A strike is underway at a Sobey’s warehouse in Milton, Ontario. The employer sought an injunction to prevent delays in getting perishables across the picket line. The Superior Court granted the injunction and provided its reasons
recently.
The Court noted that police generally refuse to get involved in policing picket lines, unless there’s violence involved. The Court also noted that most unions realize that violence is not appropriate.
The Court recognized that the dynamics of a strike played a role in crafting an appropriate injunction (at paragraph 40):
… 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. As noted by Goudge J.A. in Industrial Hardwood, “A robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute”. In my view, that reflects the appropriate balance.
The Court refused to accept the argument that a measure of delay in crossing the picket line is a corollary of the constitutional right to convey information through picketing (at paragraph 42):
… freedom of expression does not require anyone to listen. As noted by the late Archie Campbell J. in Trieger at al v. Canadian Broadcasting Corp. et al (1988), 66 O.R. (2d) 273 (H.C.J.), at p. 282, “As to free speech, the right to speak does not necessarily carry with it the right to make someone else listen or the right to make someone else carry one’s own message to the public.” In Canada Post Corp. v. Canadian Union of Postal Workers (CUPW), (1991), 84 D.L.R. (4th) 150 (Ont. Gen. Div.), Montgomery J. quoted with approval the statement of Douglas J. in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974), at p. 307, “While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it.”
However, the Court held that delaying people seeking access to property in a labour dispute can be accommodated through the normal discretion the Court has in formulating an appropriate remedy.
In crafting an appropriate injunction, the Court stated that it must be sensitive to the interests of both parties (at paragraph 46):
… This simply means that the employer who seeks access to its property may be required, as a condition of securing the assistance of a court of equity, to live with a certain amount of inconvenience. …
In obiter the Court stated that delay may not be accommodated in every case, for example, where the nature of the employer’s business, and/or the sheer volume of traffic will not accommodate any delay. Also, discretion is unlikely to be exercised in the picketers’ favour if they have not observed an order permitting some delay or if there is violence on the picket line.
The Court strayed far from the issue before it when it opined on secondary picketing (at paragraph 49):
While the matter is not before me, I think there would be less toleration of delay in the case of pure secondary picketing, that is, in a case where the picketed employer has no relationship with the striking trade union, and little relationship with the struck employer. In such a case, I think a strong argument could be made that picketing should remain informational only, without its coercive elements. The rationale for maintaining an appropriate balance, as in the case of a lawful strike, would usually be lacking. Of course, different considerations may apply depending on the relationship between the struck employer and the picketed employer, and the degree of assistance, if any, that is being given to the struck employer by the picketed employer…
The Court concluded with a plea for the negotiation of picketing protocols, to limit the need for intervention of the police and the courts. In addition, when protocols are violated, “it is often appropriate for the Court to simply incorporate the terms of the protocol into an order, without any further analysis”.