Labour Injunctions & Cease and Desist Orders in Ontario

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Labour Injunctions & Cease and Desist Orders in Ontario:
The Role the Courts and Ontario Labour Relations Board in the Regulation of Labour
Disputes
Background
By Ernie A. Schirru and Katherine Ferreira
Koskie Minsky LLP
The regulation of activity that arises in a labour dispute is performed by both the courts
and Ontario Labour Relations Board (the “OLRB” and/or “Board”) in Ontario. Generally
speaking, the courts deal with unlawful activity that arises in the context of otherwise lawful
strikes and/or lockouts through the issuance of injunctions. Conversely, the OLRB generally
deals with unlawful strikes and/or lockouts through the issuance of cease and desist orders.
Under Ontario law, the time periods during which strikes and lockouts can legally occur
are considerably restricted. For example, sections 46 and 79 of the Labour Relations Act, 1995 1
(the “LRA”) state that a strike or lockout cannot lawfully occur during the life of a collective
agreement. Furthermore, even upon the expiry of a collective agreement, certain steps must be
completed before the parties to an employment relationship are in a legal strike or lockout
position. More specifically, notice to bargain must be given, a conciliation officer must have
been appointed and a “no board”report must have been issued (see section 79 of the LRA). Also,
in the case of a strike, section 79(3) of the LRA requires union members to vote in favour of a
strike through a strike ratification vote in most circumstances. Only after these steps have been
completed may the parties lawfully enter into a strike or lockout.
1 Labour Relations Act, 1995, SO 1995, c 1, Sch A.

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A
Injunctions: Lawful Strikes/Lockouts & Unlawful Activity
Where a lawful strike or lockout occurs, any alleged unlawful activity usually arises in
the context of picketing. To date, the seminal case on picketing remains the 2002 decision of the
Supreme Court of Canada (the “SCC”) in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada
Beverages (West) Ltd. 2
(“Pepsi-Cola”). In Pepsi-Cola, the SCC outlined what constitutes
picketing, how picketing relates to the freedom of expression set out in section 2(b) of the
Canadian Charter of Rights and Freedoms 3 (the “Charter”) and the conditions under which
picketing is considered an illegal activity.
The SCC did not provide an exhaustive definition of picketing in Pepsi-Cola. However,
the SCC did explain its understanding of what constitutes picketing as follows:
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. 4
The SCC also clarified that picketing always involves expressive action which engages the
freedom of expression set out in section 2(b) of the Charter. According to the SCC in Pepsi-
Cola, freedom of expression is “particularly critical” in a labour relations context for the
following reasons:
2 R.W.D.S.U., Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 SCR 156 [Pepsi-Cola].
3 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11.
4 Pepsi-Cola, supra note 1 at para 27.

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It is through free expression that employees are able to define and
articulate their common interests and, in the event of a labour
dispute, elicit the support of the general public in the furtherance of
their cause. 5
The SCC’s decision in Pepsi-Cola is also significant because the court outlines and
applies the “wrongful action”model in its assessment of the lawfulness of the picketing activity
at issue in that case. Consistent with the values underlying the Charter, and in particular the
freedom of expression, the SCC’s application of the wrongful action model in Pepsi-Coal treats
picketing as a lawful form of expressive activity that should only be restrained in limited
circumstances, like when it results to tortious or criminal conduct. In approaching picketing in
this way, the SCC stated that the infliction of some economic harm as a result of picketing is
expected and acceptable:
… within limits, unions and employers may legitimately exert
economic pressure on each other to the end of resolving their
dispute. Thus, employees are entitled to withdraw their services,
inflicting economic harm directly on their employer and indirectly
on third parties which do business with their employer. Employers
are similarly entitled to exert economic pressure on their
employees through the use of lockouts and, in most jurisdictions in
Canada, through the hiring of replacement workers. 6
The SCC also held that the infliction of some economic harm on third parties is acceptable “as a
necessary cost of resolving industrial conflict.” 7
The Criminal Code 8 offences that are most likely to arise in the context of picketing are
mischief, common nuisance and threats of violence. These offences are listed in sections 430(1),
180 and 423(1) of the Criminal Code respectively.
5 Ibid. at para 34.
6 Pepsi-Cola, supra note 1 at para 24.
7 Ibid. at para 45.

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In Pepsi-Cola, the SCC enunciated a number of nominate torts that are most likely to
arise in the course of picketing which may justify court intervention:
Picketing which breaches… one of the specific torts like trespass,
nuisance, intimidation, defamation or misrepresentation will be
impermissible, regardless of where it occurs.” 9
In addition, the SCC held that the commission of an economic tort is sufficient to render
picketing unlawful. The SCC specifically referred to three such economic torts that may be
wrongful for the purposes of picketing: (1) inducing breach of contract, (2) conspiracy to injure
and (3) interference with contractual relations. To date, few Ontario cases have considered
whether a union committed an economic tort in the context of picketing. However, where there is
evidence that elements of one or more economic tort is likely to be established at a hearing on
the merits, the court will issue an injunction. 10
(i)
The Courts of Justice Act
In Ontario, challenges to the lawfulness of picketing generally arise in the context of
injunction applications. Section 102 of the Courts of Justice Act 11 provides that the court may
grant an injunction to restrain a person from an act in connection with a labour dispute. Section
102(1) defines a labour dispute as follows:
a dispute or difference concerning terms, tenure or conditions of
employment or concerning the association or representation of
persons in negotiating, fixing, maintaining, changing or seeking to
arrange terms or conditions of employment, regardless of whether
the disputants stand in the proximate relation of employer and
employee
8 Criminal Code, RSC 1985, c C-46.
9 Pepsi-Cola, supra note 1 at para 103.
10 Vale Inco Ltd. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service
Workers, Local 6500, [2010] OJ No 1169 (Ont Sup Ct).
11 Courts of Justice Act, RSO 1990, c C 43.

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Section 102(3) then provides that in order for an injunction to be issued an employer must satisfy
the court that:
reasonable efforts to obtain police assistance, protection and action
to prevent or remove any alleged danger of damage to property,
injury to persons, obstruction of or interference with lawful entry
or exit from the premises in question or breach of the peace have
been unsuccessful.
The court has considered the circumstances under which it will find that reasonable efforts to
obtain police assistance have been unsuccessful within the meaning of section 102(3).
Specifically, the courts considered the issue in Industrial Hardwood Products (1996) Ltd. v.
International Wood & Allied Workers of Canada, Local 2693 12 (“Industrial Hardwood”) and
Cancoil Thermal Corp. v. Abbott 13 (“Cancoil”).
Industrial Hardwood involved an injunction issued under section 102(3) of the Courts of
Justice Act in relation to a legal strike. During the course of the strike, the employer had hired
replacement workers and used vans to transport them into and out of the company premises. For
approximately three months, picketing employees obstructed the vans. However, the picketers
would obey police orders and move when instructed to do so by the police. The employer
obtained an injunction under section 102(3) that prohibited picketers from preventing or
attempting to prevent vehicular access to the company’s premises. The injunction also prohibited
all picketing at the plant except picketing for the purpose of communicating information to those
wishing to receive it. Such communications were limited to five minutes in length under the
terms of the injunction. Finally, the injunction limited the number of picketers to four at each
plant entrance. The union appealed the injunction order, arguing that because the picketers
12 Industrial Hardwood Products (1996) Ltd. v International Wood & Allied Workers of Canada, Local 2693 (2001),
196 DLR (4th) 320, 52 OR (3d) 694 (Ont CA) [Industrial Hardwood].
13 Cancoil Thermal Corp. v Abbott, [2004] OJ No 3016 (Ont Sup Ct) [Cancoil].

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obeyed police orders to allow vehicles to enter the company’s premises when the police were
called the requirement under section 102(3) that efforts to obtain police assistance be
unsuccessful had not been satisfied.
The Ontario Court of Appeal did not accept the union’s argument and dismissed the
appeal. In dismissing the appeal, the Court of Appeal clarified the purpose of section 102(3). It
stated: “The question posed by s. 102(3) is whether in all the circumstances reasonable efforts to
obtain police assistance have failed to result in an acceptable degree of control of the situation.” 14
The Court of Appeal also outlined what an applicant must prove under section 102(3) as follows:
the section places an onus on the applicant to satisfy the court that
the applicant has made reasonable efforts to obtain police
assistance and that those efforts have not resulted in an acceptable
degree of control in light of the factors set out in the section: the
risks of property damage, personal injury or obstruction of lawful
access to the premises. 15
With respect to the established pattern of picketing whereby picketers blocked vehicles from
entering and exiting the premises, the Court of Appeal found that the employer had established
that reasonable efforts to obtain police assistance had failed to result in an acceptable degree of
control as required under section 102(3). Section 102(3) does not contemplate that an employer
should have access to its premises blocked every day until the police arrive nor does it purport to
assess the success of police assistance in preventing obstruction only after the police have arrived
at the premises in question.
However, it should be noted that even though the Court of Appeal upheld the injunction,
in doing so, it commented that injunctions should be used sparingly in a labour relations context.
14 Industrial Hardwood, supra note 12 at para 23.
15 Ibid. at para 22.

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The Court of Appeal specifically noted that the regulation of picketing during a labour dispute
must be done with care, balance and sophistication. To this end, the Court of Appeal went on to
say:
Strikes and the picket lines that go with them are evolving human
dramas where risks of property damage, personal injury or
obstruction of lawful entry are best controlled by flexible and
even-handed policing. Only where this fails should the court, with
its blunt instrument of the injunction, be resorted to. 16
It is worthy of noting that although the Court of Appeal in Industrial Hardwood upheld the
injunction issued by the lower court, the Court of Appeal did modify one aspect of the injunction
- the restriction on the number of picketers was removed. The Court of Appeal removed the
restriction because it found that the number of picketers is an expression of solidarity and
consequently, an important component of the expressive aspect of picketing. Removing the
limitation on the number of picketers reflected the court’s view that where injunctions are issued
“they ought generally to go no further than necessary to prevent a recurrence of the demonstrated
harm.” 17 Similarly, Cancoil involved a lawful strike in which employees picketed the entrance to
the company’s premises. The picketers detained each person who attempted to cross the picket
line for at least fifteen minutes and if a vehicle had several occupants the fifteen minute delay
was multiplied by the number of occupants. The employer responded by imposing a staggered
entry schedule but this caused significant inconvenience to some of its employees. The employer
also contacted the police but was informed that the police would not intervene in a labour dispute
unless there was a risk to public safety or the commission of a criminal offence. The employer
16 Industrial Hardwood, supra note 12 at para 16.
17 Ibid. at para 38.

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sought an injunction to restrain the picketing. At issue was whether the police’s refusal to
intervene in a labour dispute satisfied the requirement under section 102(3) that reasonable
efforts to obtain police assistance to prevent the obstruction of or interference with the lawful
entry and exit from premises have been unsuccessful.
The Ontario Superior Court of Justice found that the police’s refusal to intervene could
satisfy the requirement under section 102(3). The court held:
The unwillingness of the police to become involved must not be
allowed to preclude the Courts intervention in appropriate cases
where, in the Court’s view, tortious or criminal activity is
occurring. As Justice Goudge noted in Industrial Hardwood
Product (1996) Ltd., supra, that in cases involving obstruction of
lawful entry or exit (not property damage or personal injury) the
relevant considerations include the degree of obstruction, its
duration on each occasion and how many days it has gone on… In
my view, the test in section 102 would be met having regard to the
nonintervention policy of the Kingston police, but only if the
employer can succeed in establishing a sufficiently serious ongoing
obstruction in the manner contemplated by the Court of Appeal. 18
Thus, the court found that the police’s refusal to intervene in a labour dispute was sufficient to
satisfy the requirement provided under section 102(3). However, despite this finding the court
ultimately refused to grant the injunction. In refusing to grant the injunction, the court
emphasized the fact that the employer had declined to negotiate a picket line protocol with the
union despite the union’s ongoing and good faith invitation to do so. The court felt that to grant
an injunction under such circumstances would be inconsistent with the restraint that courts
should exercise when intervening with labour disputes.
18 Cancoil, supra note 13 at paras 17-18.

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Therefore, while section 102(3) of the Courts of Justice Act provides that the courts may
issue injunctions in relation to labour disputes, the judicial reasoning in Industrial Hardwood and
Cancoil indicates that the courts will likely exercise restraint in ordering injunctions.
Furthermore, as indicated in Industrial Hardwood, where injunctions are ordered, they will likely
not go farther than is necessary to address the harm at issue.
(ii)
The RJR-MacDonald Test
In addition to the criteria provided for in section 102(3) of the Courts of Justice Act, the
test from RJR-MacDonald Inc. v. Canada (Attorney General) 19 (“RJR-MacDonald”) must be
satisfied in order for an injunction to be issued in a labour dispute. RJR-MacDonald requires that
the party seeking an injunction establish the following:
(1) there is a serious question to be tried,
(2) the plaintiff will suffer irreparable harm which cannot be adequately compensated
by damages, and
(3) that the balance of convenience favours granting the injunction.
Since the Pepsi-Cola decision, Ontario courts have generally found that the three
elements of the RJR MacDonald test are satisfied in a dispute relating to picketing activity when
it appears that there is sufficient evidence upon which tortious or criminal liability may be found.
For this reason, there is often little dispute over whether the picketing activities being
complained of raise a serious question to be tried under the first branch of the RJR-MacDonald
test. With respect to the second branch of the test, courts have consistently found that irreparable
19 RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311.

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harm will readily be established when the evidence demonstrates that picketers are likely
engaging in deliberate tortious or criminal actions for which damages are an inadequate remedy.
Finally, with respect to the third branch, courts have consistently found that the balance of
convenience favours the granting of an injunction when the picketing at issue goes beyond the
communication of views. Southern Sanitation Inc. (c.o.b. Wasteco) v. Fiore 20
(“Southern
Sanitation”) and Aramark Canada Ltd. v. Keating 21 are two such Ontario Superior Court cases
that reflect the courts’approach to and application of the RJR-MacDonald test in the context of a
labour dispute. These cases reflect the fact that the issuance of an injunction will turn on whether
the employer has established the existence of sufficient evidence that would support a finding
that the union has engaged in tortious or criminal conduct in the course of picketing if the matter
were to proceed to trial.
A review of Ontario jurisprudence following the Pepsi-Cola decision indicates that
employers most commonly seek an injunction to prohibit picketing activity where it has impeded
the ability of workers, customers, suppliers and the public to enter or exit an employer’s
premises. Consistent with the Pepsi-Cola decision, courts have generally found that a union’s
picketing activities are lawful provided that their primary purpose is to communicate information
to the public. Courts have also emphasized that any delays to individuals entering or exiting the
employer’s premises as a result of picketing related communications should be brief and not
exceed the amount of time reasonably necessary for the picketers to convey their message. This
20 Southern Sanitation Inc. (c.o.b. Wasteco) v Fiore, [2009] OJ No 2936 (Ont Sup Ct) [Southern Sanitation].
21 Aramark Canada Ltd. v Keating, [2002] OJ No 3505 (Ont Sup Ct).

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approach is evident in the courts’reasoning in Southern Sanitation and Brookfield Properties
Ltd. v Hoath 22 (“Brookfield Properties Ltd.”).
Southern Sanitation involved a lawful strike by CUPE Local 416 against the City of
Toronto. As a result of the strike, a third party company called Wasteco was providing garbage
collection services that otherwise would have been handled by the union. Given its involvement,
Wasteco collection sites were picketed by CUPE Local 416 members. The picketing involved
blockades and threats. The City of Toronto obtained an injunction that allowed union members
to picket but limited any delays resulting from picketing to five minutes. The injunction also
specified that picketing was to be conducted for “informational purposes only.” 23
In Brookfield Properties Ltd., the union was picketing a large office complex in
downtown Toronto owned by the employer, Brookfield. The picketing was largely centered on
the entrances and exits to the office complex’s parking garage as well as its receiving dock. At
the outset of the strike the union and employer had agreed upon a picketing protocol. However,
as the dispute progressed the union began to depart from the protocol. The employer successfully
obtained an injunction that limited the picketers’ability to delay entrance to and exit from the
parking garage except in accordance with the previously agreed upon picketing protocol. The
injunction also contained a prohibition against “interfering with, blocking, obstructing or
delaying, in any way whatsoever”the entry of vehicles into the parking garage between 6:30
a.m. and 9 a.m. any day of the week and exit from the receiving dock at any time. 24 In granting
the injunction, the court commented on the fact that delays associated with picketing should be
for informational purposes. It stated:
22 Brookfield Properties Ltd. v Hoath, [2010] OJ No 4822 (Ont Sup Ct) [Brookfield Properties Ltd.].
23 Southern Sanitation, supra note 20 at para 68.
24 Brookfield Properties Ltd., supra note 22 at para 64.

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the case law distinguishes two very different situations. Picketing
which constitutes obstruction of the lawful entry to and exit from
premises is unlawful, constituting a nuisance. That the blockading
or obstruction occurs during a labour dispute does not transform an
unlawful nuisance into a lawful expression of a message. However,
picketing which attempts to communicate information to those
attempting to enter into or leave premises may result in temporary
delays where the targets of the communicated message stop and
engage the picketers in discussion. Delays incidental to such
communication which last only for the amount of time reasonably
required to convey the message may fall into the categories of
permissible impedance, rather than unlawful obstruction or
blockage. 25
This comment indicates the importance that the courts place on the fact that the predominant
purpose of any delays associated with picketing should be the communication of information and
not to exert economic pressure. As a result of this emphasis, the courts are likely to find that
picketers who primarily attempt to block entry to an employer’s property and place secondary
focus on communicating information are acting unlawfully. For instance, in a recent Ontario
Superior Court decision, Alumicor Ltd. v. U.S.W. 26 , the court granted an injunction which
prohibited the picketing union from delaying access to or egress from the employer’s premises as
a result of picketing. The court prohibited any delays because it found that the picketers were
merely trying to blockade the employer’s premises as opposed to engaging in communication
with those trying to exit and enter the premises. The court made this finding even though the
picketers wore placards and had posted information signs in the picketing area. According to the
court, these placards and signs were insufficient to support a finding that the picketing was for
informational purposes. The court emphasized the fact that the picketers who impeded access to
the employer’s property did not verbally communicate any views in relation to the union’s
interests in the labour dispute. Rather, the communications to individuals or drivers entering or
25 Brookfield Properties Ltd., supra note 22 at para 36.
26 Alumicor Ltd. v U.S.W., [2011] OJ No 1433 (Ont Sup Ct).

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leaving the employer’s facility were limited to statements to the effect that “absolutely nothing is
going to get in or out of this place.”
B
Cease and Desist Orders: Unlawful Strikes/Lockouts
Unlike the courts, the OLRB does not have a general jurisdiction over lawful strikes
and/or lockouts and therefore does not generally address the restrictions (if any) that may be
placed on picket line activity in the event of a lawful strike. The OLRB does not issue
injunctions. Rather, as outlined by the OLRB in Toronto Transit Commission, 27
the Board
addresses “questions of unlawful strikes or unlawful picketing, where the individuals on strike or
who are likely to strike are not legally entitled to do so.” 28
Section 1(1) of the LRA defines a strike as follows:
‘strike’includes a cessation of work, a refusal to work or to
continue to work by employees in combination or in concert or in
accordance with a common understanding, or a slow-down or other
concerted activity on the part of employees designed to restrict or
limit output
In addition, the Board recently outlined its understanding of strikes in Benteler Automotive
Canada Corporation. 29 The Board described strikes as follows:
Strikes are permitted only where there is no collective agreement
in force, and the bargaining parties have completed the compulsory
conciliation process contemplated by the statute. ‘Strikes’at any
other time are unlawful; moreover, the definition of ‘strike’is quite
elastic, and encompasses any work refusal by a group of
27 Toronto Transit Commission, [1996] OLRB Rep September/October 889.
28 Ibid. at para 14.
29 Benteler Automotive Canada Corporation, [2011] CanLII 17940 (ON LRB).

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employees ‘in concert, in combination, or in accordance with a
common understanding’. Those words have been held to
encompass a broad range of collective activity including:
slowdowns, ‘hot cargo arrangements’, ‘sympathy strikes’and a
concerted refusal to cross picket lines as an expression of solidarity
with the actions of another trade union. The definition is
intentionally cast in very broad terms, and has been so construed
by both the Boards and the Courts. 30
Thus, a strike is a work refusal by a group of employees acting in concert, in combination or in
accordance with a common understanding. This definition has been interpreted broadly and,
consequently, may be applicable in a wide variety of circumstances. As already discussed,
generally speaking, strikes are unlawful unless the applicable collective agreement is no longer
in force and the parties to the employment relationship have completed the conciliation process
mandated by section 79 of the LRA.
Where unlawful strike activity is occurring, the OLRB has the jurisdiction to exercise its
discretion to issue declarations, directions and orders under sections 100 and 101 of the LRA.
The remedy commonly sought from the Board in section 100 and/or 101 cases is the issuance of
a cease and desist order. The Board in Monarch Fine Foods Company Limited 31 affirmed that
employers could seek a cease and desist order in the event of an unlawful strike. Cease and desist
orders prohibit a person or persons from continuing a particular course of conduct – like an
unlawful strike. Any cease and desist order issued by the Board may be filed in the Superior
Court of Justice. Upon doing so, the order becomes enforceable as an order of that court pursuant
to section 102 of the LRA.
30 Benteler Automotive Canada Corporation, supra note 29 at para 5.
31 Monarch Fine Foods Company Limited, [1986] OLRB Rep May 661.

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The declarations, directions and orders available under sections 100 and 101 of the LRA
are discretionary in nature. In Bechtel Canada Ltd. 32 the OLRB stated that any declarations,
directions and/or orders made under sections 100 or 101 of the LRA are not available as of right
and will usually not be issued in circumstances where the work stoppage at issue ends before the
Board hearing. The OLRB in Bechtel Canada Ltd. did, however, outline three exceptions to this
general approach, as follows:
The Board has consistently stated, however, that it will depart from
this general practice of refusing to grant either a declaration or a
direction in the face of the existence of any one or more of the
following three circumstances: firstly, where the evidence
establishes a past practice of unlawful strike activity, secondly,
where the evidence indicates that the unlawful activity is likely to
recur or thirdly, where the unlawful strike upon which the
application is based has implications which extend beyond the
immediate parties. 33
While Bechtel Canada Ltd. is an older decision, the approach set out in that decision was
affirmed by the OLRB relatively recently in the Board’s 2008 decision in Enwin Utilities Ltd. 34
Similar to the courts’approach in issuing injunctions, the OLRB jurisprudence shows
that the Board attempts to exercise its discretion in section 100 or 101 cases in such a way so as
to ensure any declarations, directions and/or orders are construed as narrowly as possible since
the matters at issue typically engage the Charter right of freedom of expression and possibly
freedom of association as well. This point was emphasized by the OLRB in Toronto Transit
Commission, when the Board stated:
… significant Charter Rights are at issue in the circumstances.
Even though the Board is satisfied that there must be some limits
32 Bechtel Canada Ltd., [1977] OLRB Rep May 269.
33 Bechtel Canada Ltd., supra note 32 at para 20.
34 Enwin Utilities Ltd., [2008] CanLII 20885 (ON LRB).

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placed upon the rights of people to express themselves and to
assemble, in order to ensure that no unlawful strike occurs, any
limitation should be as narrow as possible, reflecting the
significant and critical rights at issue. 35
Consequently, the Board in Toronto Transit Commission issued a cease and desist order that only
prohibited the picketing of TTC sites prior to 6:30 a.m during the 1996 “Days of Protest.”There
were no restrictions on picketing after 6:30 a.m. as the Board reasoned that TTC collectors
would have been able to enter the subway stations by that time. The OLRB held that a
prohibition on picketing prior to 6:30 a.m. was sufficient to ensure that TTC collectors were not
in a position whereby they would have to cross a picket line in order to report to work, possibly
leading to an unlawful strike if they refused to cross.
The Board’s prohibition on picketing in order to prevent TTC collectors from having to
cross a picket line in order to report to work reflects the situation at issue in most of the Board’s
decisions relating to requests for cease and desist orders. Cease and desist orders are often
requested in circumstances where a union that is legally on strike engages in secondary picketing
at third party sites where other unionized workers are employed. Such picketing often results in
the unionized employees refusing to cross the picket line, thereby leading to an unlawful strike.
This type of activity is often said to engage section 83(1) of the LRA, which provides:
No person shall do any act if the person knows or ought to know
that, as a probable and reasonable consequence of the act, another
person or persons will engage in an unlawful strike or an unlawful
lock-out.
Unionized employees have been found to engage in unlawful strike activity when they
refuse to cross a picket line in order to enter their worksite. This finding was expressed by the
35 Toronto Transit Commission, supra note 27 at para 19.

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SCC in a Canada Labour Code case involving Local 273, International Longshoremen’s
Association et al. v. Maritime Employers’Association et al 36 (“International Longshoremen’s
Association”) and has since been adopted by labour boards across the country, including the
OLRB. In the International Longshoremen’s Association case, the National Harbours Board
Police was engaging in a legal strike in Saint John’s. As part of the strike, the police established
picket lines at the entrance to the Port of Saint John’s facilities. Members of three union locals
refused to cross the picket lines and as a result shipping operations in the Port of Saint John’s
were closed down. The SCC held that the local members’refusal to cross the picket line
constituted a strike. The court found that the “common understanding”required as part of the
definition of a strike could be inferred where unionized employees respect another union’s picket
line. This inference was based on the idea that unionized workers respect picket lines as a sign of
solidarity.
The OLRB relied on the reasoning in the International Longshoremen’s Association case
relatively recently in a request for a cease and desist order sought in Unilux Boiler Corp. and
Unilux V.F.C. Corp. 37 (“Unilux Boiler Corp.”). In doing so, the Board stated:
the Board does not usually have much difficulty in finding that
picketers, who picket a secondary work site with the result that
workers at the picketed site do not work, are breaching the Act
[LRA]. The Board’s willingness to do so arises out of the wellknown
principle that trade unions respect other unions’picket
lines. The Board finds the ‘in concert’ aspect of the strike
definition in this trade union principle. 38
36 Local 273, International Longshoremen’s Association et al. v. Maritime Employers’Association et al., [1979] 1
SCR 120 [International Longshoremen’s Association].
37 Unilux Boiler Corp. and Unilux V.F.C. Corp., [2005] CanLII 20765 (ON LRB) [Unilux Boiler Corp.].
38 Ibid. at para 12.

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Thus, where a union that is on strike engages in picketing activity at a workplace where other
unionized workers are employed, the Board assumes that the unionized workers will refuse to
cross the picket line, thereby leading to unlawful strike activity. The inducement of a strike in
this manner is contrary to section 83(1) of the LRA which, in turn, constitutes grounds for the
Board to exercise its discretion to issue a cease and desist order under section 100.
It is important to note, however, that the Board in Unilux Boiler Corp. clarified that the
opposite assumption is true when the union that is on strike engages in picketing activity at a
workplace that has non-unionized work force. According to the OLRB, non-unionized workers
cannot be expected to respect picket lines or act in concert. Rather “such workers are expected to
cross the picket line and attend at work or make individual decisions not to do so.” 39 Given this
expectation, the OLRB has “found that employees who made an individual decision not to cross
the picket line either because they are afraid or out of respect for the picket line, are not engaged
in a strike.” 40 The fact that the decision not to cross is an individual one means that the “in
concert” or “common understanding” requirement of the strike definition is not satisfied.
Consequently, there is no unlawful strike activity and the Board does not have jurisdiction to
issue a cease and desist order. An employer would have to attempt to stop the picketing activity
by applying for an injunction under the Courts of Justice Act.
Conclusion
Unlawful activity in the course of otherwise lawful strikes and/or lockouts is generally
addressed through applications for injunctions made to the Ontario Superior Court under section
39 Ibid. at para 14.
40 Unilux Boiler Corp, supra note 37 at para 17.

[19]
102(3) of the Courts of Justice Act. The unlawful activity that is the focus of injunctions often
involves picketing. As a result of the SCC’s decision in Pepsi-Cola, picketing has generally been
found to constitute expressive activity that engages the freedom of expression provided for in
section 2(b) of the Charter. For this reason, the courts have generally approached these types of
cases with a view that restrictions on picketing should be minimal in nature, with the scope of
any injunctions issued not going any further than is necessary to address the harm at issue.
Conversely, the OLRB’s jurisdiction arises in the context of unlawful strikes and/or
lockouts. Sections 100 and 101 of the LRA afford the Board the discretion to issue declarations,
directions and orders in respect of unlawful strikes and/or lockouts, including cease and desist
orders. Similar to the approach employed by the courts, the Board has generally approached
these types of cases with a view that restrictions on picketing should be minimal in nature, with
the scope of any cease and desist orders not going any further than is necessary to address the
harm at issue.