Windsor Salt Ltd./Sel Windsor Ltée., 2023 ONSC 1431

Court File and Parties

COURT FILE NO.: CV-23-00031872 DATE: 2023/03/06 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: WINDSOR SALT LTD./SEL WINDSOR LTÉE, Plaintiff AND: UNIFOR, AND ITS LOCAL 1959 AND ITS LOCAL 240, JAMES GATTO (a.k.a. JIM GATTO), and OTHER PRESENTLY UNIDENTIFIED PICKETERS, Defendants

BEFORE: Justice I.F. Leach

COUNSEL: Brian MacDonald and Laura J. Freitag, for the Plaintiff A. Dale, for the defendants UNIFOR, and its Local 1959 and its Local 240

HEARD: February 27, 2023

Endorsement

Introduction

1This matter was added to my docket on an emergency basis last Monday, (February 27, 2023), for an urgent hearing of the plaintiff’s motion seeking an interim injunction in relation to matters stemming from a labour dispute.

2The following day, I made an Order granting injunctive relief on an interim basis; an Order which, barring further order of the court, would expire this past Saturday, (March 4, 2023), at 1:00pm.

3At the request of the parties and on consent, a further Order nevertheless was made on March 2, 2023, whereby the relief granted in my initial order would be renewed and continue until 5:00pm on Tuesday, March 7, 2023. [1]

4My initial Order was released to the parties as an attachment to a short formal endorsement, wherein I indicated that I had made that Order for reasons to follow. These are those reasons.

Further Background

5Before making my initial Order, I had conducted a thorough review of the substantial motion material filed by the plaintiff, as well as material that counsel for the responding union and its locals was able to provide during the course of the hearing. I also gave thorough consideration to the additional evidence presented by the witnesses who testified during the course of the hearing before me, and to the oral submissions I received from counsel.

6My failure to mention all of the facts, authorities and submissions presented for my review and consideration should not suggest otherwise.

7However, these reasons necessarily will be less expansive than they might have been, owing to:

a. the advisability of providing the parties and any subsequent judge dealing with the matter with my reasons as soon as possible, given the apparent intention of the plaintiff to seek an interlocutory injunction before the agreed renewal of my initial interim Order expires; and

b. the reality that these reasons necessarily have been prepared while I continue to deal with other pressing matters on my previously set docket.

8With those caveats in mind, the background and overall context for the hearing before me may be summarized as follows:

a. The plaintiff corporation extracts and refines salt from two facilities located in the city of Windsor, Ontario; i.e., a salt mine identified by its municipal address as 200 Morton Street and an evaporation plant identified by its municipal address as 30 Prospect Avenue. The salt and refined salt products produced at and distributed from the two facilities have various commercial, agricultural and industrial uses; e.g., in households, food production and industrial use on roads.

b. Many of those who work at the plaintiff’s two facilities in Windsor are members of the defendant union, Unifor, and of two of Unifor’s “local” union organizations, i.e., the defendants Local 1959 and Local 240. In particular:

i. Local 1959 has been certified by the Ontario Labour Relations Board (“the OLRB”) to represent approximately 170 employees who work at the mine, and approximately 70 employees who work at the evaporation plant, in collective bargaining with the plaintiff.

ii. Local 240 is the OLRB-certified collective bargaining agent for approximately 10 employees employed by the plaintiff in a clerical capacity.

c. The union-represented employees were in a position to commence a legal strike as of February 17, 2023, and did so.

d. A week ago this past Friday, (i.e., on the afternoon of February 24, 2023), plaintiff counsel contacted the office of the Windsor trial co-ordinator seeking a hearing in this court on an emergency basis, as soon as possible, to address a motion by the plaintiff for an order granting injunctive relief that was said to be urgently needed. Arrangements were made to accommodate that request on an urgent basis.

e. Late that afternoon, (i.e., on Friday, February 24, 2023), I was contacted in London, was asked to sit virtually in Windsor the following Monday morning to deal with the matter on an urgent basis, (which I agreed to do), and was provided with copies of the plaintiff’s issued notice of action and notice of motion. The balance of the plaintiff’s motion material was not yet available, and had not been received by the time the court office closed for the weekend.

f. According to affidavits of service subsequently filed with the court, (when the court office reopened after its closure for the weekend), efforts made by the plaintiff to bring its notice of action, motion record and factum to the attention of the defendants included the following:

i. Between 2:09pm and 3:15pm on Sunday, February 26, 2023, a process server named Mr Vallillee attempted to deliver copies of that material to Unifor offices located at 140 Pickering Drive in the Town of Amherstburg, Ontario, and at 3400 Somme Avenue, in the City of Windsor. However, both offices appeared to be closed, unoccupied, and lacking in any visible mailbox, so no copies were left at either location. The process server then proceeded sequentially to the location of apparent picketing activity at or near the plaintiff’s property/facilities at 30 Prospect Drive in the City of Windsor, followed by an attendance at the location of apparent picketing activity at or near the plaintiff’s property/facilities at 200 Morton Drive in the City of Windsor. At both locations, the process observer noted the presence of a white corrugated metal temporary office structure set up with an attached “Unifor” sign, and a number of individuals who appeared to be engaged in picketing. At both locations, the process server asked to speak with a “strike captain”, (also known as a “picket captain” or “picketing captain”), but none of the assembled individuals at either location would identify who might be acting in that capacity. An individual at the Prospect Drive location did identify himself as being “in charge”, (albeit without providing his name), and the process server presented him with an envelope containing the plaintiff’s material. Various other individuals at that location who appeared to be engaged in picketing were offered further envelopes containing the plaintiff’s material but declined to accept them, resulting in the process server leaving the envelopes at their feet. None of the individuals at that location would provide their names. A similar experience occurred when the process server then attended at the Morton Drive location, where no one identified as a strike captain in response to the process server’s inquiries in that regard, and none of the individuals engaged in apparent picketing activity to whom the process server spoke would confirm or provide their names or full names; i.e., with one individual being variously identified as “Gary” or “Rick”, and other individuals declining to provide any name at all. The process server was able to hand an envelope containing the plaintiff’s material to two of those individuals, after which further individuals refused to accept them, resulting in the process server leaving the envelopes at their feet before he was asked to leave.

ii. At approximately 3:56pm on Sunday, February 26, 2023, Brian Christensen, an American attorney apparently employed by the plaintiff’s parent company, provided a “courtesy copy” of the plaintiff’s material to Mario Moceri, a Unifor representative, through the sending of an email that provided Mr Moceri with a “link” to a website, (apparently a secure website maintained by the plaintiff’s Canadian lawyers), through which electronic copies of the plaintiff’s motion material could be accessed.

g. Late in the afternoon of Sunday, February 26, 2023, I received access to the plaintiff’s substantial motion record and factum when the Windsor trial co-ordinator kindly relayed a copy of email correspondence received by her from the plaintiff’s Canadian counsel, providing access to the same secure website.

h. The material relied upon by the plaintiff was substantial, and I will not attempt to summarize all of its content here. However, by way of a general overview:

i. In addition to the plaintiff’s notice of action and factum, the plaintiff relied on material set forth in its motion record.

ii. The plaintiff’s motion record included a notice of motion and eight affidavits, each sworn by a different individual and all but one attaching exhibits. In particular, sworn affidavits were provided by the following individuals:

1. Albert Amoah, general manager of the plaintiff’s evaporation plant located at 30 Prospect Avenue in the City of Windsor;

2. Pierre-Yves Girard, general manager of the plaintiff’s salt mine located at 200 Morton Drive in the City of Windsor;

3. Glenn Van Alstyne, a supervisor and private investigator employed by Corporate Investigation Services Ltd., (“CIS”), which the plaintiff had contracted to provide security and investigative services during the current ongoing labour dispute between the plaintiff and its Unifor-represented employees;

4. Albert Martin Pateman, a driver employed by CIS;

5. Timothy James Filyer, a private investigator employed by CIS;

6. Mary Edna Whelton, a supervisor and private investigator employed by CIS;

7. Vincenzo Calandra, the human resource manager at the plaintiff’s salt mine located at 200 Morton Drive in the City of Windsor; and

8. Kristen Lausman, who is employed by the plaintiff’s parent corporation, Morton Salt Inc., as a director of transportation.

iii. I will not attempt to summarize each of those affidavits in detail here. For present purposes, suffice it to say that I reviewed the contents of each affidavit in detail, and am mindful of precisely what was and was not said by each affiant. The overview that follows, highlighting in one place the more significant aspects of the information provided therein, but necessarily omitting reference to certain details, should not suggest otherwise. However, with those caveats in mind, I note that the information and allegations set forth in the affidavit material included the following:

1. Details, (including large and coloured aerial photographs), were provided concerning the geographic location, configuration of buildings and nature of plaintiff business operations at the relevant evaporation plant and salt mine properties. I note that both properties are situated along the eastern shore of the Detroit River, which separates Ontario from the state of Michigan.

2. Similar details were provided concerning the location of access and egress points on each property, (generally limited to one roadway access point in each case), and the configuration of roadways and railways surrounding and leading to the two properties.

3. Information was provided indicating and confirming the number of Unifor-represented workers employed at each location, their certified bargaining representation, and the commencement of their legal strike on February 17, 2023.

4. Information was provided concerning efforts made by the plaintiff to prepare for and adapt during the labour dispute, with:

a. the evaporation plant continuing to operate “as much as practicable” through use of two alternating 10-person teams of management and non-unionized employees, with each team working 12 hours on and 12 hours off for three days in a row before being relieved by the other team; and

b. the mine being transitioned temporarily into “care and maintenance mode” for the time being, with further production from the mine currently halted, and management and non-unionized employees focusing on stabilization and necessary ongoing maintenance of the facility, (e.g., through frequent lubrication to prevent equipment from “seizing up”), although there is already-mined salt at the mine location which the plaintiff can transport and wishes to transport to its customers.

5. Details were provided in relation to the picketing activity observed and/or experienced at the plaintiff’s evaporation and salt mine properties since the strike began, including indications:

a. that the picketers have maintained a constant presence at the sole vehicular entrance/exit point of each location since the strike began;

b. that the said picketers frequently have obstructed, delayed and hindered the progress of those attempting to enter or exit the plaintiff’s two properties in vehicles or on foot, and/or have completely prevented any entry to or exit from those properties for extended periods of time, with numerous specific and detailed observations being provided in that regard;

c. that vehicles which have been delayed or denied entry and/or exit from the two properties have included not only transport trucks, vans transporting management and other non-unionized employees of the plaintiff, and vehicles attempting to supply management and non-unionized employees still working inside the properties for very extended periods with necessities of life, (such as food, water, bedding, and work clothes), but:

i. service vehicles containing personnel, equipment and repair parts necessary for required ongoing maintenance and repair of the plaintiff’s facilities to keep them safe and operational, including a currently non-operational fire suppression system at the plaintiff’s evaporation plant;

ii. vehicles of specific management employees trained to perform the otherwise routine daily safety inspection of high-pressure lines carrying brine to the evaporation plant from salt caverns and wells located approximately 2.5km away, in order to avoid undetected leaks in those lines that could cause substantial environmental damage to surrounding and intervening parkland, roadways and other areas, as well as non-renewal of the plaintiff’s brine wells licencing agreement necessary to its continued operation;

iii. third party tanker trucks, which must attend intermittently at the mine location to drain accumulated and accumulating storm water, (saturated with salt and other chemicals), that will flood the mine and/or cause significant environmental damage if that accumulating contaminated water overflows its temporary holding facility;

iv. vehicles of management or non-unionized workers who need to transport samples of effluent taken from around the mine to an off-site lab for weekly testing, in accordance with the plaintiff’s Environmental Compliance Agreement with Ontario’s Ministry of Environment, Conservation and Parks, and thereby fulfil the plaintiff’s statutory obligations in that regard;

v. at least one EMS ambulance, dispatched to the salt mine to provide urgent medical assistance to a CIS driver, whose paramedics nevertheless were not permitted to drive their emergency vehicle onto the plaintiff’s property to assist the driver, but instead were required to enter the property on foot through the picket lines and then escort the ailing driver off the property through the same picket lines and back to their ambulance;

vi. vans transporting CIS employees to and from the evaporation plant and salt mine properties solely for the purpose of providing security and investigation services during the strike, (as opposed to performing any services connected with the plaintiff’s regular business operations); and

vii. a locomotive and two rail cars that attempted to pick up bulk loads of salt from the plaintiff’s evaporation plant on Thursday, February 23, 2023. [2]

d. that picketers, in addition to engaging in verbal abuse and overtly threatening future harm to non-unionized employees of the plaintiff, have been using horns, sirens, strobe lights and directed flash lights to intimidate and harass the occupants of vehicles being delayed while trying to enter or exit the plaintiff’s property, with the strobe lights in particular causing immediate health consequences in the form of headache and other physical distress; and

e. that picketers also have been trespassing on the plaintiff’s property, and attempting to open the doors of vehicles and buildings.

6. Details were provided concerning the significant impacts that would result from the plaintiff not being permitted, by March 1, 2023, to empty the current contents of two storage silos at the environmental plant, (i.e., 1,100 metric tons of salt), onto bulk trucks for shipment. In particular, salt left in those silos past that date would begin to “cake”, resulting not only in its spoilation and lost product worth approximately $187,000.00, (based on the bulk cost of salt), but significant additional complications, costs and business interruption caused by the silos having to be emptied through dissolution of the caked salt and then reconditioned before they could be used again.

7. Information was provided about what was said to be the inevitable but incalculable harm to the plaintiff’s goodwill, (e.g., with customers, the community and regulators), loss of customers, and loss of market share that will follow if the plaintiff is prevented from supplying any of its product to customers during the labour dispute.

8. Information also was provided about the immediate and longer term harm to others via salt shortages and supply chain interruptions already flowing from the inability of the plaintiff, as one of only a few suppliers of its product to markets in this country and the United States, to supply government and commercial customers with its product. Such consequences were outlined in considerable detail, which I will not replicate here. For present purposes, suffice it to say that:

a. the plaintiff’s evaporation plant is a major supplier of salt products to more than a thousand major customers, (many of which are well-known retailers), provides much of the kosher salt used in North America by restaurants (including fast food chains) and others, as well as 78 percent of Canada’s water-softening salt, and 60 percent of the salt sold in Canada for household cooking; and

b. the plaintiff is one of just three mining companies which produce rock salt in the Great Lakes and Ontario region, and neither of the other two have the infrastructure or permits to increase their supply, such that government entities inevitably will struggle to obtain adequate salt needed by municipalities to safeguard their roads in winter conditions.

9. Details were provided of attempts made by the plaintiff, through its representatives and contracted agents, to obtain assistance from the Windsor Police Service to address such concerns; i.e., through the provision of information specifying:

a. the dates, times and circumstances in which officers from that police service have been contacted with requests for assistance;

b. the occasions on which officers from that police service attended at the plaintiff’s property in response to such requests, or independently; and

c. the short term and long term results, or lack thereof, of any such attendance at the plaintiff’s property by officers from that police service.

i. By the time the matter came before me on Monday, February 27, 2023, the Unifor defendants named as parties to this proceeding had retained counsel – Mr Dale – to appear at the hearing and make representations. However, Mr Dale understandably was operating at a considerable disadvantage; i.e., having had little time to familiarize himself completely with the material filed and relied upon by the plaintiff, and little or no opportunity to prepare, serve and file any sworn evidence responding to the plaintiff’s factual allegations and evidence.

j. For reasons addressed in more detail below, the hearing before me included a request by the plaintiff to formally amend its notice of action and notice of motion, (so as to specifically identify a particular picketer as a named defendant), and the necessary calling of oral evidence from all but one of the plaintiff’s affiants, (i.e., all of the individuals named above with the exception of Ms Lausman), before I received final submissions from counsel. In the result, the hearing lasted most of the day, and necessarily extended significantly beyond the court’s normal “end of day” rising time of 4:30pm.

Relevant Provisions of the Courts of Justice Act, R.S.O. 1990, c.C.43

9Section 101 of the Courts of Justice Act, supra, confirms this court’s general inherent and broad equitable jurisdiction to grant injunctive relief. In particular, that section reads in part as follows:

101. (1) In the Superior Court of Justice, an interlocutory injunction … may be granted … where it appears to a judge of the court to be just or convenient to do so.

(2) An order under subsection (1) may include such terms as are considered just.

10However, anyone having passing familiarity with the challenging and sometimes troubled history of labour relations in this country will comprehend why governments, (including the Legislature of this province), have recognized the need for heightened sensitivity and care when it comes to the granting of injunctive relief in the context of labour disputes.

11To that end, section 102 of the Courts of Justice Act, supra, contains numerous provisions effectively imposing additional restraints, preconditions and limits on the injunctive relief that may be granted in the context of such labour disputes. As many of those provisions had and have relevance in the current context, I think it helpful to reproduce section 102 here in its entirety, with its headings and sub-headings:

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.

12With all of those legislative provisions in mind, I turned next to consideration of the preliminary jurisdiction arguments advanced by Mr Dale as counsel for the Unifor defendants.

Preliminary Arguments Regarding Jurisdiction

13As originally framed, the plaintiff’s notice of action commencing this proceeding, and the plaintiff’s corresponding notice of motion, named only “Unifor and its Local 1959 and its Local 240 and other presently unidentified picketers” as defendants to this proceeding and as the primary targets of the injunctive relief requested by the plaintiff’s motion.

14In the circumstances, it was argued by Mr Dale, on behalf of the Unifor defendants, that the proceeding was a nullity and that the plaintiff’s motion therein, pursuing relief in aid of that sought in the action, accordingly had to be dismissed. At the risk of over-simplification in that regard:

a. It was submitted that the naming of the union and its locals as defendants to this proceeding was improper. In particular, Mr Dale argued as follows:

i. At common law, it was well-established that, apart from special statutory provisions, a trade union could not sue or be sued in its own name; i.e., being neither a person, a partnership nor a corporation. An unincorporated association could not be made a party to an action. [3]

ii. Although unions have been afforded a legal or judicial personality for certain limited purposes by legislation such as our province’s Labour Relations Act, 1995, the common law’s reluctance to permit the naming of unions as parties to litigation nevertheless has been preserved and reinforced by s.3(2) of the Rights of Labour Act, R.S.O. 1990, c.R.33, which states that “A trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of this Act or of the Labour Relations Act ”. That provision was said to have created an absolute bar to the naming of a trade union as a party to an action, notwithstanding the limited legal or judicial personality a trade union might have for certain other purposes pursuant to Ontario’s labour relations legislation. [4]

iii. In that regard, it also was emphasized that section 102 of the Courts of Justice Act speaks only to an injunction being issued to restrain a “person” or “persons” from doing any act in connection with a labour dispute, and does not expressly permit a trade union to be made a party to an action. Indeed, Mr Dale went further in his written submissions, and submitted that “There is no Act that permits a trade union to be made a party to an action, application or motion for an injunction to restrain picketing activity.”

b. As Unifor and its local collective bargaining units were the only specifically named defendants to the proceeding and the only specifically named respondents to the plaintiff’s motion, and there was said to be nothing before the court indicating or providing a justification for their being made a party irrespective of the Rights of Labour Act, supra, or the Labour Relations Act, supra, it was argued that the naming of the union and its locals essentially should be disregarded for purposes of the hearing before me, effectively leaving a proceeding and motion by the plaintiff seeking relief only from “presently unidentified picketers”.

c. Moreover, it was submitted, even if the plaintiff’s pleading and requests for relief had identified particular picketers by name as defendants/respondents, (which was not the case when the matter initially came before me), that alone would not have provided a sufficient jurisdictional basis for granting injunctive relief in a labour dispute without evidence indicating that any such named defendants/respondents had engaged in illegal activity, (e.g., unlawful interference or obstruction), which the requested injunction sought to enjoin. Evidence merely establishing the presence of a defendant/respondent on a picket line does not suffice. [5]

d. It was emphasized that such arguments had succeeded on an earlier occasion; i.e., in an unreported ruling delivered orally by Justice Thomas on October 28, 2016, in the case of Windsor-Essex Catholic District School Board v. Unifor Local 2458 et al., (Windsor court file no. CV-16-242996), a transcript of which was provided by Mr Dale. In that case, Justice Thomas accepted Mr Dale’s arguments that the union should not have been named as a defendant and accordingly needed to be “struck as a party” from the action. As each of the other individually named defendants to the underlying action was merely a representative of the union, and not a “person shown to have ever been on a picket line”, (let alone a person shown to have engaged in unlawful activity while doing so), Justice Thomas agreed with Mr Dale’s submission that the underlying proceeding had been commenced, and the request for injunctive relief had been pursued, “without one single individual being named who in fact embarked upon a course of conduct that this court could either see to be illegal or tortious”, such that the request for injunctive relief had to “fail because there [were] no properly named parties”. In that regard, Justice Thomas expressed extended regret that he was “not left with an action that [was] properly constituted”, and that he felt obliged to dismiss the motion “on very technical grounds”, as the underlying situation described in the material before him raised significant concerns about labour disruption, (including the use of vehicles to block entrances and exits to school properties), that was preventing teachers from reaching their classrooms for several hours or more each day; labour disruption that, in turn, was leaving young children unsupervised or minimally supervised, thereby jeopardizing their education, safety and security. In the circumstances, Justice Thomas found it “hard to believe that there would not be relief granted at some point … to erase the inability of teachers to get into classrooms in a timely way”. Finding that he had no jurisdiction to address such concerns, he instead urged counsel “to come to grips” with the issue as soon as possible; i.e., by having the dismissed action reconstituted as necessary, as “the rule of law … need[ed] to be applied” to the situation.

e. Replying to Mr Dale’s similar arguments in the case before me, plaintiff counsel submitted that unions self-evidently could be named as parties to such litigation, as disputes involving such named parties clearly had been allowed to proceed repeatedly before our appellate courts, including the Supreme Court of Canada. Such realities, it was said, supported a conclusion that unions were appropriate parties to such litigation, and had been accepted as such by our appellate courts. However, I note that a similar argument was advanced before Justice Thomas in Windsor-Essex Catholic District School Board v. Unifor Local 2458 et al., supra, where it was expressly rejected; i.e., based on the view of Justice Thomas that the issue likely had not been raised in such earlier cases “as long as there [was] one properly named defendant” because, “practically speaking, once another person is named as a defendant, any relief granted by the court, by the nature of the relief sought and by the order that will be granted, will come to the attention of the union and members of the union”.

15For my part, I question whether the law in this area, relating to the ability of unions to be named as parties to litigation, is as clear and settled as Mr Dale suggests.

16In relation to such matters, I have in mind, in particular, our Court of Appeal’s decision in Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General) (2002), 167 O.A.C. 3 (C.A.). In that regard:

a. To the extent the written submissions of Mr Dale intended to suggest an authoritative finding therein that s.3(2) of the Rights of Labour Act prohibits unions governed by Ontario’s labour relations legislation from being named as parties in litigation, I disagree. In particular, as I read the decision, our Court of Appeal expressly indicated that it was not necessary to decide that issue in the case before it; i.e., a case involving a union governed by federal labour legislation being permitted to act as a named plaintiff in that proceeding. [6]

b. By way of comments which therefore inherently may be regarded as obiter to some extent, our Court of Appeal nevertheless made observations that included the following:

i. Subsection 3(2) of the Rights of Labour Act may have been understandable at the time it was enacted, given the historical context which gave rise to passage of that legislation in 1944, as trade unions had only begun to emerge as important institutions in Ontario, and provincial legislation providing such unions with rights to compulsory collective bargaining was relatively new. However, “the world of labour relations and the legal framework within which it operates has undergone enormous revolution” since then, rendering s.3(2) of the Rights of Labour Act “something of an archaic legislative provision”. [7]

ii. Subsection 3(2) requires only that the ability of unions to be made a party to any action “not depend on the Rights of Labour Act or the Ontario Labour Relations Act”, and “Nothing in s.3(2) demands an express grant of standing from the legislature.” [8] [Emphasis added.]

iii. It was emphasized that, since original passage of s.3(2) of the Rights of Labour Act, the legal status accorded to trade unions has been undergoing an “extraordinary evolution” noted and developed in cases such as Berry v. Pulley et al. (2002), 2002 SCC 40, 211 D.L.R. (4th) 651 (S.C.C.), and a “broadening” that may be founded on provincial or labour legislation but which does not depend on or derive from specific provisions in any particular piece of legislation; a “broadening” that instead reflects an implicit conferring of legal status requiring courts, consistent with the “broad, principled approach to the legal status of unions found in Berry”, to treat unions as juridical entities. [9]

c. In the case before it, our Court of Appeal was addressing a case questioning the ability of unions to act as plaintiffs in litigation, and it should be noted and emphasized that many of the observations and comments noted above accordingly were focused on the need for unions to have sufficient legal personality to sue in their own names and “assert their rights in court”; i.e., in order to “play their role” in a world of labour relations now governed by sophisticated statutory machinery, “at least in matters relating to their labour relations function and operations”. [10] Having said that, I also note that the comments of the Supreme Court of Canada in Berry v. Pulley were wider, and spoke to the recognition of unions “as entities with significant rights and obligations ”, in that legislatures should be taken as having “intended, absent express legislative provisions to the contrary, to bestow on these entities the legal status to sue and be sued ”. [11] [Emphasis added.]

d. Having regard to such considerations, it seems to me that the question of whether s.3(2) of the Rights of Labour Act should still be construed (to the extent it was in the past) as such an “express legislative provision to the contrary” preventing unions from being named as defendants in litigation relating to labour disputes, notwithstanding that described “extraordinary evolution” and “broadening” backdrop, may be an important and interesting question that has yet to be authoritatively addressed and resolved.

17In the evolving circumstances before me, I nevertheless found it unnecessary for me to make any finding in that regard. [12]

18In particular, during the course of the hearing before me, the plaintiff sought and was granted leave to amend its notice of action and notice of motion to name expressly, as an additional defendant to the proceeding and respondent to the plaintiff’s motion, a member of the defendant union named James Gatto, also known as Jim Gatto. In that regard:

a. The affidavit sworn by Mr Calandra, (found at Tab 8 of the plaintiff’s motion record), included evidence specifically relating to Mr Gatto; evidence which was supplemented by oral testimony in that regard provided by Mr Calandra during the hearing before me.

b. In particular, Mr Calandra confirmed that Mr Gatto was a member of the defendant union, and that Mr Gatto had not only participated in picketing activity on Friday, February 24, 2023, but had gone further to promote and engage in activity intended to prevent any and all access to the plaintiff’s salt mine that day. Mr Calandra’s evidence in that regard included indications:

i. that a tanker truck and pickup truck from “Wessuc” approached the plaintiff’s salt mine on Morton Drive at approximately 11:46am that day for the purpose of removing accumulating storm water from the mine;

ii. that the Wessuc tanker truck and pickup truck pulled up to a picket line located at the entrance to the salt mine property, at approximately 11:51am, where their further progress was held up by the picketers; and

iii. that the picketers included Mr Gatto, who not only stood in front of the trucks so as to personally obstruct their entry into the mine property but also said, “multiple times”, while Mr Calandra was standing only several feet away from Mr Gatto, that “It’s fuck all Friday, nothing is getting in”.

19In the result, the plaintiff actually had included and identified expressly, by name, at least one defendant to the action and respondent to the motion in respect of whom the moving plaintiff also had tendered evidence of that defendant/respondent both promoting and participating in the interference and obstruction the requested injunction was sought to enjoin.

20In my view, that reality was sufficient to overcome, in any event, the threshold jurisdictional issue raised by Mr Dale. Without limiting the generality of the foregoing:

a. The courts of this province consistently have held that picketing which prevents the lawful entry and exit of owners, tenants or users of a property constitutes an unlawful nuisance which can be controlled through the issuance of an injunction. [13]

b. Subsection 102(3) of the Courts of Justice Act, supra, makes it clear that injunctions capable of being granted in connection with a labour dispute, pursuant to section 102, include injunctions addressing “obstruction of or interference with lawful entry or exit from … premises”.

c. Subject to satisfaction of the legislated conditions and prerequisites set forth in section 102 of the Courts of Justice Act, supra, this court therefore clearly has jurisdiction to make an injunction restraining Mr Gatto from engaging in such unlawful conduct.

d. Moreover, as confirmed by the Supreme Court of Canada in MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048, where a court of inherent jurisdiction has jurisdiction over a dispute or lis by reason of private litigation, it can make all orders necessary to preserve the rights of the parties including, where necessary, orders enjoining unknown and unnamed persons where necessary to make the relief effective. Principles noted and emphasized by the Supreme Court of Canada in that regard included the following:

i. Anyone with knowledge of such an order who disobeys its or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty in contempt of court, rendering any distinction between charging someone with violating the injunction or with contempt a distinction without a difference;

ii. For many decades now, Canadian courts have followed the practice of issuing orders directed at prohibiting interference with private property rights, which orders affect not only the named parties but also the general public;

iii. The proposition that superior courts possess inherent jurisdiction to issue injunctions to restrain large-scale public action violative of private rights enjoys wide recognition;

iv. If members of the public may be bound to respect court orders in private suits, on pain of being held in contempt, it is appropriate that the order apprise them of that fact;

v. So long as a member of the public is first apprised of the existence and terms of an injunctive order and given an opportunity to comply, that member of the public may be detained and punished for violating the order; and

vi. Canadian courts of inherent jurisdiction accordingly have jurisdiction to make orders binding on persons who are not parties to the action. [14]

21I was not persuaded by Mr Dale’s submission that the currently uncontradicted evidence of Mr Gatto’s unlawful conduct, and the inclusion of Mr Gatto alone as an expressly identified and named defendant to the action and respondent to the motion, provided only an unacceptably slim and tenuous jurisdictional basis on which to grant an injunction in this case. Without limiting the generality of the foregoing:

a. In Windsor-Essex Catholic District School Board v. Unifor Local 2458 et al., supra, the jurisdictional argument advanced by Mr Dale succeeded in blocking the granting of any injunctive relief on what the court expressly identified as “very technical grounds”, despite the very serious identified concerns regarding the safety and welfare of children being jeopardized. In that regard, I note in particular the reference by Justice Thomas to Mr Dale’s successful argument that “you just need one” named defendant/respondent, with demonstrated participation in the unlawful conduct to be enjoined, before an injunction could be granted in the context of a labour dispute. In this case, the moving plaintiff has done so, (i.e., has named at least one such person as a defendant/respondent), and in my view, “very technical grounds” for denying or granting injunctive relief clearly cannot operate solely in one direction without creating an obvious perception of injustice.

b. In this case, there was also clear and so far uncontradicted evidence before me that those engaged in such unlawful interference and obstruction activity were deliberately attempting to cloak their conduct with anonymity; i.e., by refusing to provide their names or the names of picket captains when such information reasonably was requested by CIS personnel trying to negotiate, (on behalf of the plaintiff who had retained their services), agreed passage of vehicles and persons through picket lines which were blocking entry to and exit from the plaintiff’s properties. In such circumstances, the plaintiff’s failure to identify more expressly identified and named defendants and respondents in its notice of action and notice of motion seemed more attributable to those who whose conduct is sought to be enjoined, rather than any litigious oversight by the plaintiff or its counsel.

c. I was also mindful of comments made by the Supreme Court of Canada in MacMillan Bloedel Ltd. v. Simpson, supra, decrying the notion that courts should stand by and watch helplessly when the private rights of an individual are “overrun by the mob”, or turn their backs on a person who looks to the courts for help in such circumstances “over an issue so apparently technical as jurisdiction”. [15]

d. In my view, it was perfectly possible, (having regard to the considerations outlined above), to grant injunctive relief effectively leaving open the question of whether the union and its locals could or should have been named as parties to this litigation; i.e., insofar as the court clearly had jurisdiction to grant an injunction restraining the unlawful conduct of Mr Gatto, as well as all unnamed/unidentified members of the public, (including members of the union and its locals), who might subvert the obvious purpose of that order by engaging in similar unlawful behaviour.

22Having sufficiently addressed and resolved the preliminary jurisdictional arguments raised by Mr Dale, I turned next to consideration of whether the plaintiff had satisfied the legislated preconditions for the granting of injunctive relief set forth in section 102 of the Courts of Justice Act, supra.

Satisfaction of Section 102 Requirements for the Granting of Injunctive Relief

23In this case, no one disputed that the underlying situation involved a “labour dispute”, as defined by s.102(1) of the Courts of Justice Act, supra.

24Before an injunction could be granted to restrain an act in connection with that labour dispute, the other applicable requirements of section 102 therefore had to be satisfied.

25In my view, the plaintiff nevertheless had met its obligations in that regard.

26In relation to ss.102(2), 102(6) and 102(7) of the Courts of Justice Act, supra:

a. There was no dispute that, on any view of the matter, the plaintiff had given less than two days notice of its motion requesting injunctive relief before that motion came before me for hearing on Monday, February 27, 2023. As noted above, the evidence set forth in the relevant affidavits of service indicated no efforts to effect service of the plaintiff’s motion material, (including its notice of motion), prior to the afternoon of Sunday, February 26, 2023.

b. The plaintiff therefore clearly had not given “at least two days notice of a motion for an interim injunction to restrain a person from any act in connect with a labour dispute” to “the responding party and to any other person affected thereby but not named”, as contemplated by s.102(6) of the Courts of Justice Act, supra. Without limiting the generality of the foregoing:

i. Insofar as the injunction would affect persons who were members of a labour organization, there was no evidence that the notice required by s.102(6) had been effected via the manner permitted by s.102(7)(a) of the Courts of Justice Act, supra, (i.e., through “personal service on an officer or agent of the labour organization”), except insofar as the process server Mr Vallillee had been able to hand-deliver copies of the plaintiff’s motion material to the man, (not identified by name but only by description at paragraph 15 of Mr Vallillee’s sworn affidavit of service), who indicated that he was “in charge” of those picketing at the 30 Prospect Drive location when Mr Vallillee attended there on the afternoon of February 26, 2023. Although the affidavit of service sworn by Ms Ambrose indicates that a copy of the plaintiff’s motion material was served on Mr Moceri on or about 3:56pm that afternoon, and that Mr Moceri was a representative of the defendant Unifor, any such service clearly was not “personal service”. Mr Moceri was simply sent an email providing him with a link to a secure website where the material could be reviewed.

ii. There was no evidence to suggest that the plaintiff had made any attempt to effect service via s.102(7)(b) of the Courts of Justice Act, supra, which permits notice required by s.102(6) to be given to persons who 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”.

c. In the circumstances, Mr Dale argued that the situation was tantamount to no notice having been given in relation to the plaintiff’s motion, and that s.102(2) therefore prohibited the granting of any injunction to restrain a person from an act in connection with a labour dispute. I agreed with the first part of that submission, but not the second. In particular:

i. Although some efforts had been made to bring the plaintiff’s intended motion to the attention of the named defendants/respondents and others who might be affected by granting of the relief being requested, such efforts clearly fell short of the minimum notice generally required by s.102(6) of the Courts of Justice Act, supra, and in my view therefore had potential relevance only to the matters to be addressed by s.102(8)(b) of that legislation, discussed in more detail below.

ii. Although s.102(2) generally directs that “no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice”, and s.102(6) prescribes a minimum notice period of two days, both subsections are expressly made “Subject to subsection (8)”; i.e., s.102(8) of the Courts of Justice Act, supra, which expressly states that, in situations “where notice as required by subsection (6) is not given”, the court still “ may grant an interim injunction”, (emphasis added), so long as the further preconditions specified thereafter, in s.102(8)(a), (b), (c) and (d) have been satisfied. It accordingly is simply incorrect to state, as an absolute proposition, that “no injunction may be made without notice” to restrain a person from doing any act in relation to a labour dispute. To the contrary, the Legislature expressly confirmed the possibility of such an injunction being granted, subject to the satisfaction of more stringent prerequisites.

27As noted above, pursuant to s.102(3) of the Courts of Justice Act, supra, “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 obstruction of or interference with lawful entry or exit from the premises in question or breach of the peace have been unsuccessful.” In that regard:

a. I agreed with Mr Dale’s submission that satisfaction of s.102(3) is a jurisdictional prerequisite to the granting of any injunction to restrain a person from an act in connection with a labour dispute. Without limiting the generality of the foregoing, in contrast to the provisions of s.102(2) and 102(6) of the Courts of Justice Act, supra, the provisions of s.102(3) are not made “subject to subsection (8)”, and accordingly also apply to extraordinary requests for such injunctive relief pursuant to s.102(8) of the legislation.

b. I nevertheless disagreed with Mr Dale’s submission that the evidence fell short of establishing that “reasonable efforts” to obtain police assistance, protection and action described in s.102(3) had been made in this case. In that regard:

i. In his submissions and cross-examination of the plaintiff’s affiants, Mr Dale highlighted that the affidavits and testimony relied upon by the plaintiff included numerous indications that members of the Windsor Police Service had attended at the plaintiff’s salt mine and evaporation plant properties from time to time since the labour dispute began, (sometimes in response to calls for assistance made by the plaintiff and its representatives, and sometimes independently), and that the police occasionally had succeeded in facilitating efforts by vehicles and persons to enter or exit the plaintiff’s premises. In my view, such evidence, (which I will not particularize in detail here), unquestionably was present during the hearing before me.

ii. However, Mr Dale’s submissions in that regard focused on such evidence to the exclusion of other evidence, also unquestionably present during the hearing before me, (but which I similarly will not particularize in detail here), indicating with specified particulars and details:

1. that the Windsor Police Service did not always respond to the calls for assistance to address, inter alia, clearly documented and obvious prolonged delays and frequent complete obstruction of entry and exit from the plaintiff’s properties by picketers, and/or other conduct by picketers subjecting those attempting to leave or enter the property to verbal threats, acoustic harassment and optical torment;

2. that the Windsor Police Service provided little or no effective assistance to address and remedy such complaints and concerns on numerous occasions when they did attend; and

3. that temporarily successful efforts by the Windsor Police Service to intervene and address the plaintiff’s complaints and concerns in that regard were short-lived, with the situation reverting to similar misconduct shortly after members of the Windsor Police Service left the relevant areas.

iii. In my view, the plaintiff and its agents have made the “reasonable efforts” required by s.102(3) of the Courts of Justice Act to have the plaintiff’s legitimate complaints and concerns addressed through police assistance, but those efforts have not been sufficient or successful. Something further is required.

28I was sensitive throughout this process to the provisions of s.102(4) of the Courts of Justice Act, supra, requiring that affidavit evidence tendered in support of a motion for an injunction to restrain a person from an act in connection with a labour dispute “be confined to statements of facts within the knowledge of the deponent”. Those provisions obviously highlight and address the Legislature concern that it would be inappropriate for the court to rely on hearsay as a basis for granting injunctive relief in relation to such sensitive matters. It was for that reason that I proactively highlighted, at the outset of the hearing before me, the inappropriate hearsay nature of the evidence provided by Ms Lausman in her sworn affidavit. For the same reason, I agreed with Mr Dale’s submission that certain specific evidence, (e.g., the substance of email communications from the contractor contacted to effect repairs to the non-operational fire suppression system at the plaintiff’s evaporation plant, as opposed to the direct evidence from Mr Amoah that the fire suppression system is non-operational and the plaintiff has been unable to effect urgent repairs to that system because of picketing activity preventing vehicles from entering or leaving the property), should be disregarded for purposes of the motion. In my view, the evidence of facts within the knowledge of the affiants and witnesses relied upon by the plaintiff nevertheless was sufficient to satisfy the preconditions of s.102(8) of the Courts of Justice Act, supra, addressed in more detail below.

29I similarly was mindful of the limitations imposed by s.102(5) of the Courts of Justice Act, supra, which indicates that 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”. Without limiting the generality of the foregoing:

a. Although some of the plaintiff’s motion material suggested otherwise, in my view the provisions of the Rules of Civil Procedure dealing with the computation of time, the ability of the court to extend or abridge timing requirements, the interpretation of such provisions, and the definition of certain relevant terms in that regard, (e.g., the provisions of Rule 3.01, Rule 3.02 and Rule 1.03 of the Rules of Civil Procedure), had no application to the interpretation or application of section 102 of the Courts of Justice Act, supra. In particular, the rules are not only subordinate legislation enacted by regulations made under the Courts of Justice Act, supra, but

i. Rule 3.01(1) expressly indicates that its provisions relate only to “the computation of time under these rules or an order ”;

ii. Rule 3.02(2) expressly indicates that the power granted therein to extend or abridge indicated time requirements or limitations extends only to “any time prescribed by these rules or an order ”; and

iii. Rule 1.03(1) indicates that the terms defined therein, including the definition of “holiday” as including “any Saturday or Sunday”, apply only to situations where the defined terms appear “ In these rules ”.

[Emphasis added.]

b. In my view, the interpretation of a provincial statute such as the Courts of Justice Act, supra, instead fell to be interpreted only by the provisions of the Interpretation Act, R.S.O. 1990, c.I.11, and standard canons of statutory construction. In that regard:

i. The only provisions in Ontario’s Interpretation Act relating to computation of time appear to be those set forth in s.28(h) and (i) of the Act, which provide that, “where the time limited by an Act for a proceeding or the doing of any thing under its provisions expires or falls upon a holiday”, or “where the time limited for a proceeding or for the doing of any thing in a court office, a land registry office or a sheriff’s office expires or falls on a day that is prescribed as a holiday”, (with the term “holiday” being defined in section 19 of the Interpretation Act as including any Sunday or a variety of other specified holidays, none of which have relevance in the circumstances before me), the time effectively is extended so that the relevant proceeding or act to be done may be done on the next day following that is not a holiday.

ii. There accordingly is nothing in the Interpretation Act, supra, similar to the provisions of Rule 3.01(1) of the Rules of Civil Procedure, which effectively alters or extends the meaning of “days” when dealing with any statutory reference to a period of days, or allows the performance of certain actions up until 4:00pm on any specified day.

iii. In my view, the reference in s.102(5) of the Courts of Justice Act to “four days” should be interpreted, pursuant to common dictionary definitions of a “day” as referring to “a twenty four hour period as a unit of time, [16] as a reference to four consecutive 24-hour periods of time running from the precise time at which an order granting an interim injunction is made.

iv. In this case, the Order I made granting an interim injunction was signed at approximately 1:40pm on Tuesday, February 28, 2023. I specified in the terms of the Order, (and in paragraph 8 of the Order in particular), that the Order was to remain in force only until 1:00pm on Saturday, March 4, 2023; a period less than four “days”, (i.e., four consecutive 24-hour periods), from the time the Order was made, thereby ensuring compliance with s.102(5) of the Courts of Justice Act, supra.

30As for the requirements of s.102(8)(a), (b), (c) and (d):

a. I was satisfied, based on the admissible written evidence and oral testimony I received, that the case was “otherwise a proper one for the granting of an interim injunction”. Without limiting the generality of the foregoing:

i. The “three-part test” for the granting of an interim or interlocutory injunction is now well-established in the wake of RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, (“RJR”), and requires the party requesting such relief to satisfy the court:

1. that there is a “serious question to be tried”;

2. that the party seeking the injunction will suffer irreparable harm if the injunction is not granted; and

3. that the balance of convenience favours granting the injunction. [17]

ii. As to whether the evidence reveals a “serious question to be tried”:

1. The Supreme Court of Canada made it clear in RJR that this first stage of the “test” for granting an interlocutory injunction should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on its merits. In particular, a motions judge asked to grant such injunctive relief is to go beyond a preliminary investigation into the merits only when the result of the interlocutory motion will in effect amount to a final determination of the action or, in exceedingly rare cases, when the constitutionality of a challenged statute can be determined as a pure question of law. The “serious question to be tried” threshold to be met by a party seeking an interlocutory injunction is a low one, and unless the case on the merits is frivolous or vexatious, or the constitutionality of an impugned statute is a pure question of law, the first stage of the test for granting an interlocutory injunction generally will be satisfied, such that a motions judge considering the granting of such relief should move on to consideration of the second and third stages of the test. [18]

2. In my view, the evidence tendered by the plaintiff in this case clearly meets the requisite of demonstrating a case that is not frivolous or vexatious. There was substantial and detailed evidence that picketers, including Mr Gatto, were intentionally engaged in obstruction and interference resulting in significantly delayed, and for extensive periods completely denied, entry to and exit from the plaintiff’s salt mine and evaporation plant properties in the City of Windsor. As noted above, there is substantial authority in Canadian law confirming that picketing which prevents the lawful entry and exit of owners, tenants and/or users of a property constitutes an unlawful nuisance which can be controlled through the issuance of an injunction. [19] Moreover, while picketing is presumptively legal and constitutionally protected, such picketing is impermissible where it breaches the criminal law or involves other unlawful conduct such as nuisance, trespass and/or intimidation. [20] The evidence I received in this case included details of specific instances where picketing activity had not only interfered with, obstructed and/or prevented entry to and exit from the plaintiff’s property, but occasions on which picketers had entered onto the plaintiff’s property, attempted to open the doors of vehicles trying to enter the plaintiff’s property, and subjected those trying to enter or leave the plaintiff’s property with verbal abuse that included threats of future harm, while also blaring loud horns and sirens and shining strobe lights and other directed light at the occupants of vehicles being held at the picket lines. In my view, such conduct clearly rises to the level of unlawful and impermissible nuisance, trespass and intimidation.

3. I did not agree with Mr Dale’s submission that this was an instance requiring a more detailed review of the case on the merits and/or the plaintiff’s demonstration of a prima facie case, on the suggested basis that granting the injunction would finally determine aspects of the underlying dispute. For example, it was suggested that the plaintiff should not be permitted to move, in a “final” manner, product from its facilities and/or salt from its storage silos in circumstances where it otherwise could not do so owing to the union’s legitimate and legally permissible withdrawal of labour during the strike, as a means of exerting economic pressure on the plaintiff. In my view, however, the presented evidence made it sufficiently clear that the inability of the plaintiff to move product from its facilities and/or remove salt from its storage silos had nothing to do with the union’s withdrawal of labour and everything to do with unlawful picketing activity completely obstructing the lawful passage of vehicles to and from the plaintiff’s property. Moreover, even if the circumstances had required demonstration of a prima facie case, in my view the evidence tendered by the plaintiff rose to that level.

iii. As for whether the evidence established a genuine risk of the plaintiff suffering irreparable harm unless the injunction is granted:

1. The Supreme Court of Canada indicated in RJR that the issue to be decided at this stage of the analysis is whether a refusal to grant relief “ could so adversely affect the applicant’s own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application”. [Emphasis added.] [21] In this context, “irreparable” refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. Examples include instances where a party may be put out of business, suffer permanent market loss or irrevocable damage to its business reputation, or a suffer a permanent loss of resources. [22]

2. In my view, there was more than sufficient evidence presented in this case to indicate a clear potential for irreparable harm, in the sense required, if some measure of injunctive relief was not granted. Without limiting the generality of the foregoing:

a. Courts have accepted that deliberate, tortious and/or criminal obstruction of lawful entry to and exit from a plaintiff’s property is unlawful conduct giving rise to harm in respect of which damages are not an adequate remedy. [23] As noted above, there was clear and currently undisputed evidence before me that such unlawful conduct has occurred in this case, and has persisted despite intermittent efforts by members of the Windsor Police Service to intervene; e.g., with picketers delaying or completely preventing the arrival and departure of non-unionized personnel employed by the plaintiff, (including CIS personnel necessarily employed by the plaintiff during the current labour dispute), transport trucks, and service providers. In my view, there was every indication that such unlawful conduct, and the associated irreparable harm to the plaintiff flowing from such conduct, would continue in this case without the granting of injunctive relief.

b. However, in this case, the evidence of potential irreparable harm from injunctive relief not being granted went much further. In that regard:

i. As noted above, the fire suppression system at the plaintiff’s evaporation plant is currently non-operational and in urgent need of repairs; repairs which the plaintiff has been unable to effect because interference and obstruction by picketers has made it impossible, to date, for the plaintiff to secure the attendance of service personnel and repair components needed to effect those required repairs. In his submissions, Mr Dale emphasized that the plaintiff admittedly has implemented special arrangements to have personnel engage in personal monitoring of the affected areas in an effort to ensure early detection any fire that might occur in the affected areas of the evaporation plant. In my view, however, fire detection is not fire suppression, and there is no reason why the safety of individuals inside the evaporation plant, or the safety of those who might be called upon to attend at the facility to fight a fire already allowed to burn and spread in an uncontrolled manner prior to their arrival, unnecessarily should be put at risk by allowing picketers to engage in a blockade of service providers who might otherwise be willing and able to make the relevant fire suppression system operational again. Nor do I think the plaintiff should be required, because of such unlawful picketing, to risk the loss of its evaporation plant to destruction by fire; destruction that undoubtedly would lead not only to immediate property loss but also significant delays in production, as well as corresponding loss of market share and loss of reputation, in respect of which a calculation of monetary damages seems likely to be an extraordinarily difficult exercise.

ii. As noted above, the high-pressure lines carrying brine to the evaporation plant from distant salt caverns and wells are no longer being inspected for leaks on a daily basis, and the currently uncontradicted evidence before me indicates that the potential for catastrophic environmental damage, and a related loss of the plaintiff’s licence to continue such operations, (a licence necessary for the survival of the plaintiff’s evaporation plant business), is very real. The irreparable harm threatened by inability to regularly and routinely inspect the relevant pipelines therefore engages not only the plaintiff’s private interests, (including the risk of business loss, liability for damages in relation to any environmental catastrophe, and loss of reputation and goodwill), but also the public interest of those living in and around the affected areas who should not needlessly be exposed to the risk of such hazards. In that regard:

1. I was not persuaded by Mr Dale’s emphasis on evidence that no such catastrophic leaks have occurred to date. The success of past efforts to monitor the pipelines, and see to any corresponding preventative maintenance needs, when trained inspectors employed by the plaintiff had the ability to routinely guard against such undetected and catastrophic leaks by exiting and re-entering the plant on an unobstructed basis, is no reliable indication of what may happen when such inspection activity effectively is being prevented.

2. Nor was I persuaded by Mr Dale’s suggestion that such non-unionized inspectors employed by the plaintiff could be called upon to carry out such inspections during the “downtime” they otherwise might have once they manage to exit the evaporation plant facility after being there and “on call” for 72 hours straight. In that regard, Mr Amoah testified in cross-examination that the plaintiff cannot reasonably call on such inspectors to perform such additional services on their “downtime”, (which inherently would cease to be downtime), while those individuals otherwise are being pushed to the limit during the current labour disruption. I accept and agree with that evidence.

iii. In my view, similar private and public interests are being placed at risk by the prevention of necessary drainage and removal of storm water accumulating at the plaintiff’s salt mine. The currently uncontradicted evidence indicates that the prevention of such drainage efforts, caused by picketers engaging in the complete obstruction of vehicle entry to and from the plaintiff’s salt mine property, risks flooding of the mine, (thereby jeopardizing the personal safety of those at the facility and those who might be called upon to rescue them), as well as a further environmental catastrophe that may have not only local but also international dimensions; i.e., if there is resulting contamination of the nearby Detroit River. In my view, nothing in the presented evidence or submissions of counsel provided any basis for thinking that such risks are unreal or exaggerated. Moreover, on top of that significant risk to human safety and the environment, (to which the plaintiff’s personnel, emergency responders and the public should not needlessly be exposed), the evidence established a clear potential for significant property damage and destruction resulting from the prevention of such necessary storm water drainage measures. In my view, such damage and destruction almost certainly would entail corresponding business interruption, loss of market share and loss of reputation and goodwill, all of which would be inherently difficult to quantify in terms of monetary damages.

iv. As for the weekly testing of effluent samples currently being prevented by picketers blocking entry and exit from the plaintiff’s property, I might be inclined, as a lay person in relation to such matters, to agree with Mr Dale that such delays in testing may not present pressing or imminent risks and dangers. However, those employed by the province’s Ministry of the Environment, Conservation and Parks obviously do have such expertise, and clearly felt that imposing a weekly obligation on the plaintiff in that regard was something reasonably necessary for the preservation and/or protection of health, safety and the environment. In my view, the risks to personnel employed by the plaintiff and to the public associated with interruption of such regular sample delivery and testing, (i.e., because picketers have been preventing exit from and re-entry to the plaintiff’s property by those trying to transport the necessary samples to the lab which analyses them), therefore should not be readily discounted or ignored. Moreover, in my view the plaintiff’s unwanted failure to comply with its regulatory obligations, mandated by the provincial government, inherently carries the risk of consequences; e.g., government intervention that may prevent the plaintiff’s continued ability to carry on its business operations, in turn giving rise to the possibility of further business interruption, loss of reputation, and loss of goodwill, the impact of which inherently would be difficult to quantify in terms of monetary damages. All of these risks could be avoided if those with responsibility for regular delivery of the necessary effluent samples to the relevant testing lab were permitted to leave and re-enter the property on a daily basis without unreasonable delay or total obstruction.

v. I see no reason whatsoever why emergency responders should be prevented from entering and leaving the plaintiff’s property if and as necessary, without any delay whatsoever, in order to carry out their vital duties. Any such delay self-evidently carries the risk of irreparable harm; e.g., in terms of needlessly jeopardizing the health and safety of those on the plaintiff’s premises. In my view, the interference and obstruction carried out to date in that regard, by those picketing the plaintiff’s properties, simply underscores the completely unreasonable and unlawful approach being adopted by those individuals in exercising their right to picket.

vi. I similarly see no justification for significantly delaying or denying the provision of life’s necessities, (e.g., food, water, clean clothing and bedding), to those who are remaining inside the plaintiff’s facilities for extended periods of time during the current labour dispute. There is no reason why the health and safety of such personnel should be compromised needlessly; i.e., by picketers completely preventing reasonably necessary and appropriate deliveries in that regard on a daily basis.

vii. Nor do I see any justification for those being delayed by the picket lines to be subjected to threats or health-jeopardizing torment; e.g., via the deliberate direction or shining of strobe or other high-intensity lights at the occupants of vehicles being delayed at the picket lines.

viii. As for the imminent spoilation of the salt in the plaintiff’s silos at its evaporation plant, and the plaintiff’s inability to transport product from its evaporation plant and/or already-mined salt from its mine to fulfil its supply contracts:

1. It seemed to me that only the first concern posed a demonstrated danger of imminent irreparable harm occurring if no injunctive relief was granted within the four-day period in respect of which interim injunctive relief was being sought. In particular, while I think it reasonable to believe on the currently uncontradicted evidence that sustained inability to unload and transport product and already-mined salt may very well give rise over time to the plaintiff sustaining business interruption and market loss, and/or damage to business reputation and customer goodwill, all of which may very well be extremely difficult or impossible to quantify adequately in terms of monetary damages, I generally was not persuaded that such damages and loss were likely to materialize over the contemplated four day period of the requested interim injunction. In my view, based on the evidence presented, plaintiff counsel also rightly did not aggressively pursue any suggestion that dire consequences to the public interest would flow from any significant salt shortage arising over that same limited time period. I also think the loss of spoiled salt itself was readily quantifiable in monetary terms; indeed, the plaintiff assigned a dollar value, ($187,000.00), to that potentially lost product in its motion material.

2. However, in my view, imminent irreparable harm was threatened by the business interruption, and corresponding difficult-to-quantify monetary damages associated with longer term loss of market share, loss of business reputation and loss of customer goodwill, stemming from a prolonged inability to supply product from the plaintiff’s evaporation plant if the plaintiff effectively is prevented from unloading the current contents of its storage silos, owing to picketers preventing requisite transport trucks from entering and leaving the property; i.e., thereby necessitating otherwise extensive and avoidable remedial efforts to recondition the silos and make them usable again once the product now contained therein cakes and spoils.

iv. As for balance of convenience considerations:

1. The Supreme Court of Canada indicated in RJR that this third and final stage of the test requires a determination of which of the parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits. The factors which must be considered in assessing that “balance of convenience” are numerous and will vary in each individual case. However, the Supreme Court of Canada has expressly rejected adoption of an approach which would exclude consideration of any harm not directly suffered by a party to the litigation. An applicant for injunctive relief may properly seek to persuade the court of the public interest benefits which will flow from the granting of the relief sought. [24]

2. In this case, the consequences of denying the plaintiff’s request for injunctive relief are very much intertwined with the private and public interest irreparable harm considerations noted above. I was satisfied that the plaintiff and the public are likely to experience substantial inconvenience, through such demonstrated and potential consequences and risks, if injunctive relief is not granted.

3. On the other hand, I found it difficult to see any meaningful inconvenience that would be experienced by those who would be restrained from further participation in unlawful nuisance, trespass and intimidation activity that has been occurring to date on the picket lines. In that regard, it should be emphasized that the injunctive relief being requested does not seek to prevent lawful and constitutionally protected rights of proper picketing. Again, picketers have legitimate and constitutionally protected rights to freedom of expression that must be allowed to continue in a reasonable manner during the course of this labour dispute. However, those rights can be protected and facilitated by the granting of injunctive relief that allows for reasonable periods of delayed entry and exit from the plaintiff’s property while picketers attempt to communicate their views in a lawful and peaceful way, short of transgressing into unreasonable extended delay and/or complete obstruction of those trying to enter or leave the plaintiff’s property, improper intimidation in that regard, and/or trespass.

4. In my view, the balance of convenience accordingly favoured granting a measure of interim injunctive relief to address the complaints and concerns presented by the plaintiff, so long as that relief made appropriate allowance for preservation of the picketers’ right to lawful and permissible communication of their views to those entering or leaving the plaintiff’s property.

v. In arriving at my decision that the case was “otherwise a proper one for the granting of an interim injunction”, I also have been mindful of Rule 40.03 of the Rules of Civil Procedure, which provides that, on a motion for an interlocutory injunction or mandatory order, the moving party “shall, unless the court orders otherwise , undertake to abide by any order concerning damages that the court may make if it ultimately appears that the granting of the order has caused damage to the responding party for which the moving party ought to compensate the responding party”. [Emphasis added.] In this case:

1. No such undertaking was put forward in the plaintiff’s motion material or otherwise. Nor was the plaintiff’s failure in that regard raised, mentioned or relied upon by the respondents who appeared before me via the representation of Mr Dale.

2. Of course, a failure by parties responding to a motion for injunction to raise and rely upon Rule 40.03 does not make the provisions of that rule any less applicable in such situations. In my view, however, this was not a case where such an undertaking was required, at least insofar as the plaintiff’s request for a four day interim injunction was concerned. Without limiting the generality of the foregoing:

a. In my view, there was little if anything before me to suggest that any respondent to the motion for an interim injunction, or any party affected thereby, would suffer any damages through the granting of such relief. In particular:

i. The relief being requested, and which I intended to grant, was inherently focused on the restraint of unlawful conduct, and our courts self-evidently do not award damages for a party’s inability to engage in unlawful conduct.

ii. I was mindful that injunctive relief, although aimed at the restraint of unlawful conduct, always has the potential for inflicting collateral damage; i.e., by the inadvertent but effective restraint of lawful conduct, thereby giving rise to potential legitimate claims for damages suffered by those who otherwise would have committed no wrongdoing. In this case, however, nothing in the evidence before me suggested the potential for such collateral damage, apart from the possibility of the requested relief infringing upon constitutionally protected rights to freedom of expression inherent in legitimate and lawful picketing in relation to labour disputes. As emphasized by the Supreme Court of Canada, the right to such freedom of expression is nevertheless not absolute, and may legitimately be curtailed to some extent; e.g., to ensure the rule of law and make allowance for the recognition for other conflicting rights such as those inherent in legitimate use and enjoyment of a person’s property. Again, the relief requested and relief I decided to grant therefore were never intended to impose absolute restrictions or prohibitions on the right of any respondent to engage in lawful and peaceful picketing for the legitimate purpose of expressing views in the context of a labour dispute. To the contrary, the relief requested and granted was always intended to make appropriate allowances in that regard, while restraining picketing for illegitimate and unlawful purposes; e.g., picketing causing inordinate or absolute interference with or obstruction of entry to and/or exit from property, (constituting unlawful nuisance), trespass and/or improper intimidation.

iii. I also was mindful that the relief requested and contemplated would be in place for a maximum of four days, which reinforced my view that anything in the way of unintended and unforeseen “collateral damage” to legitimate rights of otherwise lawful conduct was likely to be minimal.

b. In my view, this also was a case where the party requesting the injunction clearly is possessed of substantial assets; i.e., its extensive properties situated along the Detroit River, and the resources and facilities situated on those properties. In the circumstances, (and once again having regard to the apparent improbability of any legitimate claims for damages arising from the granting of an interim injunction, and the further improbability of any sizeable claims in that regard), it seemed unnecessary to buttress the ability of any legitimate claimant to recover damages arising from the interim relief I intended to grant by requiring an undertaking by the plaintiff to pay any ordered damages in that regard.

3. To the extent necessary, I accordingly thought it appropriate to dispense with the requirement of such an undertaking from the moving plaintiff in these particular circumstances, pursuant to the discretion conferred on the court by Rule 40.03.

b. Having regard to the evidence of demonstrated and threatened irreparable harm and injury outlined above, and the breaches of the peace described in the currently uncontradicted evidence presented by the plaintiff, (e.g., in terms of the nuisance, trespass and health-jeopardizing intimidation that has occurred to date, and which has not been remedied by intermittent attempts at police intervention), I was satisfied that the minimum notice contemplated by s.102(6) of the Courts of Justice Act, supra, reasonably could not be given in the present case.

c. I was also satisfied that notification “by telephone or otherwise”, “reasonable” in the circumstances, either had been given to the persons to be affected by the relief being requested by the plaintiff, (including notification provided to members of the relevant union through de facto communication of the plaintiff’s motion material to an individual professing to be “in charge” of picketing activity at the plaintiff’s property, and to Mr Mocero), or could not be given owing to closure of the union’s offices for the week-end or otherwise, and the deliberate refusal of picketers to accept personal service of the plaintiff’s motion material. In that regard, I note that the union self-evidently received actual notice of the plaintiff’s motion, albeit not the minimum notice contemplated by s.102(6) of the Courts of Justice Act, supra, insofar as the union not only made arrangements for legal representation of the union and its locals during the hearing before me, but that virtual hearing was attended by others self-identifying as members of the union; e.g., Mr Mocero and Ms Nesbitt. While there was nothing before me to confirm that Mr Gatto was notified personally of the plaintiff’s motion or intention to amend its notice of action and notice of motion, and Mr Dale expressly indicated that his retainer did not extend to formal representation of Mr Gatto personally, the evidence of Mr Gatto’s membership in the union or active participation on the picket lines was not disputed. In the circumstances, I think it unlikely that Mr Gatto was unaware of the plaintiff’s efforts to effect personal service of its motion material at the location of those picketing the plaintiff’s properties; motion material that made it quite clear that the plaintiff also was seeking relief vis-a-vis “presently unidentified picketers”.

d. As noted earlier in these reasons, I was not content to rely on the sworn affidavits tendered by the plaintiff, but required the affiants (or at least those affiants on whose evidence the plaintiff still wished to rely) to appear and provide oral evidence under oath or affirmation. Each of those affiants confirmed under oath or affirmation that the evidence set forth in his or her affidavit was and remained true and accurate, and did not require any revision. Each of those affiants then was subjected to cross-examination by Mr Dale, and in some cases re-examination by Mr MacDonald for the plaintiff. In my view, that oral evidence proved all material facts for the purposes of s.102(8)(a), (b) and (c) of the Courts of Justice Act, supra.

31Of course, satisfaction of the s.102(8) preconditions for granting interim injunctive relief did not resolve the further determination to be made as to the precise relief that should and should not be granted in the circumstances. In that regard:

a. Notwithstanding the plaintiff’s satisfaction of those preconditions, I was mindful throughout the process that the defendants to the plaintiff’s action and respondents to the plaintiff’s motion had not been provided with the minimum notice contemplated by s.102(6) of the Courts of Justice Act, supra, in turn preventing or inhibiting their ability to make a fulsome response to the allegations and evidence presented by the plaintiff. Experience has shown that there almost invariably are two sides to every story coming before the court, and I have little doubt that may very well be true in this case as well.

b. In such circumstances, I think it incumbent on a court being asked to grant such interim injunctive relief to bear such considerations in mind, and make reasonable efforts to limit the relief being granted to that relief which seems truly necessary and appropriate to address immediate concerns that reasonably cannot wait to be addressed on a more fulsome and balanced evidentiary record; e.g., at a further return of such a motion to address the possibility of more extended interlocutory injunctive relief to address the complaints and concerns of the party seeking assistance from the court.

c. To that end, I gave careful consideration to tailoring the granting of interim injunctive relief to those measures necessary to address and hopefully eliminate the potential for irreparable harm to private and public interests over the four-day period in respect of which I was being asked to grant interim relief. In that regard:

i. In my view, the draft order presented by the plaintiff raised a number of concerns; e.g., insofar as it effectively addressed issues and concerns that did not require immediate resolution or injunctive relief prior to the defendants/respondents being given the ability to address such matters after the receipt of further notice, and/or which seemed likely to give rise to further disputes. For example:

1. The plaintiff’s draft order contemplated the inclusion of provisions expressly binding the union and its locals to do and not do certain things; relief that effectively would presume the court’s ability to grant such relief against the union and its locals as parties to this proceeding, despite the union and its locals having raised jurisdictional disputes in that regard. For the reasons outlined above, I think it possible to grant appropriate and effective injunctive relief that does not cross that legal bridge for the time being; i.e., by making an order that enjoins Mr Gatto from engaging in specified unlawful conduct, and all members of the public (including members of the union) having knowledge of the order from engaging in any similar unlawful conduct that effectively might aid or assist Mr Gatto in that regard.

2. While provisions of the draft order addressing picketer delay and obstruction made some allowance for lawful picketing, (e.g., permitting delay of vehicles entering or leaving the plaintiff’s property for 10 minutes, for the purpose of allowing picketers to peacefully communicate information), in my view the suggested arrangement was defective insofar as it also contemplated immediate passage of all vehicles in a line if that line reached a total of five vehicles; an arrangement that arguably would have facilitated the immediate passage of all vehicles proceeding in a convoy of five or more vehicles. (That may not have been the intention of the suggested arrangement. However, as noted earlier, care needs to be taken to ensure that the legitimate and constitutionally protected right of picketers to engage in lawful communication of their views is not effectively curtailed unduly or completely by a court order.) In my view, it was more appropriate to clarify that the progress of any particular vehicle could not be delayed, in effect, for any period longer than the prescribed amount of permissible delay enabling picketers to exercise their legitimate and constitutionally protected freedom of expression. Given the somewhat one-sided presentation of evidence inherent in the circumstances underlying the court hearing through which the plaintiff would be obtaining injunctive relief, I also thought it appropriate to extend that permissible period of delay for the purpose of legitimate and peaceful communication to 15 minutes per vehicle entering or leaving the plaintiff’s property; i.e., three times the duration of the permissible 5-minute delay for purposes of legitimate picketing communication which our Court of Appeal considered acceptable in Industrial Hardwood Products (1996) Ltd. v. I.W.A.- Canada, Local 2693 et al. (2001), 196 D.L.R. (4th) 320.

3. In my view, orders granting injunctive relief, to be meaningful and effective, clearly should avoid ambiguity or use of terms inevitably giving rise to legitimate disputes about their proper interpretation and application; i.e., so that parties affected by the order will have a clear understanding of permissible and impermissible conduct, in turn ensuring that the court’s order is capable of being enforced through appropriate contempt proceedings if and as necessary. In particular, it is well-established that a party or other person will not be found in contempt of a court order where an order is unclear; i.e., the court order alleged to have been breached must state clearly and unequivocally what should and should not be done. [25] Having regard to such concerns, I thought it unwise to grant injunctive relief using some of the terms employed in the plaintiff’s draft order which, as I say, might legitimately give rise to such interpretation disputes; e.g., as to what conduct amounts to intimidation and/or harassment, or whether any particular occupant of a vehicle entering or leaving the plaintiff’s property wished to receive any written communication from or listen to any picketer. I nevertheless did think it appropriate to include objectively certain provisions prohibiting the use of strobe lights or other flashing lights of any kind within a set distance from any entrance or exit to the plaintiff’s property, or the shining of directed light into any vehicle proceeding to or from any such entrance or exit, or being delayed at any such entrance or exit.

ii. I gave consideration to the possibility of including, in the Order to be made, more specific provisions indicating that only vehicles of a certain nature should be permitted to pass the picket lines without delay or obstruction until the matter came on for hearing again after the provision of more extended notice and an opportunity for the respondents to present a more balanced evidentiary record. For example, I considered the inclusion of more detailed provisions intended to facilitate only the transit of vehicles for the purpose of addressing and alleviating the more pressing threats of irreparable harm outlined above, such as vehicles containing personnel attending the plaintiff’s evaporation plant for the purpose of repairing its fire suppression system; vehicles containing personnel leaving or re-entering the plaintiff’s property for the purpose of inspecting the pipelines conveying brine to the plaintiff’s evaporation plant; vehicles attending the plaintiff’s mine to drain accumulated storm water; vehicles containing personnel leaving or re-entering the plaintiff’s mine property for the purpose of transporting effluent samples to testing labs; vehicles entering the plaintiff’s property to provide those inside with necessities of life; and vehicles entering and leaving the plaintiff’s evaporation plant property to unload the current contents of the storage silos located there. In the result, however, I determined that the inclusion of such provisions would create the potential for similar ambiguity and interpretation disputes; e.g., as to the true purpose for which vehicles might be entering or leaving the plaintiff’s property. After due consideration in that regard, I decided that it would be necessary and appropriate to impose objectively certain limits on the period of permissible delay applicable to all vehicles entering or leaving the plaintiff’s property, except for those vehicles clearly identifiable as emergency service vehicles. In respect to the latter, an obligation to permit the immediate transit of such vehicles is, in my view, a reasonable limitation on the right to picket.

iii. I thought it advisable to include further provisions designed to promote notice of the Order, but also provide an objective means for resolving any “on the ground” disputes as to whether any particular person had notice of the order; i.e., by provisions deeming such knowledge and awareness after a person had been offered an opportunity to receive and read a copy of the order, in turn providing such a person with a further opportunity for compliance with the Order before being arrested for any demonstrated contempt of its provisions.

32In the result, and for the reasons outlined above, I made the issued and entered Order released under my previous endorsement dated February 28, 2023.

Justice I.F. Leach Date: March 6, 2023

1Arrangements apparently have been made for a further hearing tomorrow, in relation to this matter. I will not be available then to deal again with this matter, (as I am seized of other matters previously scheduled to continue in London this week), so another judge will preside over that further hearing.

2I pause to note, (as I did during the hearing before me), that I reviewed information about that attempted train attendance provided via the affidavit sworn by Ms Lausman, but also have disregarded it for present purposes insofar as it was hearsay in nature, and therefore not appropriate in the present circumstances having regard to the legislated restrictions on hearsay evidence discussed in more detail below. Plaintiff counsel conceded as much during the course of the hearing before me, and indicated that Ms Lausman accordingly would not be called upon to provide oral testimony.

3In that regard, reliance was placed on cases such as Nipissing Hotel Ltd. v. Hotel and Restaurant Employees and Bartenders International Union et al. (1963), 38 D.L.R. (2d) 169 (Ont.H.C.), at p. 682; and Mills v. London Life Insurance Co., [2000] O.J. No. 1243 (S.C.J.), affirmed 2000 CarswellOnt 4540 (C.A.).

4In that regard, reliance was placed on Seafarer’s International Union of Canada et al. v. Lawrence (1979), 24 O.R. (2d) 257 (C.A.), leave to appeal to the Supreme Court of Canada refused June 18, 1979.

5In that regard, reliance was placed on decisions such as Century Engineering Co. v. Greto et al., [1961] O.R. 85 (H.C.), and 683481 Ontario Ltd. v. Beattie, [1980] O.J. No. 1876 (C.A.). In particular:

• In the former decision, Chief Justice McRuer, while finding sufficient evidence to restrain the conduct of two named defendants who had engaged in picketing promoting violence, declined to grant an injunction against named defendants who had been on a picketing line when violence occurred but who were not shown by any of the motion material to have been doing anything wrong.

• In the latter decision, our Court of Appeal set aside an interlocutory injunction, granted in the court below, in part because the evidence proffered by the plaintiff employer fell short of providing any basis for concluding that the three named defendants, although being identified picketers, had been parties to the interference or obstruction which gave rise to the issuance of the injunction.

6See Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General), supra, at paragraph 45.

7Ibid., at paragraphs 15-16.

8Ibid., at paragraph 38.

9Ibid., at paragraphs 21-27, and 45.

10Ibid., at paragraphs 25-27 and 38.

11See Berry v. Pulley, supra, at paragraph 46.

12Nor do I think it advisable, (having regard to the somewhat rushed and ad hoc context in which the issue was raised, limiting the opportunity for fulsome research and argument by both sides), to express further views in that regard where resolution of the issue is not required.

13See, for example: Fleming Door Products Ltd. v. Hazell, [2008] O.J. No. 3039 (S.C.J.), at paragraph 15; and Brookfield Properties Ltd. v. Hoath et al, 2010 ONSC 6187, at paragraph 32.

14See MacMillan Bloedel Ltd. v. Simpson, supra, at paragraphs 15, 27-33 and 36-37.

15Ibid., at paragraph 34.

16See, for example, the Concise Oxford English Dictionary, 11th ed., Revised, at p.366. See also Black’s Law Dictionary, 9th ed., at p.453, which defines a “day” as being “Any 24-hour period; the time it takes the earth to revolve once on its axis”.

17See RJR-MacDonald Inc. v. Canada (A.G.), supra, at p.334.

18Ibid., at pp.335-339.

19Again, see the authorities cited at footnote 13 of these reasons.

20See AirTime Express Inc. v. Teamsters Local Union No. 419, 2017 ONSC 5401, at paragraph 25, and the authorities referred to therein.

21I have emphasized the Supreme Court of Canada’s use of the word “could”, rather than “will”, because it underscores that a party requesting injunctive relief does not bear an onus of proving that such irreparable harm definitely will occur if the requested relief is not granted. Suggestions of irreparable harm that are entirely speculative and not grounded in evidence obviously will not suffice. However, a legitimate and evidence-based threat of such harm will be enough to satisfy this second component of the required analysis.

22See RJR-MacDonald v. Canada (A.G.), supra, at pp.340-341.

23See, for example, Fleming Door Products Ltd. v. Hazell, supra, at paragraph 18.

24See RJR-MacDonald v. Canada (A.G.), supra, at p.342-345.

25See, for example: Carey v. Laiken, 2015 SCC 17, [2015] 2 S.C.R. 79, at paragraph 40; Andersson v. Aquino, [2018] O.J. No. 495, at paragraph 40; Dankiewicz v. Sullivan, 2019 ONSC 6382, at paragraph 11(c); and the additional authorities referred to therein.