Canada: Enjoin the Picketers?

In 2002, the Supreme Court of Canada ruled that picketing is a form of expression protected by the Canadian Charter of Rights and Freedoms. In so ruling, the Supreme Court of Canada made it clear that the lawfulness of picketing will be determined by the conduct of the picketers, not their location. Prior to this ruling, it was considered illegal per se for picketers to exert economic pressure on third parties, such as customers and suppliers, unless those third parties were "allies" of the employer. The distinction between primary picketing and "secondary picketing", picketing at a location other than the premises of the employer whose employees are on strike, has now been abolished. Secondary picketing is permissible unless it can be shown to be wrongful or unjustified.

For companies that are third parties to labour disputes, it may be surprising that picketing of their premises is considered permissible. However, the laws of intimidation, trespass, nuisance and inducing breach of contract continue to apply to picketers, and picketers may not unduly impede access to or exit from the picketed premises. To minimize the potential for adverse impact upon its business, a company threatened with picketing action should focus on preparing an appropriate contingency plan and on gathering evidence of unlawful conduct. With evidence of unlawful conduct, including threats and undue prevention of access to the company’s premises, an injunction may still be available.

This bulletin provides basic information a company should consider in the event that picketing threatens to disrupt its business. It should be noted that each situation is unique, and legal advice should be obtained in the event that a company receives notice its business may be disrupted as a result of picketing. Specific questions should be directed to a member of McMillan Binch Mendelsohn LLP’s Litigation or Labour Groups.

Injunctive relief may be available if the picketing involves conduct that is tortious or criminal. A company does not have an automatic right to enjoin picketing activities, even where there is considerable negative economic impact to their business. Therefore, how successful the company is in gathering evidence of the picketers’ criminal or tortious conduct will be critical to whether an injunction is granted.

To obtain an injunction, the company should be able to show (i) a strong prima facie case that the picketers have been participating in unlawful behaviour; (ii) damages are an inadequate remedy; and (iii) the balance of convenience favours granting an injunction. When injunctive relief is being sought from picketing, the first element, that of a prima facie case, is generally determinative. As noted above, the distinction between primary and secondary picketing has been effectively abolished. Consequently, proceedings for injunctions with respect to these two forms of picketing are held to the same test.

Since picketing is not itself unlawful, a company must establish a strong prima facie case that the picketers have engaged in criminal or tortious conduct in order to seek injunctive relief. When relying on allegations of tortious behaviour, the company must ensure that its allegations are specific and, if proven, would meet the relevant test for the alleged criminal offence or tort.

Lawful picketing may include picketing for the purpose of communicating information, obtaining information, or peacefully persuading employees to support the picketers’ position. It is not unlawful for large numbers of picketers to be involved.

Unlawful picketing usually includes tortious behaviour (e.g. intimidation, inducing breach of contract, defamation) or criminal behaviour. Specifically, unlawful picketing may include:

• trespass on private property (unless the property is one in which the public is normally granted access);

• conduct that is disorderly (not peaceful);

• the use of force or threats;

• damage to property;

• oral or written communication which is slanderous or libellous;

• unduly hindering access or egress from the premises;

• any type of picketing which prevents patrons, suppliers, or employees from entering the premises; or

• threatening patrons, suppliers, or employees with injury or damage to personal property.

As noted above, injunctive relief is generally only available if the conduct of the picketers involves tortious or criminal activity. Canada’s Supreme Court has stated that picketing is not permissible if it breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation. Companies may also receive basic protections through the tort of interference with contractual relations. The more commonly relied on torts are described in more detail below.

Picketing activities that amount to the tort of nuisance are unlawful. Nuisance consists of a substantial and unreasonable interference with an occupier’s interest in the beneficial use of his land. In order for the tort of private nuisance to be made out, the nuisance must involve private property. For the tort of public nuisance to be made out, there must be some damage beyond the general damage of inconvenience.

The use of injunctive relief to restrain defamation is only permissible in the rarest and clearest of cases, where the defamation is so manifestly defamatory that any verdict to the contrary would be considered perverse. There must also be evidence, or grounds upon which to infer, an intention that the defamation would be repeated or published.

The elements of the tort of interference with contractual relations include: (i) the existence of a valid and enforceable contract; (ii) awareness by the defendants of the existence of a contract; (iii) breach of the contract procured by the defendants; (iv) wrongful interference; and (v) damages. This tort can only be established in the context of picketing if the interference is caused by an independently actionable wrongful or unlawful act.

Injunctions have been granted to prevent picketing in the following situations:

• where the conduct of picketers in denying entry or exit to the picketed premises constituted the tort of nuisance and criminal mischief (the court found that undue delay of to persons seeking to enter or exit premises is unjustified and that picketers do not have an unrestricted right to a blockade of the picketed premises);

• where the picketing involved the use of signs alleging that the picketed group committed criminal offences and were disseminators of communicable diseases (only the unlawful activity was restrained and other picketing activities were permitted);

• where the picketers impeded access to the courts; and

• situations where the safety of picketers or others is threatened.

In cases where tortious or criminal actions are shown to have occurred, irreparable harm is readily established and compensation by damages is not realistically an available option. Irreparable harm includes harm to the public, as well as harm to the picketers themselves. Excessive economic harm can be irreparable harm, but the Supreme Court of Canada has held that even evidence of considerable economic harm to third parties will not justify restraint on otherwise lawful picketing activities.

Where there is evidence that the picketing conduct is unlawful, the company does not have to meet this part of the test. However, in order to minimize impact and to further balance the convenience, injunctive relief granted may be limited in nature. The court will not interfere with lawful, non-tortious and non-criminal picketing. Rather, it is only the unlawful conduct that is in need of prohibition in order to impact the rights of the picketers as minimally as possible. The wide, injunctive relief requested by a moving party may be denied in favour of an order restraining only the wrongful actions of the picketers.

In advance of seeking an injunction, evidence should be gathered from as many first-hand sources as possible. Whether or not injunctive relief will be granted is critically dependent upon whether the party seeking the relief has put forward sufficient evidence that the picketing is wrongful and unjustified.

Prior to initiating proceedings to seek injunctive relief, the court must be satisfied that reasonable efforts were made by the moving party 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". Supporting materials, in the form of affidavits confined to statements of fact within the knowledge of the deponent, will be required for such a motion to be made. While it is not absolutely clear that this requirement applies to secondary picketing activities, out of an abundance of caution, the police should be contacted in all circumstances.

Where the picketing activities occur at premises of a company with no connection to a labour dispute, injunctive relief can be sought through a motion under section 101 of the Courts of Justice Act. Where there is any suggestion that a labour dispute may be underlying the picketing activities, a telephone call to the appropriate labour representatives is required prior to seeking injunctive relief.

Where the secondary picketing arises in connection with a labour dispute, a company must consider whether or not the additional requirements found in section 102 of the Courts of Justice Act, R.S.O. 1990, c. C.43, are applicable.

Section 102 applies to picketing "in connection with a labour dispute". The scope of what will be considered to be "in connection with a labour dispute" is not yet settled. At least one Ontario court has suggested that neutral parties should not have to meet the additional requirements in section 102 when seeking injunctive relief; however, the court held that where there is a close inter-relationship with the picketed third party company and the struck employer, the picketing is "in connection with a labour dispute". It should be noted that the trend in Canadian courts has been to favour the rights of striking employees during labour disputes. Caution dictates that, where circumstances permit, companies subjected to secondary picketing comply with the additional requirements of section 102.

In addition to the meeting the general requirements described above for obtaining injunctive relief, a company seeking to restrain conduct "in connection with a labour dispute" has additional obligations.

It should be noted that under section 102, an interim injunction will only be granted for a maximum of four days.

(a) The general rule is that least 2 days notice is required before a motion for an injunction. Notice to a union can be effected by personal service on an officer or agent of the union. If the picketing employees are not members of a union, notice can be given by posting the notice in a conspicuous place at the place where the picketing occurs, where it can be read by any persons potentially affected.

(b) To seek an injunction without notice, the following must be established through oral evidence of relevant material facts:

Where an injunction is sought in connection with a labour dispute, affidavit evidence submitted by the company must be confined to the personal knowledge or opinion of the deponent, and not based on his information and belief. Evidence from security guards, management, and police should be provided. In addition, an injunction is more likely to be granted if the company can link a relatively large proportion of the picketers to the unlawful or inappropriate conduct. If the conduct can be viewed as simply bad behaviour on the part of a few individuals, an injunction restraining the picketing is unlikely to be granted.

© Copyright 2005 McMillan Binch Mendelsohn LLP