Labour Injunctions & Cease and Desist Orders in Ontario

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[8] 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.
[9] 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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Labour Injunctions & Cease and Desist Orders in Ontario

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