IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION.

Citation: Toromont Cat v. International Union of

Operating Engineers, Local 904, 2007NLTD212

Date: 20071211

Docket: 200701T4516

BETWEEN:

TOROMONT CAT, a division of

TOROMONT INDUSTRIES LTD. PLAINTIFF

AND:

INTERNATIONAL UNION OF OPERATING

ENGINEERS, LOCAL 904 DEFENDANT

___________________________________________________________________

Before: The Honourable Mr. Justice Michael F. Harrington

___________________________________________________________________

Place of hearing: St. John's, Newfoundland and Labrador

Date of hearing: December 10, 2007

Appearances: Christopher J. Peddigrew for the Plaintiff

V. Randell J. Earle, Q.C. for the Defendant.

Authorities Cited:

Cases: Canada Games Park (1995) Inc. v. Canadian Public Employees, Local 3336, [1995] N.J. No. 302; Pepsi-Cola Canada Beverages (West) Ltd. v. Retail Wholesale and Department Store Union, Local 558, 2002 SCC 8 (CanLII), [2002] 1 S.C.R. 156; St. John's International Airport Authority Inc. v. Public Service Alliance of Canada et al (200301T2254 SCNLTD) May 12, 2003 Oral Decision (Transcript filed May 13, 2003);

Statutes: Labour Relations Act, RSN 1990 c. L-1; Canadian Charter of Rights and Freedoms

REASONS FOR JUDGMENT GIVEN ORALLY DECEMBER 11, 2007

HARRINGTON, J.:

INTRODUCTION

[1] This is a return application seeking an interlocutory injunction arising from an interim injunction (on application ex parte) of October 26, 2007, directing that striking employees of the Plaintiff or members of the Defendant Union refrain from blocking, obstructing, threatening or intimidating parties, including employees and customers seeking entry to and exit from the Plaintiff's premises on Kenmount Road, St. John's, Newfoundland and Labrador. The Union is engaged in a lawful strike against the Plaintiff employer.

[2] The Defendant Union has filed an appeal with respect of the interim ex parte order on the grounds that the Plaintiff was not entitled to such an order in the course of a legal strike by virtue of s. 134 of the Labour Relations Act, RSN 1990 c. L-1, and the requirements of a Practice Note of this Court [P.N. (TD) No. 2004 - 02 (NL Gazette August 20, 2004)]. The parties appeared on October 30, 2007, at which time an inter parties application for continuance of the injunction was adjourned until December 10, 2007.

[3] In the interval, the Plaintiff made a further application seeking a more extensive injunction prohibiting all picketing at the Plaintiff's premises or, in the alternative, limiting the number of picketers. The Plaintiff relied on affidavits sworn November 22, 2007 alleging that certain unlawful acts, including an assault and damage to property, had occurred since the issuance of the injunction.

[4] By an order granted orally, the Court denied the request by the Plaintiff for any further order beyond the order granted on October 26, 2007.

ISSUE

[5] The sole issue in the application is whether the interim injunction should be continued on an interlocutory basis pending a trial, or earlier order, or conclusion of a new collective agreement.

POSITION OF THE PARTIES

[6] The new affidavit evidence before the Court, sworn November 22, 2007, comes from two employees of Frontline Transportation, an Ontario company contracted during the strike by the Plaintiff to pick up and deliver heavy equipment parts to and from the Plaintiff's customers. They commenced their work November 21, 2007. The Defendant refers to these workers as "strike breakers", whose presence the Union counsel contends has heightened the tension at the struck employer's premises.

[7] Counsel for the Plaintiff employer contends that there is no statutory bar that prohibits unionized employers who are legally struck from hiring outside workers during a strike to carry on all or part of the employer's business. The enactment of legislation to this effect has been advocated in recent times by the trade union movement but this Province has not followed the minority of provinces which have adopted such legislation. The issue has also recently been hotly debated at the federal level as to whether Parliament should enact proposed legislation prohibiting the hiring of outside workers during a lawful strike affecting federal employers.

[8] The affidavits refer to incidents which occurred November 21 and 22, 2007 when as many as eight picketers were observed picketing at the main entrance of the Plaintiff's parking lot on Kenmount Road.

[9] The van operated by the two employees of Frontline Transportation was able to enter the Plaintiff's premises with some delay. However, during their effort to leave the Plaintiff's premises there was an incident reported when a window on the driver's side was smashed by a picketer and the driver of the van was punched in the chest on several occasions. There is also a report that shortly after the assault of the van driver, another picketer threw a rock at the van but failed to make contact. I have reviewed video image of these activities. There was also a report that picketers used the wooden butt end of their picket signs to strike sections of the van, including the grill, causing the van to become immobilized.

[10] Further, there is another incident reported which occurred on the afternoon of November 22, 2007. One of the picketers allegedly struck and broke a piece of the passenger side mirror of the van at a time when there was a police officer parked on the north side of Kenmount Road, approximately 15 feet from the entry/exit of the Plaintiff's premises. Counsel for the employer also contends that the usual size of the number of picketers justifies the continuing of the injunction because of the delays and obstruction that has occurred to customers or agents of the Plaintiff.

LAW

The right to picket employers' premises.

[11] During a lawful strike, s. 128(1) of the Labour Relations Act, allows union members to "peacefully persuade and try to persuade anyone not to" enter the employer's place of business, deal in or handle the employer's products or do business with the struck employer.

[12] Barry, J. (as he then was) of this Court discussed the object of picketing in the case of Canada Games Park (1995) Inc. v. Canadian Public Employees, Local 3336, [1995] N.J. No. 302, at para. 4:

"The Supreme Court of Canada has recognized picketing as a constitutionally protected form of expression, aimed at showing solidarity as well as persuading. Thus Dickson, C.J.C. stated in British Columbia Government Employees' Union v. British Columbia (Attorney General) (1998), 1988 CanLII 3 (SCC), 87 N.R. 241 (S.C.C.), at pp. 260-61:

'Picketing is a crucial form of collective action in the area of labour relations. A picket line is designed to publicize the labour dispute in which the striking workers are embroiled and to mount a show of solidarity of the workers to their goal. It is an essential component of a labour relations regime founded on the right to bargain collectively and to take collective action. It represents a highly important and now constitutionally recognized form of expression in all contemporary labour disputes...

One of the great strengths of the trade union movement is the spirit of solidarity. By standing together as a collective whole, trade unionists are able to aspire to improved wages and working conditions unattainable if each individual member were left to his or her own devices. Solidarity is made manifest when one group of workers is on strike. Fellow unionists and other sympathetic members of the public are made aware of the strike by the presence of picketers. Picketing sends a strong and automatic signal: do not cross the line lest you undermine our struggle; this time we ask you to help us by not doing business with our employer; next time, when you are on strike, we will respect your picket line and refuse to conduct business with your employer.'"

Justice Barry further wrote at para. 5:

"The freedom of expression involved in picketing must be exercised so as not to engage in tortious conduct." [See Chum Ltd. v. N.A.B.E.T., Local 915 (1985), 55 Nfld. & P.E.I.R. 215 NLTD.]

[13] In Pepsi-Cola Canada Beverages (West) Ltd. v. Retail Wholesale and Department Store Union, Local 558, 2002 SCC 8 (CanLII), [2002] 1 S.C.R. 156, the Supreme Court of Canada affirmed the right to picket an employer's place of business and as well secondary picketing sites as a constitutionally protected Charter right to free expression enshrined in s. 2(b) of the Canadian Charter of Rights and Freedoms. The focus in that case was the issue of secondary picketing and not primary picketing as is the situation here.

[14] However, the Court also made clear that the exercise of freedom of expression must still be within the objective of picketing which is peaceful persuasion as contemplated expressly by s. 128(1) of the Labour Relations Act or similar statutory provisions.

[15] In recognizing the constitutionally protected right to freedom of expression, the Court did not eliminate any protection of a struck employer from tortious or criminal acts. The Supreme Court of Canada at para. 27 said:

"In labour law, picketing is commonly understood as an organized effort of people carrying placards in a public place at or near business premises. The act of picketing involves an element of physical presence, which in turn incorporates an expressive component. Its purposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients..."

[16] In para. 30 of its decision, the Supreme Court went on to say:

"The above discussion illustrates the difficulty in defining picketing in a detailed manner. Picketing represents the continuum of expressive activity. The labour context it runs the gamut from workers walking peacefully back and forth on a sidewalk carrying placards and handing out leaflets to passers-by, to rowdy crowds shaking fists, shouting slogans, and blocking the entrances of buildings. Beyond the traditional labour context, picketing extends to consumer boycotts and political demonstrations (see Daishowa Inc. v. Friends of the Lubicon (1998), 1998 CanLII 14828 (ON SC), 39 O.R. (3d) 620 (Ont. Ct. (Gen. Div))). Ontario General Division). A picket line may signal labour strife. But it may equally serve as a physical demonstration of individual or group dissatisfaction on an issue."

[17] In the final analysis however there is a weighing of the constitutionally protected right of picketing as expressive action and the maintenance of order and the rule of law. At para. 32 the Court said:

"Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression, enshrined in s. 2(b) of the Charter. This Court's jurisprudence establishes that both primary and secondary picketing are forms of expression, even when associated with tortious acts..."

[18] On the other hand, the Court said at para. 36 that:

"... freedom of expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately be curtailed. Thus, s. 2(b) of the Charter is subject to justificative limits under s. 1."

[19] It seems that the Supreme Court of Canada was at least recognizing that the congregation of employees in groups at the entry and exits of struck employers' premises was a means of signaling solidarity with fellow workers and a desire for support from fellow unionists and the public in the effort to achieve a new collective agreement.

[20] However, the Court in my view was not at the same time suggesting that there is a recognized right of picketers to engage in criminal or tortious acts that include obstruction, intimidation, threats, undue delay and inconvenience to customers of the struck employer or its employees or its agents, or the general public. This consideration is especially important in a case where entrances and exits to picketed premises are immediately adjacent to busy roadways or involve the blockade of public roadways.

[21] Orsborn, J. in a ruling rendered orally on May 12, 2003 (transcript filed May 13, 2003), in the case of St. John's International Airport Authority Inc. v. Public Service Alliance of Canada et al, 200301T2254 SCNLTD, said the following at pp. 8 and 9:

"But it should not be overlooked that what the law protects is the peaceful exercise of freedom of expression. It does not protect a right of expression through tortious or criminal means. Freedom of expression is indeed a fundamental and protected Canadian value. But the freedom to express oneself, either individually or collectively, does not carry with it or incorporate the right to acquire a captive audience; it does not carry with it the right to compel anyone to receive or listen to the information sought to be conveyed and it does not carry with it the right to intentionally or deliberately obstruct, delay and impede others as they go about their lawful business.

To suggest that the right of freedom of expression carries with it or incorporates the legal right to intentionally impose delay or inconvenience on others through the use of physical obstruction, human or otherwise, would be a perversion of the protective value. Such a suggestion seeks to have unlawful conduct masquerade as, and be cast off as, legitimate freedom of expression."

ANALYSIS

[22] Counsel for the Union suggests that the continuance of the injunction is not required because any episodes of improper behaviour by individual members of the striking Union have been dealt with by members of the Royal Newfoundland Constabulary by arresting those employees involved in the incidents which have been reported; charging them with Criminal Code offences and arranging their release on undertakings not to participate in any future picketing.

[23] It is now customary in injunction orders granted by this Court to authorize the police to enforce the order of the Court as required. This is to give authority to the police to take steps to bring order to any disturbances at a picket line regardless of whether the strike that is underway is legal or not.

[24] I reject this submission by Union counsel on the basis that even the right of employees to congregate in larger numbers as an expression of solidarity and a signal to fellow unionists and sympathetic members of the general public (see Canada Games Park (1995) Inc., supra, para. 4) is not a license to carry out obstruction and undue delay at the employer's place of business, especially in a case such as this where the entrance to the Plaintiff's premises is immediately adjacent to two west bound lanes of a busy four-lane roadway within the City of St. John's that is heavily traveled, particularly during the business day.

[25] The risk of confrontations at the Plaintiff's entrance has to be considered in the context of the particular location where the disruption of busy vehicular traffic may impair the safety of both the motoring public, as well as the individuals who are congregating at the entrance of the premises either as picketers or persons trying to enter or leave the struck employer's premises.

[26] I also reject the Union's argument that since the police have been able to restore order at the site of the picketing when called upon, there should not be undue encroachment upon the Union's right to conduct lawful picketing as a group.

[27] It appears from the supplementary affidavit material from the Plaintiff that it has been necessary to call upon members of the Royal Newfoundland Constabulary on a number of occasions, not only to assist in allowing persons in vehicles to leave the Plaintiff's premises but also to deal with incidents of assaults, rock throwing and damage to property during some of these incidents. I am especially concerned that the reported broken van mirror incident of November 22nd occurred while a police officer was sitting in a police car approximately 15 feet from the entrance to the Plaintiff's parking lot.

[28] It seems perverse to conclude that the burden should shift to the police to make certain that trade union members peacefully persuade the public to refrain from doing business with a struck employer, when the only right given to striking employees in the first instance is to peacefully persuade through acts that are not criminal or tortious.

[29] In rejecting Union counsel's argument, I adopt the reasons of Orsborn, J. in St. John's International Airport Authority, at p. 14, where he said:

"The court is required to uphold the law and acknowledge the legal rights of those who come before it. Simply because there is a legal strike in process does not mean that it is appropriate for the court to say - in effect - 'it's okay to block a public highway until the police get there' - or to say to the Airport Authority - 'put up with periodically not being able to use your property for its lawful and intended purpose'. Or to say to the public 'until the police can clear the road, put up with not being able to exercise your right to drive unobstructed along a public road to get to the airport'. That would be tantamount to the court's condonation of conduct which is criminal and tortious."

[30] From my perspective, the considerations raised by the counsel for the Union ought to be canvassed on an application by the employer seeking to limit the number of picketers at a particular entrance or exit of the employer's premises. In that case there is a delicate balance to be struck between the right of the striking union members as a group to be expressive and to "signal" supporters and members of the public, and the avoidance of a nuisance at the struck employer's premises that causes undue delay and inconvenience as a result of the presence of a large number of picketers in an effort to put pressure on the employer.

[31] In this case, the existing injunction merely restrains the employees from obstructing or hindering persons from lawful entry to and exit from the Plaintiff's premises and to ensure that they do not do anything other than peacefully persuade. There is no order being sought to limit the number of picketers and this application does not seek to ban picketing entirely based on the actions to date of the striking workers. A request for these types of injunctions was rejected by Orsborn, J. of this Court on November 23rd.

[32] In this context, I am not satisfied that the union had made out a case for vacating the order of October 26, 2007. Notwithstanding the passage of time without additional complaints, there is still the reality that some of the striking picketers have already engaged in unlawful activity which in my view justifies the continuance of the interim injunction which will ensure that the Royal Newfoundland Constabulary will continue to feel authorized to render assistance if needed. More importantly, it will also indicate that the relative calm which currently appears to exist should continue.

SUMMARY AND DISPOSITION

[33] For the reasons given, I am ordering that the interim injunction of October 26, 2007 be continued on an interlocutory basis until the trial or such other earlier disposition of this order or until the strike at the Plaintiff's business ceases.

[34] Costs of this application will be costs in the cause.

_____________________________

Justice

REFERENCE-

https://www.canlii.org/en/nl/nlsctd/doc/2007/2007nltd212/2007nltd212.html?searchUrlHash=AAAAAQAJcGlja2V0aW5nAAAAAQATMjAwMiBTQ0MgOCAoQ2FuTElJKQAAAAEADS8yMDAyY3NjLXNjYzgB&resultIndex=10

Question-

What reasons were given for the decision?