Written by Ronni Nordal, Q.C.
The purpose of communication of information on a picket line is to persuade and by means of that persuasion to inflict economic harm on the employer. As Supreme Court Justice Brian Dickson J. (as he then was) stated in CUPE v. N.B. Liquor Corporation:
The traditional view of the picket line is that it is simply informative. But its real purpose, as recognized by Mr. Justice Limerick, goes beyond that. Generally, the purpose is to shut down the employer’s operation, or at least to make it difficult to maintain the operation. This is done by dissuading various groups and individuals from having anything to do with the employer. In a heated confrontation, this attempt to discourage extends also to managerial personnel. The employer, by contrast, tries to maintain his operations by using managerial personnel to do the work of strikers, by hiring strike breakers, and by maintaining lines of communication for incoming supplies and services, and outgoing products. In private sector labour relations, these efforts on both sides are typically legal and an integral part of the economic conflict.
In contemporary Saskatchewan, the employer’s ability to immediately obtain a Court injunction on short notice or no notice at all to the union in order to restrain labour picketing has significantly limited, if not eliminated, the ability of union members to use picket lines as a means of exerting economic pressure on an employer with a view to reaching a fair and reasonable collective bargaining agreement. The fact that the law permits employers to use replacement workers, even when the work stoppage is due to a lockout rather than a strike, has allowed employers to mitigate any potential harm to business operations. The pendulum has swung too far in favour of employer interests in Saskatchewan.
In Canadian National Railway v. Teamsters, the union was served with an application for injunction late in the day on November 19, 2019, returnable at 10 a.m. the next morning. The Union was required to retain legal counsel in Saskatchewan who then prepared over the course of the night and appeared in Chambers seeking an adjournment. The adjournment request was denied, and an injunction was issued, “to put an end to vehicular or pedestrian traffic being stopped from or delayed in entering or leaving he employer’s premises”.
On December 5, 2019 at 5:30 p.m., Consumer’s Co-op Refineries Limited (CCRL) locked out its employees. On or about December 15th, CCRL brought an application for an injunction without notice to the Union filing thousands of pages of affidavits and exhibits, returnable on December 17th. An interim order limiting the time entrance/exit could be delayed for the purpose of conveying information to 5 minutes was granted on December 17th. The hearing proceeded on December 23, 2019, Madam Justice McMurtry issued an interim injunction on December 24, 2019 restraining Unifor:
“from impeding, obstructing, or interfering with the ingress or egress to or from the applicant’s property, except for the purpose of conveying information and/or soliciting support and the restriction of access to or exit from the said premises, shall only last as long as necessary to provide information, to a maximum of 10 minutes, or until the recipient of the information indicates a desire to proceed, whichever comes first.”
This order essentially ruled that unions cannot even delay the crossing of a picket line if a person says they do not want to be delayed. That is about as narrow a right to picket as can be imagined short of an outright ban on all picketing. Faced with this broad restriction on the right to picket, the locked out Unifor members and Unifor National continued to picket and CCRL brought another application requesting that the Union be found in contempt of the original interim order.The Union was found in contempt and ordered to was ordered to pay a $100,000.00 fine
While the contempt application was under reserve the Union took measures which resulted in the entrances to the CCRL being blockaded. Again on short notice, CCRL filed a further application for contempt complete with voluminous affidavits and exhibits. The return date was originally February 4, 2020 but was adjourned on consent to February 6, 2020 at which time counsel for the Union requested an adjournment or, in the alternative, bifurcation between liability and penalty. All requests of the Union were denied and the hearing proceeded with the Union and one of the two named executive members being found in contempt. On February 12, the Union was ordered to pay a $250,000.00 fine and the blockades were ordered to be removed with the CCRL being granted the right to access assistance from the Regina Police Service to enforce the injunction.
Approximately 750 members of Unifor Local 594 remain locked out by CCRL. As Saskatchewan does not have anti-replacement worker legislation, from the outset of the lockout CCRL has maintained operations used replacement workers. The CCRL continues to produce product and continues its operations.
The Supreme Court of Canada has long recognized the legitimate use of economic pressure during job action:
Labour disputes may touch important sectors of the economy, affecting towns, regions, and sometimes the entire country. The cost to the parties and the public may be significant. Nevertheless, our society has come to see it as justified by the higher goal of achieving resolution of employer-employee disputes and the maintenance of economic and social peace. The legally limited use of economic pressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage the parties to resolve their differences in a way that both can live with.
In other Canadian jurisdictions, courts have more carefully balanced the competing rights at stake in labour picketing than have the Saskatchewan courts.
For example, in Ontario, courts have recognized that a right to picket includes a right to communicate that involves imposing some delay on people who approach a picket line. Justice Gray put it this way in a case in which he upheld a right of picketers to delay people for up to 15 minutes:
What is on foot is an economic struggle. To permit the employer unfettered access to its property, without any delay, would swing the pendulum too far in one direction. However, to permit delays that are extreme would swing the pendulum too far in the other direction. In my view, while the employer must be permitted access to its property, and to carry on business if it can, it is not entitled to conduct its business with no inconvenience.
The measure of what is an “extreme delay” will be fact specific. Saskatchewan courts have swung the balance too far in favour of employer interests by issuing orders on behalf of employers, frequently on short notice to the union and workers, that effectively prevent picketers from engaging in any activities that could delay anyone approaching a picket line.
While Courts continue to recognize workers’ right to picket, the fact that picketing is not only for the purpose of sharing information but rather is also for the purpose of “inflicting economic harm” appears to be forgotten in Saskatchewan. Where replacement workers are permitted and used by an employer, the lengths to which a union must go in order to create the economic harm necessary to push an employer toward settlement are increased substantially. Is a reasonable balancing of interests struck when statute grants the employer a right to lock out its workers and hire replacements to run the operation and the courts intervene to prevent picketers from so much as delaying people from crossing a picket line if they indicate they want to be let through? Are we comfortable that Saskatchewan workers still have a meaningful right to picket that ensures their ability to exert real economic harm on their employer?
To date, any appeal of an interim injunction has been withdrawn at the time of settlement of the labour dispute and thus the issue has not been addressed except at the interim application stage. The required balancing will hopefully occur in a higher Court should an appeal of an interim injunction ever proceed.
Ronni Nordal, Q.C., “Is There a Meaningful Right to Picket in Saskatchewan?” Canadian Law of Work Forum (March 11, 2020): http://lawofwork.ca/elementor-11888/
Potash Corp. of Saskatchewan v. Todd, 1987 CanLII 4918 (SK CA)
Canadian National Railway Company v. Teamsters Canada Rail Conference,Sask. Q.B.G 1671 of 2019 (unreported fiat)
Ibid at para 31
Consumer’s Co-operative Refineries Limited v. Unifor Canada, Local 594, QBG 3302 of 2019 (December 24, 2019 Judgement)
Ibid at para 41
Consumers’ Co-operative Refineries Limited v. Unifor Canada, Local 594, QBG 3302 of 2019 (January 22, 2020 Judgement)
Consumers’ Co-operative Refineries Ltd. v. Unifor Canada, Local 594, Lance Holowachuk, Kevin Bittman and Evan Bray, Chief of Police of the Regina Police Service, QBG 3302 of 2019 (February 12, 2020 Judgement)