Labour Injunctions & Cease and Desist Orders in Ontario

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[16] 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.
[17] 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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Labour Injunctions & Cease and Desist Orders in Ontario

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