v. Service Employees International, 2013 ONSC 4894

COURT FILE NO: CV-13-484841

DATE: 20130722

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Service Corporation International (Canada) ULC

Plaintiff/Moving Party

• and -

Service Employees International Union Local1 Canada,

Andrew Barker, Jay Burford, Merili Cappussi, Marco Caringi,

Glenn Carter, Joseph Collins, Danny Di Matteo, Joel Dodge,

Jennifer Duncan Davies, Ray Eisler, Timothy Ferriman,

Joe Galati, Amalia Gallucci, Mike Giovanetti, Warren Gleiser,

Randall Goodman, Robin Gray, Ronda Guthrie, Paul Ireton,

Keith King, John Klein, Norm Knutton, Tom Kwan, Steven Landon,

Raffael Mariana, Ava Mariani, Douglas McLennan, Pedro Melo,

Mary Lee Meyer-Balconi, Michael Morin, Salome Ndungu-Ambari,

Declan O’Carroll, Peter Plantinga, Doug Power, Alicia Romero

de Escobar, Steven Rose, August Sapinet, Joseph Simon, Marek

Supierz Szczglowski, Carl Trinier, Ian Trumpour,

and other presently unidentified picketers

Defendants/Responding Parties

BEFORE: The Honourable Mr. Justice Kevin Whitaker

COUNSEL: James Fu, Sara Hanson & M. Axelrod,

for the Plaintiff/Moving Party

Michael A. Church & R.M. Church,

for the Defendants/Responding Parties

HEARD: July 19, 2013

E N D O R S E M E N T

Re Application

[1] This is an application under Section 102 of the Courts of Justice Act R.S.O. 1990 Chap.C.43. The applicant employer seeks a labour injunction against the respondent trade union and the remaining respondents, members and/or officers of the union.

[2] The employer locked out the employees, members of the bargaining unit on June 27, 2013. Picketing has occurred at the employer’s premises since the date of lockout.

[3] There has been one significant issue of secondary picketing at the premises of a third party contractor. This has been settled and the secondary picketing at this site is now discontinued.

[4] The employer seeks to enjoin the picketing. The union and its members resist the application.

[5] The employer provides funeral services through different sites in Toronto. The picketing has occurred at one main location. The bargaining unit consists mainly of part time drivers but also includes other employees, including embalmers.

[6] The parties agree on the appropriate four part test to be applied. To be successful, the employer bears the onus of proving all four elements:

(i) reasonable efforts have been made to obtain police assistance without success;

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

(iii) the applicant will suffer irreparable harm if the injunction is not granted;

(iv) the balance of convenience favours granting the relief.

[7] The union submits and I agree that picketing is constitutionally protected activity, that the remedy being sought is considered to be extraordinary relief and that the employer bears a significant burden to prove all four of the separate elements of the test.

[8] The union argues that during a lockout or strike, both parties must appropriately accept and tolerate a degree of economic harm which is an inherent part of the collective bargaining process. Both strike and lockout provide an opportunity for the parties to rely on economic pressure mustered for the purpose of moving the other side into agreement at the bargaining table. On the employer’s side, business volume may be affected. On the union and employees’ side, wages are discontinued.

[9] As Mr. Justice Gray of this court said in Sobeys (Sobeys v. UFCW, Local 175), [2013] ONSC 1207:

It has been noted more than once that a strike is not a tea party… A strike is the culmination of a failed negotiation. After a failed negotiation, emotions are often high. What ensues is an economic struggle…. 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. (Emphasis added).

[10] Similarly, 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), Justice Goudge indicated:

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.

[11] This is a sophisticated employer, represented by expert counsel. The employer must have anticipated that it would be faced with significant inconvenience when it chose to lock out its employees on June 27, 2013. The employer would also know that in the act of locking out, employees would no longer receive wages. Indeed, the act of locking out is like a strike, a sanctioned economic weapon designed to pressure the union and employees to achieve collective bargaining goals for the employer, at the negotiating table.

[12] The employer has failed to demonstrate irreparable harm, one of the four parts of the test. No criminal charges have been laid. No civil actions have been initiated for damages arising from picketing. No employees have been disciplined for any conduct while picketing or otherwise.

[13] There has been no conduct of the type alluded to by Justice Goudge that would elevate the respondents’ behaviour to the level that would justify an infringement of constitutionally protected conduct. Indeed, the union’s action is of the type contemplated by Justice Gray in Sobeys.

[14] While I accept the employer’s submission that picketing action must be measured in part by the standards of the industry – and in this case that includes the provision of dignified and respectful services to those who have recently lost loved ones and friends – I find there to be no demonstrated loss that could not be compensated by damages.

[15] With respect to the claim that business will be permanently lost, this is a mere bald assertion without any adequate analysis or underpinning.

[16] The employer has suggested that it is suffering from economic loss, however, there is no reliable evidence to suggest a causal relationship between the picketing and loss of business even if that were to be considered relevant.

[17] If I am wrong on the issue of irreparable harm, I conclude that the employer’s efforts to obtain police assistance were, indeed, successful. The police attended on virtually every occasion where their assistance was requested and the peace has been maintained. I disagree with the suggestion that the neutrality policy of the local police is not responsive to the needs of the employer. On the contrary, the police have been instrumental in acting to insure that the rights and obligations of both employer and union/employees are being met. The employer may not like the outcome of police intervention, but that does not mean that the police have been unresponsive to requests for assistance or ineffective in their response. This is not a case where the police have simply stood back.

[18] Addressing the other issues briefly, there is a serious issue to be tried, but I would not find that the balance of convenience favours granting the relief sought. I agree with the union’s characterization of the picketing here as disciplined and appropriate. Absent criminal or tortious conduct, these employees with discontinued wages are entitled to exercise their freedom of expression.

[19] The application is dismissed.

[20] As agreed by the parties, cost submissions may be made within 20 days.

Whitaker J.

DATE: July 22, 2013