SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-306-00

DATE: 20130130

RE: Ideal Railings Ltd. Plaintiff

AND:

Laborers' International Union of North America, Local 183, Nelson Melo, Jack Oliveira, Joao Batista Alves, Jamie Cortez and Unidentified Picketers, Defendants

BEFORE: Ricchetti, J.

COUNSEL:
I. St. John and D. Attwell, Counsel, for the Plaintiff

C. Sinclair, Counsel, for the Defendant Laborers' International Union of North America, Local 183

HEARD: January 29, 2013

ENDORSEMENT

THE MOTION

[1] The Plaintiff, Ideal Railings Ltd. ("Ideal") brought this motion seeking an interim and interlocutory injunction to prevent picketing and other alleged tortious and unlawful conduct by the Respondents.

[2] This motion was originally returnable on January 25, 2013. S. 102(6) of the Courts of Justice Act had not been complied with. As a result, the motion was adjourned to January 29, 2013.

[3] The individual defendants have not been served personally. While Mr. Joao Batista Alves has not been formally served, given that he has filed an affidavit and is the Assistant Business Manager/Sector Coordinator of LIUNA Local 183 (“LIUNA”), I am satisfied that the relief granted herein should specifically include relief against Mr. Alves. If it is his position that this order should not specifically refer to him, he can move to set aside this order as against him.

[4] LIUNA filed responding materials on January 28, 2013. Reply materials were filed later the same day. Factums were filed by both counsel.

[5] Both counsel agreed this court should hear the Plaintiff's interlocutory motion without viva voce and without cross examinations.

THE POSITION OF THE PARTIES

[6] The Plaintiff seeks an interlocutory injunction in accordance with the relief set out in their Notice of Motion dated January 24, 2013.

[7] LIUNA submits that the Plaintiff’s motion should be dismissed because:

a) The Plaintiff has failed to establish irreparable harm or that the balance of convenience favours the granting of the injunction

b) The Plaintiff has not bargained in good faith and in particular, has not negotiated in good faith, caused this strike by filing a “no board” and by offering to pay LIUNA to give up its bargaining rights; and

c) The Plaintiff has other companies, Bolton Railings Inc. and Concord Aluminum Railings Ltd. which are alleged to be “related employers” and therefore, any harm arising from the facts described herein is lessened eliminating any irreparable harm and/or making the balance of convenience in favour of the Defendants;

[8] In the alternative, LIUNA submits that this motion should be adjourned until after February 2, 2013 to permit the parties to continue negotiations scheduled that day.

THE FACTS

[9] Ideal is a manufacturer, supplier and installer of interior and exterior railings in new residential subdivisions. Ideal's office and manufacturing facility is located at 3076 Lenworth Drive, Mississauga. ("Ideal's Facility") Lenworth Drive is a commercial industrial area.

[10] There are two driveways for direct ingress and egress from Ideal's Facility. Access to the Ideal Facility can also be obtained through a neighbouring property’s connecting driveway.

[11] Ideal's employees can be categorized into several groups:

a) Approximately 10 clerical, administrative and sales staff;

b) Production Workers - these (approximately 22) employees manufacture the railings at Ideal's Facility in accordance with the precise measurements taken on site by the Outside Workers;

c) Outside Workers - these (approximately 19) employees attend new homes being built for precise measurement of the railings, provide those measurements to the Production Workers and when the railings have been manufactured, pick up the railings, and re-attend at the new home to install the railing.

[12] The Production Workers are members of LIUNA. A collective agreement exists between the Production Workers and Ideal.

[13] The Outside Workers are also members of LIUNA. A collective agreement between the Outside Workers and Ideal has been the subject of bargaining for a number of months.

[14] The Outside Workers were in a legal strike position on January 10, 2013.

[15] Some picketing and some bargaining went on between January 10, 2013 and January 19, 2013. The parties were unable to reach a collective agreement.

[16] When the negotiations fell apart Ideal became concerned that LIUNA would re-commence picketing. Ideal contacted the police on January 19, 2013 advising there might be picketing at the Ideal Facility commencing on January 21, 2013.

[17] What is highly unusual in this case is that a significant number of the Outside Workers, members of the bargaining unit on strike, have continued to work measuring and installing railing for Ideal.

[18] The actions which form the fundamental basis of the relief sought is:

a) The picketing by LIUNA which was intended and did prevent any Ideal trucks with any materials to enter or leave the Ideal Facility; and

b) The tortious and unlawful actions by LIUNA members at the residential subdivisions towards Outside workers who have chosen to continue to work.

The Events on January 21, 2013

[19] The police arrived at the Ideal Facility early on January 21, 2013.

[20] There was picketing at Ideal's Facility by 70 or 80 individuals.

[21] By 6:30 am there was a large number of vehicles lined up to access the Ideal Facility. Essentially, the picketers decided to block all Ideal or supplier vehicles from entering or leaving Ideal's Facility. Personal vehicles were initially prevented from entering the Ideal Facility but eventually permitted to pass through the picket line as a result of some intervention by the police arising from the creation of a traffic hazard caused by the long line up of vehicles. Ideal trucks were continued to be blocked from entering or exiting the Ideal Facility for approximately 4 hours.

[22] The police were present at the Ideal Facility but did not assist in the access or egress of Ideal trucks from the Ideal Facility.

[23] Mr. Meza, one of the Outside Workers and a member of the bargaining unit on strike, had chosen not to picket but to continue to work for Ideal installing railings. At approximately 9:30 am on January 21, 2013 while installing a railing at Berkely Developments' residential project in Wasaga Beach, Mr. Meza was approached by a union member. Mr. Meza was told by the union member to stop working as Local 183 had a picket line at Ideal. Mr. Meza was told by the union member that if he did not stop working, the union member would call additional members of the union to "tell" him to stop working. Mr. Meza told the union member to leave and continued his work. The union member went outside but remained at the site. Several hours later, two additional union members joined the initial union member. One of the union members was Joao Batista Alves. Mr. Alves wanted to know from Mr. Meza who was supplying materials to Mr. Meza. Mr. Alves told Mr. Meza to stop working immediately and if he didn't, Mr. Alves would call an additional 10 members of Local 183 to "tell" him to stop working. Mr. Meza understood this as a threat and was afraid for his personal safety. This conduct, on the record before me, clearly establishes both tortious and unlawful conduct by the union members.

[24] Jorge Olivares, one of the Outside Worker and member of the bargaining unit on strike, had chosen not to picket but to continue to work for Ideal installing railings. At approximately 7:30 am on January 21, 2013, Mr. Olivares went to the Regalcrest Homes' residential project in Brampton to install railings. Shortly after Mr. Olivares arrived at the home he was to work on, 4 or 5 vehicles drove up. Six individuals approached him and said Mr. Olivares was not permitted to work because of the strike at Ideal. Mr. Olivares said he would go to the site supervisor to discuss the matter. When he got into his vehicle, one of the individuals (who was later identified to be Stefano Lambardo a union member) started hitting Mr. Olivares’ vehicle with his hand. Mr. Lambardo alleged that Mr. Olivares had almost hit him. Mr. Lambardo opened the vehicle’s door, grabbed Mr. Olivares' clothing, said he would follow Mr. Olivares 24 hours a day and said he was going to kill him. This conduct, on the record before me, clearly establishes both tortious and unlawful conduct by the union members.

[25] Joe Renda, one of the Outside Worker and member of the bargaining unit on strike, had chosen not to picket but to continue to work for Ideal installing railings. Mr. Renda was accompanied by Roberto, another Outside Worker and also a member of the bargaining unit on strike. They attended at Royalcliff Homes residential development in Brampton to take measurements for railings. Mr. Renda and Roberto were approached by a union member and told they were not permitted to continue working. Mr. Renda and Roberto left the site and returned to the Ideal Facility.

[26] When Mr. Renda and Roberto arrived at the Ideal Facility in their Ideal truck, there were 10 to 12 picketers blocking the driveways. Mr. Renda was able to enter the Ideal Facility right away. However, when he attempted to leave the Ideal Facility in the Ideal truck, he was told by the picketers that unless the truck was empty he would not be permitted to cross the picket line. Mr. Renda tried to leave the Ideal Facility several times with the Ideal truck but was unsuccessful. Eventually, Mr. Renda had to abandon the Ideal truck at the Ideal Facility (his usual mode of transportation to and from work) and left on foot making arrangements with a friend for a ride to the subway station. This is direct evidence of a deliberate "blockade" of Ideal trucks rather than the exercise of the union's right of free speech.

[27] During the course of the day a for a short period of time, the picketers used one of their vehicles to block a truck from exiting the area despite the fact the truck belonged to Vulcan, the next door neighbour of Ideal. No doubt this was disruptive of Vulcan's business.

[28] Also during the course of the day, the picketers started to shout at a surveillance agent of Ideal in the area. Later some picketers started to "rock" the same agent's vehicle. The picketers continued to intimidate the same agent, particularly, when one of union members who blocked traffic in his vehicle was masked and making inappropriate hand gestures. Throughout the day, there were several occasions where the picketers used their vehicles to block ingress and egress from the Ideal Facility. This is direct evidence of tortious and unlawful conduct by the union members on the picket line.

[29] Since January 21, 2013, no Ideal trucks carrying product or materials have been permitted to cross the picket line. This is direct evidence of the picketers continuing intention to "blockade" all Ideal trucks with product and materials from coming to or leaving the Ideal Facility.

The Events on January 22, 2013

[30] As a result of being unable to obtain the measurements from and supply completed railings to Outside Workers, Ideal had no further manufacturing work. Ideal laid off all but one of its Production Workers.

The Events on January 23, 2013

[31] On January 23, 2013, 4 Ideal trucks were loaded with materials and attempted to leave the Ideal Facility early in the morning. After being blocked by the picketers from leaving the Ideal Facility for approximately 7 hours, the Ideal trucks simply went back to being parked at the Ideal Facility. Ideal contacted the police to assist. The police indicated they would not assist getting the trucks through without a court order. This is further evidence of the picketers continuing intention to "blockade" all Ideal trucks with product and materials from coming to or leaving the Ideal Facility.

[32] On January 23, 2013, Mr. Meza went to a job site in Brampton at an Aspen Ridge residential subdivision. Mr. Meza went to a new home to install a railing. As soon as Mr. Meza arrived, a union representative, Joel Moniz, told Mr. Meza couldn't do any work at the home. Mr. Meza told Mr Moniz he was going to perform his work. Mr. Moniz positioned himself between Mr. Meza and the entrance to the home. As Mr. Meza tried to walk past Mr. Moniz, Mr. Moniz shoved him back from entering the home. Mr. Meza again tried to push past Mr. Moniz but Mr. Moniz continued to physically shove him away preventing Mr. Meza from entering the home. The site supervisor (a representative of Aspen Ridge) told Mr. Meza to leave to avoid further incident. Mr. Meza got in his vehicle and left. Mr. Moniz, in his vehicle, followed Mr. Meza's vehicle. Mr. Meza was telephoned and was told to return to the job site. Mr. Meza did so. Mr. Meza and the site supervisor went over to the home. There were now 4 vehicles and 10-15 union members blocking access to the home Mr. Meza was to work on. Mr. Meza was told by the union members he wouldn't be permitted to continue working at the home and being there was a "waste of time". There was a verbal exchange. The site supervisor called the police but the police would not take any action. The site supervisor told Mr. Meza to leave the job site to avoid any incidents with the union. Mr. Meza left the site. Mr. Meza's vehicle was followed by a union member’s vehicle to Mr. Meza’s home. The union member waited a few minutes and then left. Mr. Meza was concerned for his and his family's safety. This is direct evidence of clear tortious and unlawful conduct by the union members.

[33] On this day, Ideal was contacted by the police advising that picketers had prevented an employee of Ideal from entering the site one of Ideal's customers, Country Homes. This same information also came from Country Homes.

[34] The police were contacted regarding the threat against Mr. Olivares. Charges have been laid against Mr. Labardo.

January 25, 2013 to January 29, 2013

[35] On January 25, 2013 the parties were in court before me. While I did not grant an interim order, my endorsement of that day, read out in court to counsel and the parties present, made it very clear that "if the allegations set out above are true and continue today, over the course of the weekend, it will be a very serious matter for this court's considerations and might well be a significant factor in determining whether to grant and injunction and what terms would be reasonable and appropriate in the circumstances". Further, Ideal was given leave to bring the motion back before me on short notice, if any emergency situations arise.

[36] From all accounts picketing was peaceful and without incident between January 25, 2013 and January 29, 2013. Counsel for LIUNA suggests this is evidence a court order is not needed. I disagree. All parties were aware that the motion would be coming back before me on January 29, 2013 and it was likely this reason that peaceful picketing occurred over the weekend. It is not an indication of what would transpire if the Plaintiff's motion was dismissed.

Police Assistance

[37] The evidence clearly establishes that Ideal and its customers have attempted to obtain police assistance on numerous occasions but police assistance has not been forthcoming to deal with the alleged tortuous conduct and some unlawful conduct without a court order.

[38] I reject the defence submission that the requirements of s. 102(3) of the Courts of Justice Act have not been met. The police could not have been clearer to Ideal and to the builders - the police will not become involved in protecting tortious conduct or even threatened unlawful conduct in a labour dispute absent a court order. Ideal did everything it could to get police assistance to get the Ideal trucks through the picket lines at the Ideal Facility and it was not forthcoming.

[39] I am satisfied that the Plaintiff made reasonable efforts to obtain police assistance as is required by s. 102(3) of the Courts of Justice Act.

Impact on Ideal's business

[40] The impact on Ideal's business can be seen from the laying off of its Production Workers. Equally important, Ideal's contracts with its builder customers to supply railing to the new residential home developments are potentially at risk. Ignoring the hearsay evidence in the Plaintiff’s materials, it is obvious that the builders of the new homes have schedules for completion of the sale to purchasers and the actions of the union members are deliberately preventing willing Outside Workers from installing or measuring railings at these new residential developments. It is simply common sense that one option available to these builders, if union members were permitted to continue the tortious and unlawful actions of January 21-23, 2013 indefinitely, would be to turn to other railing suppliers. If so, the loss and impact to Ideal's business would not be quantifiable.

Undertaking

[41] Ideal has provided the necessary undertaking.

THE ANALYSIS

The Law

Complete blockade

[42] The picketers are entitled to and can seek to bring economic pressure to bear on an employer through communication and enlisting the support of the public, customers, suppliers and so on. In Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp https://www.canlii.org/en/ca/scc/doc/1979/1979canlii23/1979canlii23.html 1979 23 (SCC), [1979] S.C.J. No. 45. the court stated “ This is done by dissuading various groups and individuals from having anything to do with the employer.” The "dissuading" is done through communication not a blockade of the employer's premises. It cannot be done by a complete disregard for the employer’s property rights through a deliberate blockade or obstruction to bring the employer's business to a halt or through other tortious or unlawful conduct.

[43] The law was summarized by Justice Brown in Brookfield Properties Ltd. v. Hoath [2010] O.J. No. 4822 at paras. 30-36:

In a labour dispute the act of picketing involves an element of physical presence incorporating an expressive component. In Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd. the Supreme Court of Canada identified two usual purposes of picketing: (i) to convey information about a labour dispute in order to gain support of its cause from other workers, clients of the struck employer, or the general public, and (ii) to put social and economic pressure on the employer, suppliers and clients. Our Court of Appeal has identified a few other purposes, including that picketing enables strikers through collective action to express their solidarity in pursuit of their labour cause and picketing also provides an important outlet for collective energy in what is often a charged atmosphere.

Given the expressive nature of picketing, the Supreme Court held the Pepsi-Cola case that picketing is allowed, regardless of location – i.e. whether it is primary or secondary picketing – unless the picketing involves criminal or tortious conduct, such as trespass, nuisance, intimidation, defamation or misrepresentation:

103 At this point we may usefully review what is caught by the rule that all picketing is legal absent tortious or criminal conduct. The answer is, a great deal. Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation will be impermissible, regardless of where it occurs. Specific torts known to the law will catch most of the situations which are liable to take place in a labour dispute. In particular, the breadth of the torts of nuisance and defamation should permit control of most coercive picketing. Known torts will also protect property interests. They will not allow for intimidation, they will protect free access to private premises and thereby protect the right to use one's property. Finally, rights arising out of contracts or business relationships also receive basic protection through the tort of inducing breach of contract.

The courts of this province have consistently held that picketing which prevents the lawful entry and exit of the owners, tenants or users of a property constitutes a nuisance which can be controlled through the issuance of an injunction. In Canada v. Gilleham the court stated that peaceful picketing did not allow any vehicle to be “stopped for a moment. It does not allow the interference with any person being stopped or held up.” A very similar view was taken by the motions judge in Ogden Entertainment Services v. Retail, Wholesale/Canada Canadian Service Sector Division of the United Steelworkers of America, Local 440, a case involving picketing which significantly delayed the ability of patrons of the Corel Sports Centre in Ottawa from entering the parking lot. In that case the motions judge held that the right to picket and communicate did not include the right to obstruct traffic and he granted an injunction preventing the picketers from “intimidating, molesting or interfering with or blocking or physically obstructing or delaying whatsoever, any person or vehicle from entering or exiting” the Corel Centre sports complex in Ottawa.

In Ogden a single judge of the Court of Appeal stayed the injunction, but a three-person panel set aside the stay of that portion of the injunction restraining the obstructing of access to the property stating:

The second ground advance in support of the stay is to the effect that the defendants are entitled to impede or delay traffic by stopping cars for short periods in furtherance of their acknowledged right to picket in the course of their lawful strike. We have set out the terms of the order. It is clear that this order does not, as suggested, constitute a ban on picketing. Nor can the order be said to be analogous to a ban. The striking employees remain fully entitled to peacefully picket the plaintiff's premises in the locations where they have been doing so. They are restrained only from engaging in the type of conduct specified in the order, in particular, from interfering with or blocking or physically obstructing or delaying any person or vehicle from entering or exiting the property. The prohibition is against engaging in conduct of that nature.

A question arose during argument today as to the interpretation of the order as a result of comments which were apparently made during the hearing before the motions judge. The question is whether picketers are entitled to offer leaflets or pamphlets to motorists who may be stopped while waiting to enter the parking lots or who may of their own free will stop in order to accept information of this nature. The injunction does not appear to restrain this type of activity and Mr. Morrison, counsel for the plaintiff, agrees that such conduct would not, in and of itself, constitute a violation of the order. We make this comment in the hope of avoiding any misunderstanding as to what is covered by the order.

So, too, in the Industrial Hardwood Products case, the picketers obstructed the entry into plant premises of vans carrying replacement workers to and from work. The motions judge granted an injunction which prohibited the picketers from “preventing or attempting to prevent vehicular access” to the plant and also prohibited 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.” The Court of Appeal upheld those provisions of the injunction stating:

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.

Finally, in Aramark Canada Ltd. v. Keating, Hill J. stated that “picketers do not have any unrestricted right to block vehicles from passage in and out of picketed premises.” While he went on to observe that recognition of the freedom of expression inherent in lawful picketing implies allowances for reasonable delay to effect communication of relevant information, “conduct amounting to a blockade, whether continuous as in this case, or for periods of time beyond what is reasonably necessary to convey information, is not an impediment but is an unjustified obstruction.”

Thus, the case law distinguishes two very different situations. Picketing which constitutes obstruction of the lawful entry to and exit from premises is unlawful, constituting a nuisance. That the blockading or obstruction occurs during a labour dispute does not transform an unlawful nuisance into a lawful expression of a message. However, picketing which attempts to communicate information to those attempting to enter into or leave premises may result in temporary delays where the targets of the communicated message stop and engage the picketers in discussion. Delays incidental to such communication which last only for the amount of time reasonably required to convey the message may fall into the category of permissible impedence, rather than unlawful obstruction or blockage.

[44] Justice Brown found at paragraphs 53 that the picketers had simply blocked vehicles from entering or exiting the company premises and not for the purpose of communication. This is similar to the facts in this case.

Tortious and Unlawful Conduct

[45] Tortious and unlawful conduct is not permitted, whether in the context of a labour dispute or otherwise. See Retail, Wholesale and Department Store Union, Local 558 v. Pepsi Cola Canada Beverages (West) Ltd. (2002), https://www.canlii.org/en/ca/scc/doc/2002/2002scc8/2002scc8.html

[46] Defence counsel does not challenge this statement of law and does not object to an order which would prohibit this conduct continuing (while not admitting that such conduct has in fact occurred).

COSTS

[72] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 3 pages, with attached Costs Outline and any authorities.

[73] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 3 pages with any authorities relied on attached.

[74] There shall be no reply submissions without leave.

Ricchetti, J.

Date: January 30, 2013