Labour Injunctions & Cease and Desist Orders in Ontario

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[4] 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.
[5] 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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Labour Injunctions & Cease and Desist Orders in Ontario

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