Labour Injunctions & Cease and Desist Orders in Ontario

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[18] 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.
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Labour Injunctions & Cease and Desist Orders in Ontario

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