By David Doorey, Professor of Work Law, York University
NOTE: See my update of the Canada Post situation here.
An interesting under-the-radar decision was issued last week involving the Canada Post strike. CUPW strikers set up a picket line outside a delivery facility owned by Purolator, a courier company that is almost (91%) wholly owned by Canada Post. Purolator employees are represented by a different union. Purolator is benefitting from the Canada Post work stoppage by a boost in business.
Here is the order issued ex parte (explained below) by the court on November 29.
Background
On Thursday, November 28, CUPW picketers set up at the exit of the Purolator facility and, if a vehicle stopped, they discussed the Canada Post strike with the driver for about a minute or so. The next day, around 20 picketers began “blockading access to and exit from the facility.” Purolator trucks were stopped for between 15 and 31 minutes throughout the day. Police were called, but as is usually the case (unless it’s the police at York University for reasons that remain suspicious), they refused to intervene in non-violent labour picketing. Note that Purolator likely called the police because doing so is a precondition for obtaining a labour injunction in Ontario as per the Court of Justice Act. This is notable, for reasons we will see shortly.
Purolator claimed that the picketing resulted in only 27 out of a planned 78 vehicles being able to leave on Friday. On the morning of Friday, November 29, Purolator filed an ex parte application for an injunction to stop the picketing. An ex parte injunction application is one in which no other party is given notice. The fact that the company has gone to court asking for an order restricting freedom of expression and association is a secret. There’s a long and sorted history of employers and friendly judges quashing the right to picket through these secret hearings, so much so that Canadian governments eventually intervened to prohibit ex parte injunctions in labour picketing cases.
In Ontario, that prohibition appears in s. 102 of the Courts of Justice Act, which reads: (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.” Subsection (8) allows an ex parte labour injunction when “the case is otherwise a proper one for the granting of an interim injunction” or the delay it would cause would result in “irreparable damage or injury, a breach of peace, or interruption in an essential public service.”
In this case, there was no reason why Purolator’s lawyers could not have given notice of the application to CUPW’s lawyers. They just choose not to. The judge noted as much and expressed that he “remained troubled” by the lack of notice. Nevertheless, the injunction requested by Purolator was granted without hearing from CUPW. The judge conceded in the written reasons issued a week later (on December 6): “With the benefit of hindsight, the technically perfect answer may have been to decline to hear the motion until CUPW had been given at least the courtesy of a phone call.” Well, yes, or maybe just comply with the Courts of Justice Act?
Court Rules Picketing Protections in Court of Justice Act Don’t Apply to “Secondary Picketing”
The reason the judge decided an ex parte injunction could be issued notwithstanding finding that CUPW could and should have been given notice is that the judge also ruled that the Courts of Justice Act doesn’t even apply here. That’s interesting. Follow along.
The ban on ex parte injunctions applies to picketing “in connection with a labour dispute”. A “labour dispute” is defined in s. 102(1) of the CJA as a dispute “concerning terms and conditions of employment…regardless of whether the disputants stand in the proximate relation to employer and employee.” The judge ruled that the use of “the disputants” must mean that the ban on ex parte injunctions in the CJA only applies to what we used to call “primary picketing” at the site of the actual struck employer. I say, “used to call”, because the Supreme Court essentially rendered that distinction moot in 2002. More on that in a minute. The judge described Purolator as a third party business and the picketing here as “secondary picketing”. Therefore, the judge ruled that, with some narrow exceptions, such as when the target of the picketing is the “alter ego” of the struck employer, the CJA does not apply to secondary picketing. Purolator was not the “alter ego” of Canada Post.
Having disposed of the need to comply with the pesky restrictions in the Courts of Justice Act, the judge applied the usual test for granting an interim injunction and easily found in Purolator’s favour, ruling:
- that Purolator had pleaded a strong prima facie case that the picketers were engaged in the tort of nuisance by impeding trucks;
- that “irreparable harm” is demonstrated whenever there is a strong case for nuisance.
- That the “balance of convenience” favors a business whenever picketers are engaged in nuisance.
Therefore, the judge had no difficulty at all ordering an ex parte injunction to restrain picketing. Basically, the decision stands for the proposition that ex parte injunctions can be issued the prohibit all secondary picketing (even when the struck employer owns 91% of the company) any time that picketers impede a truck’s entry into or exit from a facility.
Have We Returned to the Pre-Pepsi Canada World in Which Secondary Picketing is “Illegal Per Se”?
This is a sweeping decision that appears to render entirely meaningless the Supreme Court of Canada’s dissolution of the distinction between primary and secondary picketing in the Pepsi-Cola Canada decision.
There is no question that, if this picketing was taking place at a Canada Post facility (primary picketing), then picketers would have been permitted to stop trucks for a period of time, up to 15 minutes, for example. However, even in cases of picketing at “third party” facilities that are not the strikers’ workplace, courts have permitted picketers to stop cars for brief periods. The judge in the Purolator decision even acknowledges this, referencing the recent Metro Ontario Inc. decision in which Teamsters representing striking Metro store workers were permitted to picket out front of a distribution centre where employees were represented by a different union, and to delay trucks “to a cumulative total of 12 minutes.” (see para. 51) In the Metro decision, the judge noted that “picketing is an important constitutionally protected right.” Interestingly, the court in Purolator also recognized that picketing is constitutionally protected, but then goes on to block all picketing anywhere near the Purolator driveway.
Granted, in the Metro case, the facilities in question were wholly owned by Metro, rather than just 91% owned as in the Purolator case. Notably, though, no one questioned in the Metro case that the Courts of Justice Act applies to picketing outside of a facility that is not directly involved in the labour dispute. Unlike in the Purolator case, the plaintiff’s lawyers in Metro gave proper notice to the Teamsters and the court fully applied the CJA while deciding that limited picketing was permissable.
A curious aspect of the Purolator decision is that the court seemed entirely fine with the CUPW picketing on the driveway that took place on Thursday, involving informational picketing to truck drivers who stopped to talk. Even if the court wasn’t prepared to permit time-limited obstruction like in the Metro decision, the court could at least have permitted CUPW picketers to continue with the Thursday model of informational picketing, speaking to drivers entering and exiting. Instead, the court said the picketers must go stand in a Purolator parking lot, away from the driveway so as not to impede in any manner any truck entering or existing the facility.
In all likelihood, this curious decision will stand because CUPW is unlikely to appeal it (although I have no inside information in this regard). However, it will be interesting to watch whether future decisions follow the reasoning. The decision basically prohibits all secondary picketing that in any way obstructs a vehicle for any amount of time. That sweeping restriction seems to bring us back to the pre-Pepsi Canada era in which secondary picketing was deemed illegal per se. It is hard to see how the Purolator outcome is in any way different than the typical result in the pre-Pepsi era.
I’m reminded of Professor Harry Arthurs’ frequent retort when confronted by jubilant commentators predicting that the Pepsi decision would finally restrain activist judges hell bent on restricting picketing rights: “Just wait”, Harry would say. And here we are. //