ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-0271
DATE: 2014-08-08

B E T W E E N:

BOMBARDIER TRANSPORTATION CANADA INC.,

Brian Babcock and Sarah Manilla, for the Plaintiff

Plaintiff

• and -

UNIFOR AND ITS LOCAL 1072, RON FROST, DOMINIC PASQUALINO, AND JOHN DOE, REPRESENTING THEMSELVES AND ALL MEMBERS OF UNIIFORR LOCAL 1072 AND ALL OTHER PERSONS HAVING NOTICE OF THIS ACTION WHO ENGAGE IN ACTIVITIES PROHIBITED BY ANY ORDER OF THE COURT,

Derek Noyes, for the Defendant, Unifor

Defendants

HEARD: August 7, 2014,
at Thunder Bay, Ontario

Regional Senior Justice H.M. Pierce

Reasons on Motion for an Order Varying Terms of an Order and for an Injunction

Background

[1] A legal strike began at the Bombardier facility in Thunder Bay on July 14, 2014. The facility manufactures train and subway cars. There are approximately 900 workers on strike, while about 400 management and administrative personnel continue to work at the facility.

[2] The parties agreed on a picketing protocol that was incorporated into the order of Mr. Justice Flynn dated July 23, 2014. Among other provisions, this order specified that no person or goods entering the facility should be delayed longer than a maximum time of 25 minutes, inclusive of any time in the line-up waiting to cross the picket line. The first car in the line was ordered not to be delayed more than 5 minutes. The order also provided that goods or personnel leaving the facility not be delayed more than 5 minutes. The result of that order, as interpreted on the picket line, has been that the length of time vehicles wait in the line to get into the facility depends on their location in the line. Sometimes waits exceed 25 minutes.

[3] Certain employees, including administrative staff from another union, are being transported to the facility by bus. The order provided that buses discharge their passengers outside the Bombardier premises and cross the picket line via a ten-foot wide berth in the picket line on either side.

[4] The order required the parties to communicate to their employees, supervisors, contractors and others to explain the terms of the order and reiterate the requirement for professional and respectful conduct. In the event the order was not complied with, the terms of the order permitted either party to apply to the court for a remedy on 36 hours’ notice.

[5] In response to events on the picket line after the issuance of the first order, Bombardier moved for variation of the order to govern picketing and for an injunction. Unifor sought an adjournment of the motion in order to file responding material. The adjournment was granted on terms that are contained in the second order, issued by myself on July 31st. These terms amended the first order, requiring the Thunder Bay Police and the Ontario Provincial Police to enforce the first order, declaring that parts entering and product leaving the facility were governed by the terms of the first order, and also requiring that copies of the first and second orders be posted prominently at the entrance to the facility.

[6] The motion returned for hearing on the merits on August 7th, with both sides filing updated material. Among other relief, Bombardier seeks an injunction with the following terms restraining the defendants or those acting on their behalf, from:

1. watching or besetting entrances or exits to the plaintiff’s property;
2. intimidating, molesting, obstructing or interfering with persons or vehicles entering or leaving the plaintiff’s property;
3. disrupting Bombardier operations;
4. intimidating or threatening the plaintiff’s employees, contractors, subcontractors, customers or suppliers;
5. inducing, counselling or procuring a breach of contract between the plaintiff and others; and
6. causing a nuisance at or near the plaintiff’s premises.

[7] Bombardier submits that the picketing protocol, as embodied in the first order, is not working. Some, but not all, of the plaintiff’s complaints with picketing have been attributed to confusion over the interpretation of the first order. Bombardier’s complaints can be summarized as follows:

1. Vehicles are still being delayed when crossing the picket line, albeit at a reduced level since the second order was issued.
2. The corridor through which bus passengers enter the facility has been as narrow as 8 feet, exposing passengers to intimidating behaviour with the potential for violence to erupt.
3. Supervisors have been targeted for delay upon leaving the facility.
4. The mass of picketers and cars parked on the verge of the roadway has produced crowding on the public street, leading to a dangerous condition.
5. The picket captains have lost control over picketers who refuse to obey their instructions.

[8] Bombardier plans to ship completed cars to its customer by rail or truck in the near future and fears an escalation of tensions on the picket line, leading to violence when the shipments commence.

[9] Unifor submits that, to the extent there were breaches of the first order, these were minor, isolated or unintentional and resulted from confusion in the implementation of the order. It also submits that the clarifications embodied in the second order have corrected the deficiencies in the first order, such that no further order is required. For example, Unifor says there have been no further issues over bus passengers or wait times.

[10] The defendants argue that police interventions have been effective to control problems and that the posting of the orders on August 1st has done much to regulate picketing. It also submits that injunctive relief should be granted sparingly, especially when clarifications of the existing order have been sufficient.

[11] With respect to the picketing protocol that gave rise to the first order, Unifor observes that the agreement was the result of negotiation in which both sides made concessions, with which the court should not interfere. Finally, Unifor contends that a threshold consideration for granting an injunction – can the police control the situation - has not been met as there is no evidence that the police cannot control the situation.

The Law

[12] Picketing is a constitutionally protected activity. The Supreme Court of Canada has recognized picketing as an expressive activity that communicates to the public information about a labour dispute. As well, it is a device to put social and economic pressure on the employer, its suppliers and clients: Pepsi-Cola Canada Beverages v. Retail, Wholesale and Department Store Union, 2002 SCC 8, [2002 1 S.C.R. 156, para. 27]. The court observed that freedom of expression is not absolute, but must be curtailed when the harm of the expression outweighs its benefit: para. 36.

[13] The courts recognize that picketing may involve some inconvenience to the public that must be balanced against the purpose of picketing. In Industrial Hardwood Products (1996) Ltd. v. International Wood and Allied Workers of Canada, Local 2693, [2001] O.J. No. 29 (C.A.), para. 14, the court said of picketing:

…It provides striking workers with the collective opportunity to seek to persuade others of the rightness of their cause. It allows them to express through collective action their solidarity in pursuit of that cause. And it provides an important outlet for collective energy in what is often a charged atmosphere.

[14] The court added 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.

[15] The test for an interlocutory injunction was settled in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] S.C.J. No. 17. The burden is on the plaintiff seeking the injunction to prove:

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

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

(c) the balance of convenience favours the plaintiff.

[16] In Sobeys Inc. v. United Food and Commercial Workers Canada, Local 175, [2013] O.J. No. 803 (S.C.J.), Mr. Justice D.K. Gray described a strike as “the end result of a failed negotiation, and is an economic struggle: ” para. 44.

[17] At para. 33, Justice Gray summarized the refinements to the test for an injunction where an injunction against picketing is being sought:

(a) the plaintiff must show a strong prima facie case instead of showing a serious case to be tried;

(b) because the issue deals with access to property, the plaintiff will more easily be able to show irreparable harm; and

(c) the plaintiff must comply with s. 102(3) of the Courts of Justice Act, and show that reasonable efforts to obtain police assistance have been unsuccessful.

Discussion

[18] It will always be preferable, in a labour dispute, that the bargaining unit police itself on the picket line. The intemperate actions of a few may lead an otherwise peaceful picket line to erupt in unlawful conduct that calls for court intervention.

[19] In this case, there is evidence that a few individuals have uttered threats to the plaintiff’s security forces; insulted an executive of Bombardier with racial slurs; sought to intimidate the occupants of a delivery truck and ultimately prevented it from entering the facility; significantly delayed management staff from entering and exiting the facility; significantly delayed bus traffic from entering the facility; pushed, shoved and assaulted bus passengers walking through the picket line; threatened security personnel with violence; and ignored directions by picket captains attempting to maintain a lawful and orderly picket line. Fortunately, there has not yet been property damage or personal injury. No criminal charges have been laid.

[20] The evidence also demonstrates that supervisory staff was specifically targeted for delay.

[21] On July 25th, a supervisor, Mr. McInnis, was delayed entering the facility for 40 minutes. The following day, after he and other managers were involved in water testing a train car, he was delayed 2 ½ hours in leaving. Other management personnel were also significantly delayed in leaving at that time.

[22] Mr. Aaron Rivers is Head of Operations for the Bombardier site. On July 22nd, the vehicle in which Mr. Rivers was a passenger was denied entry into the facility. His vehicle was swarmed by picketers who yelled expletives directed at Mr. Rivers and knocked on the windows. Other vehicles waiting in the line to enter the facility were called out ahead of the Rivers vehicle. Messers Baxter, Scheidl and Coley were also denied entry to the facility that day.

[23] On July 28th, the Rivers vehicle was delayed for over an hour before it was permitted to enter the facility.

[24] On July 29th, Mr. Rivers and other personnel attempted to leave the facility. After a ten minute delay, the picket captain directed that the line be opened. Picketers refused the direction of the picket captain and continued to block the vehicle, arguing with the picket captain. In the end, the police were called to intervene. The Rivers vehicle was detained for about 70 minutes.

[25] The defendants’ submission that it did not intentionally obstruct Mr. Rivers’ access to the facility is not credible. Picketers wore t-shirts advocating that Mr. Rivers go home. The bargaining unit voted to keep him out of the plant. There is a pattern of obstruction directed at Mr. Rivers.

[26] As of July 28th, other vehicles have been delayed longer than the maximum 25 minutes for entry stipulated in the first order. In one instance, the delay was 48 minutes.

[27] Most of this misconduct occurred before the issuance of the second order. In his affidavit sworn August 5th, Mr. Gasbarrino, the Director of Human Resources at Bombardier, indicated that the police have been more responsive to calls since the second order was granted. He also indicated that picketers are generally responsive to police direction when they arrive. However, the police are not always on site. When the officers arrive, they do not have a copy of the relevant orders.

[28] Furthermore, although the first and second orders were ordered to be posted at the entrance to the facility, there is some evidence that these orders have been taken down as of August 2nd. Security personnel for Bombardier re-posted the orders on August 6th and the orders were still in evidence as of August 7th.

[29] The court is very concerned about the risk of violence or other breaches of the peace on the picket line. There is a fine line between legitimate picketing activity and lawlessness. I have recited some examples of tortious conduct, particularly involving threats and intimidation by the picketers.

[30] However, I am not persuaded that, with the authority of the second order requiring police enforcement of the court orders, reasonable efforts to obtain police assistance have been unsuccessful. The evidence demonstrates that the police have been more responsive to problems at the picket line. The evidence also suggests that the picketers now have a better understanding of their obligations with respect to the court orders.

[31] Control of picketing behaviour is ultimately the responsibility of the defendants. In my view, an injunction in the terms sought by the plaintiff is premature. I am also not persuaded that limiting the numbers on the picket line is necessary if the picket line is orderly. In my view, the defendants should be given the opportunity to comply with the order of the court. However, the parties must clearly understand that the court will revisit the matter should circumstances deteriorate.

[32] The court has jurisdiction to vary the orders previously granted in this matter, both under the Rules of Civil Procedure and pursuant to the agreement between the parties that formed the basis of the first order. I conclude that variation of certain terms of the orders is required to regulate picketing and minimize the risk of personal injury.

[33] I agree that the present formulation of wait times at the picket line as governed by the current order may lead to confusion and should be simplified, while allowing picketers an opportunity to communicate about the strike to those accessing the facility. Therefore, paragraphs 3 and 4 of the order of Mr. Justice Flynn dated July 23, 2014 shall be varied to provide:

3. No Bombardier employee, supervisor, management personnel, contractor or other person or goods, including parts or product, entering the plaintiff’s premises shall be subject of any delay from any strike-related activity exceeding ten minutes, regardless of the location in line or lines at the entrance to the premises. Such delay is to be solely for the purpose of being communicated with by the Union.

[34] Paragraph 5 of the order of Mr. Justice Flynn shall be varied to provide:

5. While exiting from the premises, no employee, supervisor, management personnel, contractor or other person, including goods, parts or product, having business at Bombardier shall be the subject of any delay arising from strike-related activity beyond a maximum period of five minutes.

[35] There is a risk that picketers may physically interference with bus passengers in a climate of rising tempers and frustration on the picket line; however, I am not persuaded that the remedy at this point is to permit buses to discharge passengers on the Bombardier premises. Encroachment on the corridor through which bus passengers walk to the facility may lead to a dangerous situation. Therefore, paragraph 6 of the order of Mr. Justice Flynn shall be varied to provide:

6. The buses shall stop on Montreal Street in the westbound lane to allow people to get off the bus and enter the plaintiff’s premises. Picket captains shall ensure that a twenty foot corridor is established through which passengers may access the plaintiff’s premises without hindrance.

[36] The continuing assistance of the Thunder Bay Police Service in regulating picketing has been constructive and has helped to maintain the peace. The parties agree that any reference to the Ontario Provincial Police in the second order can be deleted. The order of Mr. Justice Flynn shall be amended to provide:

15. The Thunder Bay Police Service shall do all things reasonably able to be done, with such force and assistance as is required in the circumstances, to enforce this order. A copy of this order, as amended, is to be provided to the Thunder Bay Police Service forthwith.

[37] Parties involved in the strike need to be informed as to the comprehensive effect of orders issued by the court so that they can govern themselves accordingly. Counsel are directed to prepare one comprehensive order, incorporating the amendments, for posting at the entrance to the plaintiff’s premises. Therefore, the order of Mr. Justice Flynn shall be varied to provide:

16. A copy of the order of Mr. Justice Flynn, incorporating amendments made by this order, shall be posted prominently at the entrance to the plaintiff’s premises at 1001 Montreal Street, Thunder Bay.

[38] In my view, this is not a case for costs.

Madam Justice H.M. Pierce

Released: August 8, 2014

COURT FILE NO.: CV-14-0271
DATE: 2014-08-08

ONTARIO
SUPERIOR COURT OF JUSTICE

B E T W E E N:

BOMBARDIER TRANSPORTATION CANADA INC.,

Plaintiff

• and -

UNIFOR AND ITS LOCAL 1072, RON FROST, DOMINIC PASQUALINO, AND JOHN DOE, REPRESENTING THEMSELVES AND ALL MEMBERS OF UNIIFORR LOCAL 1072 AND ALL OTHER PERSONS HAVING NOTICE OF THIS ACTION WHO ENGAGE IN ACTIVITIES PROHIBITED BY ANY ORDER OF THE COURT,

Defendants

REASONS ON MOTION

FOR AN ORDER VARYING TERMS OF AN ORDER AND FOR AN INJUNCTION

Pierce R.S.J.

Released: August 8, 2014
/mls