Labour Injunctions & Cease and Desist Orders in Ontario

[3]
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.