Court File and Parties
COURT FILE NO.: CV-18-609885-00CL DATE: 2018/12/05 SUPERIOR COURT OF JUSTICE – ONTARIO COMMERCIAL LIST
RE: CANADA POST CORPORATION AND: JOHN DOE, JANE DOE, and OTHER PERSONS, NAMES UNKNOWN, who have been trespassing, picketing, or obstructing at or near the premises of the Plaintiff located at 393 Millen Road in Hamilton, Ontario, 11910 Tecumseh Road East in Windsor, Ontario and other premises of the Plaintiff elsewhere in Ontario
BEFORE: Hainey J.
COUNSEL: Christopher J. Rae and Mitch Stephenson, for the Moving Party David Migicovsky, for the Peel Regional Police
HEARD: December 3, 2018
Amended Endorsement
Background
[1] On Friday, November 30, 2018 Canada Post Corporation brought an urgent motion before me seeking an injunction to prohibit protestors from blockading Canada Post’s mail processing plants in Hamilton, Windsor and elsewhere in the Province of Ontario.
[2] I granted the injunction and gave oral reasons for my decision in court that day.
[3] In my reasons for decision I concluded as follows:
It is clear to me that these protests are not against Canada Post, but are against the federal government’s back-to-work legislation. This is clear from Exhibit E to Mr. Caswell’s affidavit that shows the protestors focusing their complaint at our Prime Minister, Justice Trudeau. It is also clear that the respondents have no business or contractual relationship with Canada Post.
The premises that are being blockaded are not the premises of the respondents’ employer. This is therefore not a labour injunction. The respondents, although they appear to be members of organized labour groups, are not employees of Canada Post. They are unrelated third parties seeking to advance a political agenda, namely, their dissatisfaction in opposition to back-to-work legislation that was recently passed by Parliament.
I have concluded that the respondents who have no direct relationship with Canada Post do not have a right to blockade Canada Post’s premises, or interfere with the freedom of movement of its employees as a means of protesting Parliament’s actions.
The evidence clearly establishes that the respondents are delaying the delivery of mail. This is a criminal offence under Section 50 of the Canada Post Corporation Act which provides that “Every person commits an offence who, without reasonable cause, refuses to permit or delays permitting any mail or mail conveyance to pass on or use any road, ferry or other route or mode of transport access to which is under his control.”
The activity described by the witnesses in the motion record, in my view, clearly falls within the meaning of Section 50 of the Canada Post Corporation Act. Accordingly, I have concluded that the respondents’ activities are not a labour dispute and are clearly unlawful.
[4] On Saturday, December 1, 2018, protestors blockaded Canada Post’s sorting facility at 4567 Dixie Road in Mississauga, Ontario, commonly known as the “Gateway”. This facility is described as the “epicenter of mail delivery in Canada”. It operates twenty-four hours per day, seven days per week and processes millions of pieces of letter and regular mail and parcels each day.
[5] In accordance with my order, Canada Post sought the assistance of the Sheriff’s office of the Region of Peel to enforce my injunction order and end the blockade of its premises.
[6] Enforcement officers from the Ministry of the Attorney General deployed by the Sheriff’s office in Peel Region attended at the Gateway and read my order to the protestors. The protestors refused to comply with my order and continued blockading Canada Post’s Gateway facility.
[7] The Sheriff sought the assistance of the Peel Regional Police to enforce my order. The assistance of the police in enforcing the order is contemplated by para. 3 of my order which states as follows:
- THIS COURT ORDERS that the Sheriff is hereby directed to forthwith enforce all terms of this order, and in particular (without limiting the foregoing) to ensure that there is no obstruction or interference of any kind, and for any period of time, to the entrances and exits to the Plaintiff’s Premises, and to seek the assistance of the police to accompany the Sheriff and assist in the execution and enforcement of the terms of the order.
[8] According to Canada Post the Peel Regional Police did very little to assist in enforcing my order on December 1, 2018 at the Gateway facility.
The Current Motion
[9] As a result, Canada Post brought an urgent motion at 6:30 p.m. on Saturday, December 1, 2018 before my colleague, McEwen J., for directions and advice, and, if required, an amendment to my order “with respect to the manner and means by which police services (including the Peel Regional Police) are to assist in the enforcement” of my order.
[10] Justice McEwen heard evidence from a representative of the Peel Region Sheriff’s office. According to Canada Post’s counsel, the Sheriff’s representative testified that Peel Regional Police did not assist the Sheriff’s officers to enforce my order. As a result, Justice McEwen added the following paragraphs to my order:
THIS COURT ORDERS that any police service or peace officer be and hereby is authorized to arrest, or arrest and remove, any person who has knowledge of this Order and who the police service or peace officer has reasonable and probable grounds to believe is contravening or has contravened the provisions of this order, and, for greater certainty, such a police service or peace officer retains his or her discretion to decide whether to arrest or remove any person pursuant to this order.
THIS COURT ORDERS that any police service or peace officer who arrests or arrests and removes any person pursuant to this Order be authorized to:
(a) release that person from arrest upon that person agreeing in writing to abide by this Order and to appear before this Court at such time and place as may be fixed for the purpose of being proceeded against for contempt of Court or fixing a date for such proceeding;
(b) where such person has refused to give a written undertaking to abide by this Order or to appear before this Court, or where in the circumstances the peace officer considers it appropriate, to bring forthwith such person before this Court in Toronto, Ontario, or such other place as the Court may direct, for the purpose of being proceeded against for contempt of Court or for fixing a date for such proceeding; or
(c) detain such person in custody until such time as it is possible to bring that person before this Court.
THIS COURT ORDERS that the Police Chief, Jennifer Evans, or her suitable delegate, of The Peel Region Police, attend before Justice Hainey on Monday, December 3, 2018 at 330 University Avenue, Courtroom 8-6 at 9:00 a.m. to provide evidence as to what steps the police took, or did not take to assist the Sheriff in enforcing the Order of Justice Hainey dated November 30, 2018 and in particular, paragraph 3 of that Order.
THIS COURT ORDERS that the Plaintiff serve a copy of this Order on Peel Regional Police immediately via email to Sharon Wilmot, counsel to Peel Regional Police.
[11] On Monday, December 3, 2018 the Deputy Chief of Peel Regional Police, Marc Andrews, and Constable Sean Piper attended before me with counsel for Peel Regional Police, Mr. Migicovsky. Counsel for Canada Post also attended.
[12] Mr. Migicovsky disputed Canada Post’s assertion that Peel Regional Police took no steps to enforce my order. He described for the court the steps that Peel Regional Police, and in particular, Constable Piper, took in response to the protestors’ actions.
[13] Mr. Migicovsky indicated that the police force would not have been aware of my conclusions that the protest activity was not a labour dispute and was likely a breach of Section 50 of the Canada Post Corporation Act and was therefore unlawful conduct. This is understandable because the transcript of my oral reasons for decision delivered in court on November 30, 2018 was not released until Monday, December 3, 2018. Mr. Migicovsky undertook to review my reasons for decision with management of the Peel Regional Police.
[14] Mr. Migicovsky submitted that the court cannot interfere with the police’s operational discretion in investigating and enforcing violations of the law. Accordingly, Mr. Migicovsky maintained that I cannot make the order sought by Canada Post specifying “the manner and means by which police services (including the Peel Regional Police) are to assist in the enforcement” of my order.
Analysis
[15] The jurisprudence is clear that the court cannot direct the police to enforce an order arising out of a civil proceeding such as this. The Court of Appeal for Ontario confirmed this in Odgen Entertainment Services v. Retail Wholesale Canada, Canadian Service Sector, U.S.W.A. Local 440, (1998) 1998 1441 (ON CA), 38 O.R. (3d) 448.
[16] Justice R. Gordon was faced with a similar situation in Vale Inco Ltd. v. U.S.W. Local 6500, 2010 Carswell Ont. 3303 where protestors were blockading entrances to Vale Inco Ltd.’s mines. He was asked to direct the Greater Sudbury Police Service to enforce an injunction order that he had previously made. At para. 11 of his reasons for decision he stated as follows:
- In the face of this case law which, I would suggest, offers a clear view of what I can and cannot do, I am faced with Vale’s very legitimate concern that it is in legal limbo. Although it has an order, it has no way to enforce it other than contempt proceedings. Contempt proceedings, by their nature, require notice to persons alleged to be in contempt and require procedural fairness which is likely to result in some delay in the proceedings. All the while, access to certain of its premises is restricted, vast economic loss is incurred, many persons are deprived of their right to earn a living and public safety is put at risk due to the volatility of some of the industrial operations which are involved.
[17] Justice Gordon’s comments apply equally to this situation. Canada Post is attempting to comply with its statutory duty to deliver mail to Canadians throughout the country in a timely manner. The protestors are unlawfully interfering with its ability to do so. Their conduct may amount to a criminal offence under the Canada Post Corporation Act.
[18] The Protestors are openly and intentionally violating my order in protest of the Government’s back-to-work legislation. It may be difficult for Canadians, who count upon the timely delivery of mail by Canada Post, particularly during the holiday season, to understand why police forces, such as the Peel Regional Police, choose not to take more active steps to enforce a court order designed to ensure that mail services are not disrupted by unlawful protests.
[19] However, courts cannot direct the police how to carry out their policing mandate. The only remedy available, as Justice Gordon observed, is the power to hold persons who violate court orders in contempt. Unfortunately, this can be a lengthy and time-consuming process.
[20] Although a number of the protestors have identified themselves, Canada Post has not pursued contempt proceedings against any of them. Given the current state of the jurisprudence this appears to be the only remedy available to Canada Posts under the circumstances.
Conclusion
[21] For all of these reasons I must dismiss Canada Post’s motion for an order directing the manner and means by which police services (including The Peel Regional Police) are to assist in the enforcement of my injunction order.
[22] Under the circumstances, there shall be no order as to costs of the motion.
[23] I am grateful to counsel for their helpful submissions.
Hainey J. Date: December 5, 2018