Court File and Parties
OSHAWA COURT FILE NO.: CV-19-0307 DATE: 20190426 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
General Motors of Canada Company Plaintiff – and – Unifor Canada, Unifor Local 88, Unifor Local 199, Unifor Local 222, Unifor Local 636, Jerry Dias, Greg Moffatt, Colin James, VP Protection Inc. and Other Presently Unidentified Picketers Defendants
Counsel: David Bannon and Allyson Fischer, for the Plaintiff/Moving Party Anthony Dale, for the Defendants/Responding Parties
HEARD: January 25 and 29, 2019
Reasons for Decision
MULLINS J.:
Background
[1] On Friday, January 25, 2019, the plaintiff sought an injunction to restrain the defendants from obstructing access to its headquarters. By the time the motion began to be heard and well before the hearing was completed, the obstructions had been cleared.
[2] General Motors designs, manufactures, and sells motor vehicles, parts, accessories, and services. Its Canadian Headquarters (CHQ) is at 1908 Colonel Sam Drive, in Oshawa. There are almost 1000 people who ordinarily work in the premises. The administration offices of GM normally operate between 7:00 a.m. and 5:00 p.m., Monday through Friday.
[3] Ontario Power Generation Inc. (OPG) occupies space in the CHQ building and employs some 400.
[4] Concentrix provides customer services to GM, including emergency and other roadside services to GM’s OnStar customers. Concentrix employees work either from the CHQ, or an adjacent building to which access must be gained through Colonel Sam Drive. Colonel Sam Drive provides the only vehicular access point to the CHQ. There are more than 400 vehicles, including public transit and delivery, as well as vehicles for personal use, on that roadway each workday.
[5] In late November of 2018, GM announced that no further product would be allocated to the plant located in Oshawa. The plant is scheduled to close in late 2019. There are approximately 2642 people employed at the plant, building the Chevrolet Impala, Cadillac XTS, Chevrolet Silverado, and GMC Sierra model motor vehicles.
[6] GM and Unifor Canada and the defendant Locals, are parties to a Master Collective Agreement that is effective between September 26, 2016 and September 19, 2020. None of the parties to this proceeding were, therefore, in a legal strike or lock-out position at the time of the events of concern to this proceeding.
Labour Disruptions
[7] Labour disruption occurred at the Oshawa Plant on November 26, 2018. Among the disruptions was a call for members of Local 222 to attend at the Union Hall. On January 9, 2019, there was further work disruption, when workers sat down and refused to work. There was a blockade of vehicles at the plant on January 17, 2019.
[8] Jerry Dias is the President of Unifor Canada. Greg Moffatt is the Plant Chair for the GM Oshawa Plant. Colin James is the President of Unifor Local 222.
[9] On January 23, 2019, a blockade of the roadway to 1908 Colonel Sam Drive began. Two checkpoints were operated by the defendant, VP Protective Inc. at which, operators of vehicles were directed to stop and identify themselves. If they identified themselves as employees of GM, they were told that their access was being denied. A picket line was present. There were tents, portable toilets, and burn barrels in place. Many visible in video recordings sported Unifor regalia.
[10] Jeffrey Scratch, the Global Security Manager, was the only GM employee who was able to get into CHQ during the blockade. After some delay, OPG employees were allowed in. Some 150 GM employees reported to work at the Concentrix facility. It was conceded by the defendants that reasonable notice of this proceeding was given by telephone. On behalf of the defendants, Mr. Dale advised the court, during the hearing, that the blockade was being dismantled.
[11] The granting of an injunction pursuant to s. 102(8) requires the court to be satisfied that the case is otherwise a proper case for the granting of an interim injunction and 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 interruption in an essential service.
[12] The plaintiff served a Motion Record containing the affidavit evidence of six witnesses. The defendants, in accordance with the provisions of s.102, insisted that oral evidence be received and that the requirements of the Act would not be met by cross examination of the deponents by the defendants. The hearing of the evidence took some time, as Mr. Scratch, Mr. Kelly, Ms. Drumm, Mr. Hickey, Mr. Chronis, and Ms. Tytler were called to testify. The evidence given in their testimony, as well as their affidavits and the exhibits thereto, form the basis for the findings of fact found herein.
[13] It is clear from the evidence that GM made repeated efforts to obtain the attendance of the Durham Regional Police to clear the obstruction of the public roadway to the CHQ. GM was advised that in keeping with the labour dispute policies of the DRP, they would maintain a presence at the blockade but would not intervene. The City of Oshawa erected temporary fencing on the site but also did not intervene to remove any obstruction of the roadway.
[14] Mr. Scratch witnessed the activities of those involved in the blockade. He saw Jerry Dias, Greg Moffatt, and Colin James at the picket line that formed part of the blockade of CHQ premises, on January 23, 2019. Mr. Dias gave a press conference. A video of what transpired at the press conference was tweeted from the Unifor account. Messrs. Dias, Moffatt, and James are visible in the video, in the midst of picketers.
[15] The interruption of access to and performance of work at the CHQ, deposed Mr. Scratch, has and will cause GM significant financial and reputational harm. It has an impact on GM’s ability to service OnStar users. Security of the physical facilities, documents, and information is at risk. Without irony, he deposed:
The automotive industry is highly competitive, with numerous companies vying for customer purchases.
[16] Evidence from the call centre manager for GM, independent security, and maintenance providers confirms that inspections and routine maintenance of boilers and fire protection equipment were disrupted at the CHQ from the 23rd to the 25th of January. Service to customers through OnStar was slowed, resulting in fewer calls being answered, not in keeping with standards that are, by design, intended to provide timely and effective responses to calls for emergency and non-emergency services alike. Although GM has contingency plans, these were largely ineffective in the circumstances created by the blockage.
[17] Mr. Dale submits that until a representation order is made at an appropriate time, the defendant unions may not be enjoined as they are not legal entities.
[18] The appropriate order, if any, is to restrain any suitably named party, and any person having knowledge of the order.
[19] Between January 23rd and January 25th, 2019, the evidence establishes that only one employee of GM was allowed access to CHQ as a result of the two checkpoints and the presence of a picket line, on or near the single public roadway. Several hundred employees were not able to get to work; about one hundred and fifty of them went to the nearby facilities of Concentrix, but, on the evidence, were unable to work because of incompatible IT platforms and delivery of headsets to Concentrix that would have allowed them to work was obstructed.
[20] GM had announced that no work would be allocated to the Oshawa Assembly Plant. The employees of these plants were the subject of a valid Collective Agreement between GM and Unifor. The blockage and picketing was not, therefore, in service of the rights of unionized employees when on strike or locked out. There is direct firsthand and recorded evidence that the defendants, Dias, Moffatt, and James are senior union leaders, who were present at the picket line. Mr. Dias had publicly called for job action against GM in response to GM’s announcement of the plant closure in Oshawa. A video tweet provided Mr. Moffatt’s view that the picketing of January 23 was intended to send a message to GM.
The Law
[21] As relied by Hackland J. in Cancoil Thermal Corporation v. Abbott, [2004] O.J. No. 3016, the analysis of the statutory requirements governing injunctions in a labour dispute requires the court to consider:
- Whether the application has established a prima facie case;
- Whether there exists irreparable harm in the sense that monetary damages would not constitute adequate compensation; and
- The balance of convenience favours the gravity of injunctive relief, bearing in mind the relief is extraordinary in nature and is a discretionary remedy.
[22] In Aramark v. Canada Ltd. v. Keating, [2002] O.J. No. 3505, at para. 25, Hill J. discussed the nature of injunctive relief:
An injunction is an equitable remedy. It is a blunt instrument of coercive authority. As an extraordinary remedy, the court must exercise principled caution in the exercise of its discretion to grant such relief. The moving parties are required to demonstrate a substantial or serious triable issue, that irreparable harm non-compensable by damages will be suffered if injunctive relief is denied prior to trial, and that the balance of convenience supports the grant of the injunction sought.
[23] The obstruction of the public roadway and the indiscriminate denial of access to premises of all, including fire safety inspectors by Imperial Security forces is, at the least, a nuisance.
[24] The disruption of the work of almost 1000 GM employees from a Wednesday to a Friday caused delay and a decline in efficiencies of the services GM provides to its customers and dealers. The plaintiff has established a prima facie case.
[25] While there is evidence that a prolonged obstruction could cause irreparable harm, due to the potential failure of safety systems, the evidence is insufficient to establish that damages would not be adequate. The systems are routinely inspected and it may be assumed that a few days miss would not create undue risk. The picketing and blockage were carried out peacefully. Such use of the roadway, as was taking place, was safeguarded by the presence of security personnel retained by the picketers and the fencing erected by the City. The police were on hand.
[26] A mature, robust, and stable democracy should be able to withstand some short-term challenges to civility and the right to use a public road, in certain circumstances. The livelihoods of the autoworkers in Oshawa, and the welfare of their families and community, are at stake in the decisions of the plaintiff. It cannot be said that any harm associated with the protests of the union leadership outweighs the expression of protest between January 23rd and 25th, 2019. Given the claim for damages made, it may be presumed that the respondents will not take this order to have condoned the disruptive conduct they fostered.
[27] In these extraordinary circumstances, therefore, the court declines to exercise discretion in favour of the plaintiff.
[28] Given this outcome the parties may, if they choose, make brief written submissions within 30 days as to costs.
Justice A.M. Mullins Released: April 26, 2019
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: General Motors of Canada Company Plaintiff – and – Unifor Canada, Unifor Local 88, Unifor Local 199, Unifor Local 222, Unifor Local 636, Jerry Dias, Greg Moffatt, Colin James, VP Protection Inc. and Other Presently Unidentified Picketers Defendants REASONS FOR DECISION Justice A.M. Mullins