CITATION: AirTime Express Inc. v. Teamsters Local Union No. 419, 2017 ONSC 5401
COURT FILE NO.: CV-17-581674
DATE: 20170912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AIRTIME EXPRESS INC.
Plaintiff
– and –
TEAMSTERS CANADA and its LOCAL 419, HARJINDER BADIAL, BRIAN LAWRENCE, JOHN GIANNONE and UNIDENTIFIED PICKETERS
Defendants
Trevor Lawson and Justine Lindner for the Plaintiff
Laurie Kent, Stephen Wahl, Mireille Giroux and Lauren Tarasuk for the Defendants
HEARD: September 11, 2017
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] The Defendant Harjinder Badial is the Vice-President of the Defendant Teamsters Local Union No. 419 (misnamed as Teamsters Canada and its Local 419), which is a trade union under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. The Defendant Brian Lawrence is the Union’s President. The Defendant John Giannone is a Chief Steward of the Union and an employee of Swissport Canada Handling Inc.
[2] The Union is the exclusive bargaining agent for the approximately 600-700 employees of Swissport Canada Handling, which loads and unloads luggage and cargo from planes at the Lester B. Pearson International Airport in Toronto, Ontario, which is on property owned by the Greater Toronto Airport Authority (“GTAA”).
[3] On July 27, 2017, the Swissport Canada Handling employees began a strike against their employer, and they began to picket in the Infield Cargo area of the Airport, where the Plaintiff AirTime Express Inc., which is a cargo handler, and other cargo handlers, including Swissport Canada Handling, carry on business.
[4] AirTime Express alleges that the picketing activities are unlawful, and it brings a motion for an interlocutory injunction to prohibit the picketing.
[5] AirTime Express’s motion was heard on September 11, 2017, and I made two endorsements, as follows:
This is an interlocutory motion for an injunction in a labour dispute. The defendant union brings a preliminary objection that it has been misnamed, that Mr. Lawrence has improperly been joined, and that no representation order has been obtained. The joinder of Mr. Lawrence is a matter to be dealt with as a matter of costs. The plaintiffs request that the misnomer be corrected and that a representative order naming the personal defendants as representing the union be made. This request addresses the defendants’ technical objections, and I grant the request. Order to go accordingly.
There is a labour dispute between the employees of Swissport, who are represented by Teamsters Local 419, and Swissport. Swissport is located at Pearson International Airport, and the Union has organized informational picketing at the Airport entrances and exits. AirTime Express, which is not a party to the labour dispute but which has been affected by the picketing activities, brings a motion for an interlocutory injunction to restrain the picketing at the intersection of Britannia Rd. with Britannia Rd. For written reasons to follow, I grant the following Order:
(1) the order of Justice Firestone in the action between Greater Toronto Airport Authority v. Teamsters Local Union No. 419 (Ct. File No. CV-17-582076) shall apply to the picketing at Britannia Rd. with Britannia Rd. as set out in paragraph 3: Location No. 6 of the Order.
[6] These are my Reasons for Decision for the Order made in my second endorsement.
B. Factual Background
[7] The main entrance to the Infield Cargo area of Pearson International Airport in Mississauga, Ontario, and the main means of ingress and egress for the baggage and cargo handlers that work at the Airport, is at a loop or intersection between the twisting Britannia Road East and itself. There is also access at Fifth Line and Britannia Road but this route is not significant.
[8] In the Infield Cargo area, the GTAA leases premises to several cargo companies including AirTime Express, which rents premises at 2720 Britannia Road East, Cargo Building 3.
[9] AirTime Express is a truck and air freight transport corporation with the base of its operations at the Infield Cargo area. It operates 24-7 (24 hours a day, 7 days a week) and specializes in air cargo shipping, warehousing and distribution including time-sensitive cargo, freight, and courier services. It has approximately 100 employees, almost all of whom arrive at its premises by automobile.
[10] On July 27, 2017, the Swissport Canada Handling employees began a strike against Swissport Canada Handling. Swissport Canada Handling operates at Cargo Building 2, which is a neighbouring building to that of the premises of AirTime Express.
[11] AirTime Express is not a party to the labour dispute.
[12] On August 10, 2017, the Union set up a 24-hour picket line at the entrance to the Infield Cargo area at the Britannia Rd. intersection. Messrs. Badial and Giannone directed the picketing activities.
[13] On August 14, 2017, there was a meeting among Mr. Giannone and Mark MacAlpine, AirTime Express’s President, and Patrick Gorman, AirTime Express’s Operations Manager. As a result of the meeting, AirTime Express and the Union entered into an oral agreement regarding the picketing activities of the Union at the entrance of the Infield Cargo area. The Union agreed to forgo communicating information at the picket line to the drivers of the AirTime Express vehicles or to AirTime Express employees traveling to work. The AirTime Express vehicles were to be granted free passage and they could bypass the picket line.
[14] The Union submits that the agreement was entered into on the basis of representations that AirTime Express’s activities were not connected to Swissport Canada Handling and that it would forgo work for the airline Polish LOT, an airline for which Swissport Canada Handling performs ramp and passenger services.
[15] Between August 14, and August 27, 2017, the Union and AirTime Express followed the agreement.
[16] On August 26, 2017, the Union entered into a Picketing Protocol with the GTAA. AirTime Express was not part of the negotiations, and it was not advised of the terms of the Protocol.
[17] On August 27, 2017, the Union revoked the agreement it had with AirTime Express and the picketers began to communicate with and delay the employees of AirTime Express attempting to get to work. The Union says it did so because Mr. Giannone and Mr. Badial witnessed activities that led them to believe that AirTime Express was assisting Swissport Canada Handling.
[18] The alleged conduct is, however, denied by AirTime Express, but, in any event, the Union no longer felt bound to give a right of uninterrupted passage to the employees and vehicles of AirTime Express.
[19] The evidence of AirTime Express, some of it arguably hearsay, is that the picketers began to target AirTime Express’s vehicles and to obstruct and interfere with its employees entering AirTime Express’s premises at Pearson International Airport. AirTime Express says that there were long delays and its business operations were seriously disrupted.
[20] On August 29, 2017, Roger Levesque, Chief Operating Officer at AirTime Express, contacted the Peel Regional Police Service to obtain police assistance with regards to the maintenance of a safe picket line. Mr. Levesque spoke with Constable Sean Piper, who is a labour liaison police officer. Constable Piper advised Mr. Levesque that the police service must remain neutral and that he understood that there was an operative Picketing Protocol. Under these circumstances, the police service was not prepared to get involved in policing the picket line activities.
[21] On August 31, 2017, AirTime Express brought a motion for an interlocutory injunction.
[22] Meanwhile, on September 5, 2017, in other proceedings brought by the GTAA (Greater Toronto Airport Authority v. Teamsters Local Union No. 419, Court File No. CV-17-582076), Justice Firestone granted an interlocutory injunction that incorporated the Picketing Protocol.
[23] The Order of Justice Firestone included the following term:
- The only exceptions to the general prohibition against picketing on GTAA Property provided for in paragraph 1 of this Order are detailed in the chart below. References to location number in the left hand column of the chart refer to numbered locations identified on the map attached as Appendix “A” to this Order:
Loc’n No. Locations Where Picketing Permitted No. Picketers Times 6. Information Picket – Infield Cargo (aka Cargo 2/3)
(a) Information picketing may take place at the intersection of Fifth Line Road and Britannia Road [sic – the reference is meant to be to the main Britannia Rd. entrance.]
(b) No vehicle shall wait longer than five (5) minutes at the entrance.
(c) No vehicle shall wait longer than twenty (20) minutes in total in the line and shall be permitted immediate entry once the maximum time is reached.
(d) The “total [time] in line” in (c) is defined as the moment a vehicle joins the line, regardless of the location where the vehicle joins the line, until such time the vehicle passes the intersection set out in (a).
(e) No vehicle shall be delayed leaving the Cargo 2/3 area.0-50 24 hours
C. Labour Relations Injunctions
[24] Picketing is a form of freedom expression that draws constitutional protection, but the protection is not absolute and freedom of expression may be curtailed when its harm outweighs its benefit: Pepsi-Cola Canada Beverages (West) Ltd v. R.W.D.S.U, Local 558, 2002 SCC 8, [2002] 1 S.C.R. 156.
[25] While picketing is presumptively legal, it is impermissible where it breaches the criminal law or is trespass, nuisance, intimidation, defamation or misrepresentation: Pepsi-Cola Canada Beverages (West) Ltd v. R.W.D.S.U, Local 558, supra; Long Lake Forest Products Inc. v. United Steelworkers Local 2693, [2006] O.J. No. 4133 (S.C.J.); Vale Inco Ltd. v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers, Local 6500, 2010 ONSC 1774; Brookfield Properties Ltd. v. Hoath, 2010 ONSC 6187; Alumicor Ltd. v. USW, 2011 ONSC 1707; Sobeys v. UFCW-Canada, Local 175, 2013 ONSC 1207.
[26] The normal test for an interlocutory injunction in a labour dispute is derived from (a) RJR-MacDonald Inc. v. Canada, 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311 and (b) s. 102 of the Courts of Justice Act, R.S.O. 1990, c. C.43, which specifically governs injunctions in labour disputes. Section 102 states:
Injunction in labour dispute
Definition
102 (1) In this section,
“labour dispute” means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
Notice
(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice.
Steps before injunction proceeding
(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.
Evidence
(4) Subject to subsection (8), affidavit evidence in support of a motion for an injunction to restrain a person from an act in connection with a labour dispute shall be confined to statements of facts within the knowledge of the deponent, but any party may by notice to the party filing such affidavit, and payment of the proper attendance money, require the attendance of the deponent to be cross-examined at the hearing.
Interim injunction
(5) An interim injunction to restrain a person from an act in connection with a labour dispute may be granted for a period of not longer than four days.
Notice
(6) Subject to subsection (8), at least two days notice of a motion for an interim injunction to restrain a person from any act in connection with a labour dispute shall be given to the responding party and to any other person affected thereby but not named in the notice of motion.
Same
(7) Notice required by subsection (6) to persons other than the responding party may be given,
(a) where such persons are members of a labour organization, by personal service on an officer or agent of the labour organization; and
(b) where such persons are not members of a labour organization, by posting the notice in a conspicuous place at the location of the activity sought to be restrained where it can be read by any persons affected,
and service and posting under this subsection shall be deemed to be sufficient notice to all such persons.
Interim injunction without notice
(8) Where notice as required by subsection (6) is not given, the court may grant an interim injunction where,
(a) the case is otherwise a proper one for the granting of an interim injunction;
(b) notice as required by subsection (6) could not be given because the delay necessary to do so would result in irreparable damage or injury, a breach of the peace or an interruption in an essential public service;
(c) reasonable notification, by telephone or otherwise, has been given to the persons to be affected or, where any of such persons are members of a labour organization, to an officer of that labour organization or to the person authorized under section 94 of the Labour Relations Act, 1995 to accept service of process under that Act on behalf of that labour organization or trade union, or where it is shown that such notice could not have been given; and
(d) proof of all material facts for the purpose of clauses (a), (b) and (c) is established by oral evidence.
Misrepresentation as contempt of court
(9) The misrepresentation of any fact or the withholding of any qualifying relevant matter, directly or indirectly, in a proceeding for an injunction under this section, constitutes a contempt of court.
Appeal
(10) An appeal from an order under this section lies to the Court of Appeal without leave.
[27] Pursuant to s. 102(3) of the Courts of Justice Act, 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, and if this precondition is not satisfied, the court cannot grant an injunction: Industrial Hardwood Products (1996) Ltd. v. Industrial Wood and Allied Workers of Canada, Local 2693 (2001), 1985 CanLII 2228 (ON SC), 52 O.R. (2d) 694 (C.A.); Cancoil Thermal Corp. v. Abbott, [2004] O.J. No. 3016 (S.C.J.); Hydro One Inc. v. Rattal, [2005] O.J. No. 2998 (S.C.J.).
[28] In the context of a labour dispute, for the court to grant an interlocutory injunction, the plaintiff must establish that: (1) it has a strong prima facie case; (2) it will suffer irreparable harm that cannot be adequately compensated by damages; and (3) the balance of convenience in granting or refusing the injunction favours its position over that of the defendant: Sobeys v. UFCW-Canada, Local 175, supra; Bombardier Transportation Canada Inc. v. Unifor, 2014 ONSC 4635; Ogden Entertainment Services v. Retail, Wholesale Canada Service, U.S.W.A. Local 440, 1998 CarswellOnt 2022 (O.C.J.).
D. Discussion and Analysis
[29] In the immediate case, I need not and I shall not determine whether the Union was justified in abandoning the agreement or accommodation it had reached with AirTime Express. That agreement gave special treatment to the employees and vehicles of AirTime Express, but AirTime Express’s action is not an action to enforce a contract; rather it is an action in aid of a claim for an injunction to stop informational picketing that is causing harm to AirTime Express’s business in circumstances where AirTime Express is not a party to the labour dispute.
[30] In these circumstances, the issues to be decided are the typical ones where a third party to a labour dispute seeks an injunction to restrain picketing.
[31] The Union submits that AirTime Express’s motion should be dismissed because from an evidentiary perspective, AirTime Express has not met the evidentiary burden of proving the constituent elements of the RJR-MacDonald Inc. v. Canada test for an interlocutory injunction.
[32] There would be some traction to this submission but for the fact that Justice Firestone has already granted an interlocutory injunction, and, thus the Defendants are estopped from disputing that there is an evidentiary basis for restraining picketing at the Pearson International Airport including the picketing that was taking place at the Britannia Rd. intersection, which picketing is covered by Justice Firestone’s Order.
[33] Practically speaking, the GTAA, which is the landlord of AirTime Express and the other tenants located in the Infield Cargo area of the Airport, brought the injunction motion on behalf of its tenants whose rights of ingress and egress and whose rights of quiet enjoyment of their premises was being interfered with.
[34] Practically speaking, AirTime Express is a privy to its landlord’s motion, and the Union is estopped from denying that AirTime Express has met the evidentiary burden of the RJR-MacDonald Inc. v. Canada test for an interlocutory injunction in the context of a labour dispute.
[35] I, therefore, conclude that AirTime Express qualifies for an interlocutory injunction, and the issue turns to the scope and terms of that injunction.
[36] In this last regard, AirTime Express seeks a much broader and intrusive order than the order granted by Justice Firestone. The Union, however, argues that AirTime Express is adequately protected by Justice Firestone’s Order. The Union argues that AirTime Express has not made a case for special treatment or for a more extensive and intrusive order that would unduly interfere with the employees’ constitutionally protected rights of freedom of expression.
[37] I agree with the Union’s submission. Put in other words, the outcome reached by Justice Firestone should also apply to AirTime Express’s circumstances.
E. Conclusion
[38] An interlocutory injunction shall issue as set out above.
[39] If the parties cannot agree about the matter of costs, they may make representations in writing beginning with AirTime Express’s submissions within 20 days of the release of these Reasons for Decision, followed by the Defendants’ submissions within a further 20 days.
Perell, J.
Released: September 12, 2017
CITATION: AirTime Express Inc. v. Teamsters Local Union No. 419, 2017 ONSC 5401
COURT FILE NO.: CV-17-581674
DATE: 20170912
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
AIRTIME EXPRESS INC.
Plaintiff
– and –
TEAMSTERS CANADA and its LOCAL 419, HARJINDER BADIAL, BRIAN LAWRENCE, JOHN GIANNONE and UNIDENTIFIED PICKETERS
Defendants
REASONS FOR DECISION
PERELL J.
Released: September 12, 2017