August 29, 2023
I worked for years at the giant #Metro distribution centre on West Mall in Etobicoke when I was a university student. I was an order selector and part-time union steward. Back then it was owned by A& P and the union was RWDSU. Good job. This week, striking employees of a group of Metro grocery stores descended on the West Mall warehouse and other distribution centres to picket. This is considered secondary picketing in the technical sense that the employees on strike do not work at the distribution centres. Apparently, the picketing involved blocking the roads in and out of the warehouses. Yesterday, an Ontario judge heard an application by Metro for an interim injunction to stop the picketers from blocking the roadway.
This morning, the decision was issued granting an interim injunction.
Picketing law is a little complicated, but in a nutshell, all picketing is lawful unless it is done in a manner that is unlawful. Unlawful picketing involves either criminal behaviour or tortious behaviour. Lots of torts can apply to picketing. In this case, Metro alleged that by blocking roadways, the picketers were engaged in the tort of nuisance. Nuisance applies when conduct by picketers prevents people from entering or exiting on a roadway that they are entitled to use.
Metro was seeking an “interlocutory” injunction. That is a temporary order that restrains the picketing until such time as a trial can be held to determine if the picketing is actually tortious. Often the interlocutory injunction is all that is needed, because by the time that a trial is scheduled and decided, most labour disputes are resolved. In this case, the court issues an interim injunction that last only 4 days. That would mean that if the picketing resumes this weekend, Metro would presumably need to return to court.
The court ruled that Metro established all of the requirements for an injunction. Here is a brief summary of the decision.
Did Metro Satisfy the Requirements of the Courts of Justice Act? Yes.
The Court of Justice Act, section 102(3) requires as a prerequisite of a labour injunction that the employer first attempt to ask the police to solve the problem, such as by ordering the picketers to stop blocking the road. Only if the police are called and refuse or are unable to stop the blockade can an injunction be issued. Here, Metro called the police, who refused to intervene as per their policy of only intervening if safety or property at risk.
Did Metro Satisfy the RJR MacDonald Test for Obtaining an Interim Injunction? Yes
The courts are guided by the famous test in a case called RJR MacDonald. That is a 3-part test.
Is there a serious issue to be tried?
Yes. Metro has raised serious issue re whether picketers are engaged in tort of nuisance by blocking roads.
Will Metro suffer irreparable harm if the injunction is not granted?
Yes. A complete blockade is a tort and irreparable harm is established since damages after a trial will not solve Metro’s problem. Perishable goods are at risk because of the blockade.
Does the ‘balance of convenience’ favour granting the injunction?
Yes. The blockade has lasted 6 days and will likely continue if not restrained. The injunction will not prevent strikers from picketing, provided they do so in a lawful manner. On balance, the circumstances favour issuing an injunction.
The Court adopted the Order drafted and proposed by Metro, which prevents picketing that blocks entry and exit from the warehouses until 11:59 pm on Friday, September 1. I am not sure why the Order expires at that point?
However, the Order also carves out a limited right of picketers to still stop non-emergency vehicles for up to 5 minutes to convey information. Here is the Order in that regard:
Picketers may delay any tractors, delivery trucks or tractor-trailers entering or exiting the Premises for the purposes of peacefully communicating information for a maximum of 5 minutes. At the end of every 10 minute period, the first such vehicle and the 9 following vehicles (or such lesser number as may be stationary in the line) shall be cleared for entry or exit by Picketers without delay;
Note that this is an example of how modern courts balance the Charter protected right to picket in support of a lawful strike with the right of others to not be subject to unlawful (tortious) behaviour. The Court here is essentially saying that picketers can engage in nuisance (stopping vehicles) within strictly defined temporal boundaries.
If the picketers were to continue to block the road beyond the limits defined in the Order, they (and Unifor) would expose themselves to a potential contempt of court proceeding, which could result in fines and, in theory, imprisonment. Let’s keep an eye on what happens next!