As Strikes Commence at Canadian Universities, a Primer on Picketing Law

Originally Post November 2008, Updated March 1 2015

In November 2008, I wrote a post describing the rules of picketing as a teaching assistant’s strike commenced at York University.   Today, a strike at the University of Toronto began and another strike at York University could commence as early as tomorrow.  In both cases, it is teaching assistants represented by CUPE that are involved.  So, I thought it made sense to repost the original post, but with updated facts to include the 2015 situation.   So here goes.
These battles are a symptomatic and predictable outcome of the transformation of Canadian universities towards the use of armies of low paid, precarious contract teachers to teach the majority of undergraduate courses on a course-by-course basis rather than as permanent employees.  I was in the York CUPE bargaining unit myself for about 3 years while I was working on my Ph.D at Osgoode Hall Law School, and I was in the U of T CUPE unit long before that.  Most full time professors did this sort of work at one time or another, but nowadays, with full time professor jobs being scarce, more and more workers are depending on these TA jobs for their livelihood and for longer periods of time.  Yet they do not know from term to term whether they will have a job a few months later.  There are some 11,000 (!) employees involved in these disputes at U of T (6000+), and York (3000+) alone.   Similar battles are brewing at other Canadian universities.  The system will need a fix, or these strikes will be a regular occurrence every few years.
The laws governing picketing are greatly misunderstood.  Therefore, this is a good time to review some basic rules of picketing.
Picketing Law 101
The Ontario Labour Relations Act governs a lot of things relating to unions, collective bargaining, and industrial relations,  but picketing in association with a lawful strike is not one of them.  In fact, the word picketing never even appears in the LRA,  although the legislation does regulate picketing indirectly in a couple of respects. Section 83(1) says that any behaviour that might cause someone to engage in an ‘unlawful strike’ is illegal.  Picketing could cause someone to engage in an unlawful strike.  For example, if my colleagues and I show up to work this week and we are met by a picket line, we may agree amongst ourselves to support the picketers and go home rather than go to work.  If we do that, we would be engaged in our own strike, and that strike would be illegal, since unlike the TA’s, full time professors are not in a legal strike position. Therefore, the CUPE picketing on the university campuses could violate Section 83(1).

However, section 83(2) then clarifies that section 83(1) does not apply to picketing in association with a lawful strike.  This means that the LRA does not prohibit striking York and U of T teaching assistants from from picketing at the campuses, even though it could provoke a sympathy strike by other workers who are not in a legal strike position.
The unfair labour practice provisions of the LRA regulate some types of conduct by picketers.  For example,  Section 80 of the LRA grants a limited legal right to workers in a bargaining unit that is on strike to cross the picket line and return to work if the employee’s job is still being performed.  Since York intends to cancel classes, it’s unlikely the issue of crossing the picket line to continue working will arise at York.  However, insofar as U of Toronto intends to keep running its courses, it is possible that some TA’s there will seek to cross the picket line and continue their jobs.  If a picketer were to threaten a colleague who crosses the picket line, then that threat could be a violation of the prohibition in Section 76 against threats and coercion made against people who exercising statutory rights.
However, most of the law that governs picketing during a legal strike is common law, and not statutory law.  Peaceful picketing is giving a wide birth in our law, for the obvious reason that it constitutes freedom of expression and is a central, normal, and expected part of our industrial relations system.  The Supreme Court ruled in the seminal 2002 Pepsi-Cola Canada decision that peaceful picketing in association with a legal strike is protected by the Charter of Rights and Freedom’s protection of freedom of expression.  The Court ruled that picketing is assumed to be lawful, unless it is conducted in unlawful manner. There has been lots of debate among us labour law types about what that means.
It clearly means that the picketers cannot engage in criminal conduct, such as criminal assault.  Obviously if a picketer punches someone they are acted illegally, and they can be charged criminally and also disciplined or even fired by the employer.  Picketers are not immune from work-related discipline for serious misconduct on a picket line.  But they cannot be disciplined or fired just for picketing.  The LRA guarantees workers a right to legally picket during a lawful strike.
Picketers also cannot engage in ‘torts‘ on the picket line, which are civil wrongs, such as defamation, trespass (that is why the picketers will likely set up near the public roads and sidewalks), and nuisance, which includes preventing someone from entering property they have a legal right to enter.  So, if picketers physically prevent people from crossing the picket line, they may be committing the tort of nuisance, which could permit York or U of T to obtain an injunction restricting the picketing.  Picketers also can’t commit ‘economic torts’, which are torts invented by judges over the years largely designed to restrict the effects of picketing on third parties.  One such tort is inducing breach of contract, which could apply if picketers encourage people who have a contract with York or U of T (such as other non-bargaining unit employees, suppliers, etc.) to breach their contract with the university by not crossing the picket line.
However, even if the picketers engage in a tort, there are still a number of legal hurdles to overcome before a court would restrict the picketing.  Those hurdles are set out in section 102 of the Court of Justice Act. One of those hurdles is that the police must first be called to the scene, and have been unable “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”.  Certainly in the past, the police have not always remained neutral in labour disputes and have been known to aggressively side with the employer, including through violence and mass arrests of picketers.  However, recently Canadian police forces have taken a more hands off approach and limited their intervention to dealing with clear breaches of the law, such as picket line violence or clear obstruction.
In short, as long as the picketers do not threaten or intimidate people, or injure property, their picketing is unlikely to be restrained by the courts.  In practice, unions usually negotiate some sort of picketing protocol with the employer, sometimes with police cooperation, that sets out the rules that will be followed.  Those rules often permit picketers to stop cars for a defined period of time (say 5 minutes per car) entering employer property to communicate about the strike.
For a good case to give you a sense of how courts deal with picketing that slows people from entering the place struck, read this case called Cancoil Thermal Corp. v. Abbott, where the court refused to grant an injunction to stop picketers from stopping cars for 15 minutes per occupant of a car as the car entered the employer’s property.
Let’s hope for a short dispute!