kamins has sworn that these acts endangered public safety. Mr. Kamins is the superintendant of Terminal Operations for CPR’s intermodal operations at the Vaughan Terminal located at 6830 Rutherford Road. In this supplementary affidavit, he responds to the affidavit of Balhar Singh sworn August 20, 2012. He states in paragraph 8 of his affidavit, in response to paragraph 22 of Mr. Singh’s affidavit that it is false that the protestors did not attempt to delay trucks from entering the Vaughan Terminal. He reiterates what he said in his July 31, 2012 affidavit to the effect that the protestors were delaying both trucks entering and leaving the Vaughan Terminal.
[11] In one instance on August 2, 2012 a pellet was fired from what police suspect was a sling shot. It shattered the window of a Sintran truck being driven by a driver working for Sintran. Sintran has a contract with CPR to provide trucking services. The drivers who work for the company are contractors who have individual contracts with one of 3 companies including Sintran. The rock was fired from a vehicle travelling behind the Sintran truck. On August 2, 2012 at approximately 9:40 p.m. the side window of another Sintran truck driven by Pasanj Sherpa was shattered after pellets were fired at the truck being driven by a Sintran employee on Highway 7 on its way to the Vaughan Terminal. On August 2, 2012, it was discovered that 3 CPR trailers which were parked in a parking lot belonging to a CPR customer had been vandalized.
[12] The affidavit of Amanpreet Jaiya, sworn September 11, 2012 details the vandalism that occurred to his CMV overnight between September 5 and 6, 2012 when he returned to the Cadetta Road property to pick up his CMV at approximately 5:45 am. The Cadetta Road property is approximately 1 km from CPR’s intermodal terminal. The Cadetta Road property operates a parking facility for CMV’s. Mr. Jaiya noticed that the two CMV parked on either side of his had also been vandalized. Other example of the vandalism is that the break line of one of trailers was deliberately cut and two of the tires on the trailers were deliberately punctured. I agree that these incidents seriously threaten the safety of the truck drivers, other motorists and the public in general. To return to the order of Penny J. He also enjoined the defendants from blockading the flow of traffic in and out of CPR’s terminal. The defendants had blocked the entrance and exit from the terminal for over two days causing serious harm to CPR and its customers.
[13] On Tuesday the 18th of September, the matter came before me. I extended the injunction until the release of my decision in the CPR’s motion an interlocutory injunction. Its request is now described as a motion seeking a permanent injunction. The Defendants say that the Plaintiff has failed to meet the requirements for a permanent injunction. They point out that the analysis is to whether CPR is entitled to a permanent injunction must be framed against the underlying constitutionally protected activities of picketing. I was referred to Pepsi-Cola Canada Beverages (West Ltd. v. R.W.D.S.U, Local 558 (2002) 2002 SCC 8, 208 D.L.R. (4th) 385). The decision in Pepsi-Cola provides the comprehensive analysis of picketing in general and secondary picketing in particular. In this case, the Supreme Court of Canada held that picketing is a form of constitutionally protected expression and that expression is particularly important in the employment context. In Pepsi-Cola, the Supreme Court recognized that “picketing represents the continuing of expressive activity”. Examples are workers walking peacefully back and forth on a sidewalk carrying plaque cards and handing out leaflets to passerby or to rowdy crowds shaking fists, shouting slogans, and blocking the entrances of buildings. The Supreme Court of Canada made it clear that picketing “always involves expressive action” and “as such, it engages one of the highest constitutional values”. The Court noted that the law of tort may be expected to develop in accordance with Charter values to ensure reasonable balance between freedom of expression and protection of parties affected by picketing activity. The Defendants, citing Trail Mobile Canada Ltd. v. Merrill [1983] O.J. No. 1123 (H.C.) refers to the regulation of picketing in a labour relations context which must be done with “care, balance, and sophistication”. Interlocutory injunctions in a labour dispute are an extraordinary remedy to be granted only in the most exceptional circumstances or as a last result and only when the necessity for it is manifest. See Trailmobile Canada Ltd. v. Merrill [1983] O.J. No. 1123(H.C.), at para. 18 and Industrial Hardwood Products (1996) Ltd. V. Industrial Hardwood Products and Allied Workers of Canada, Local 2693 (2001), 2001 CanLII 24071 (ON CA), 52 O.R. (3d) 694 (C.A.).
[14] The Defendants say that in an interlocutory or permanent picketing injunction is an extraordinary remedy. A permanent picketing injunction such as being sought in this motion can only be granted in the rarest of circumstances where no other option exists for a court to permanently enjoin the protected activity. The Defendants pointed out that the pickets have been peaceful with minor confrontations between the drivers and other truck drivers who are entering the Terminal. They point out that there have been no criminal complaints or charges laid and that the drivers have complied with Penny J’s order. They further say that the evidence painting the drivers as aggressive is not credible.
[15] The Defendants also say that if an injunction was issued by this court, it would tip the balance between the employer and the striking employee’s right to free expression. They point out to the Court of Appeal’s decision in Industrial Hardwood Products (1996) Ltd. v. Industrial Wood & Allied Workers of Canada, Local 2693 (2001), 52 O.R. wherein the court observed that “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”.
[16] On the issue of irreparable harm to CPR the Defendants say that CPR has provided no evidence that it will suffer irreparable harm. The essence of the irreparable harm submission by CPR is that if a permanent injunction is not granted, CPR will continue to suffer irreparable harm to its reputation, goodwill, market share in current and future business as a result of the tortuous and illegal conduct of the Defendants. On the issue of a serious issue to be tried the first stage of the injunction test requires a preliminary examination of the merits of CPR’s claim.
[17] Secondary picketing is generally lawful unless it involves tortuous or criminal conduct. The affidavit of Christopher Fournier sworn on the 16th 2012 particularized the significant harm to CPR’s reputation and goodwill because many of CPR’s intermodal customers were forced to endure unreasonable delays during the blockade. Mr. Fournier states that due to these delays and the resulting loss in confidence by customers in CPR’s ability to ensure timely, cost effective service, many of CPRs customers moved their intermodal business to CPRs competitors, including CPRs major customer competitor, CNR during the course of the blockade.
Legal Issues
[18] In Section 102 (3) of the Courts of Justice Act, R.S.O. 1990 c.C. 43 the rules that apply when an injunction is sought in connection with a labour dispute are set out. Section102 (3) of the CJA provides:
(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.
[19] In the case of secondary picketing where the applicant is not the employer of the persons picketing its property, and there is no labour dispute between the parties, Section 102 has no application to this case. In this case CPR need only to satisfy the ordinary tri-partite injunction test in RJR-Macdonald cited in the following paragraph.
[20] I agree that in this case CPR has to satisfy the tests for an injunction which are set out in well known case of RJR-MacDonald Inc. v. Canada (Attorney General) (1994) 1994 CanLII 117 (SCC), 111 D.L.R. (4th) 385 (SCC) (“RJR”). CPR’s factum addressed the issue of irreparable harm if the permanent injunction requested is not granted.
[21] In conclusion, I order making permanent the temporary injunction which was granted by Penny J on July 31, 2012. CPR has given the usual undertaking as to damages. Costs are reserved to be determined at the trial of this action.
Ellen Macdonald J.
Released: January 11, 2013
COURT FILE NO.: CV-12-460168
DATE: 20130111
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
Plaintiff
– and –
SATBIR GILL, FABIO SLAYBE, PARMJIT BAJWA, HARJEET SINGH, HARJEET SIKHON, SUNIL SHARMA, SUDEEN RAMPERSAUD, JOHN DOE, JANE DOE, and OTHER PERSONS, NAMES UNKNOWN, who have been picketing and/or blocking and/or delaying access to or egress from Canadian Pacific Railway Company’s Vaughan Intermodal Terminal, located at 6830 Rutherford Road in the City of Vaughan, Ontario
Defendants
REASONS FOR DECISION
Ellen Macdonald J.