SASCO DEVELOPMENTS LTD. o/a HERITAGE INN – MOOSE JAW, v. 610539 SASKATCHEWAN LTD. o/a HERITAGE INN –, 2023 SKKB 242

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 242 Date: 2023 11 10 Docket: KBG-SA-01092-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: SASCO DEVELOPMENTS LTD. o/a HERITAGE INN – MOOSE JAW, and 610539 SASKATCHEWAN LTD. o/a HERITAGE INN –SASKATOON Plaintiffs - and - UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400, and LUCIA FLACK FIGUEIREDO Defendants CORRECTED JUDGMENT: The text of the original judgment has been changed perthe corrigendum released December 11, 2023. (A copy of the corrigendum is appendedto this corrected judgment.) Counsel: Steven J.

Seiferling for the plaintiffs Heath P. Smith for the defendants ___________________________________________________________________________ JUDGMENT GERECKE J. November 10, 2023 ___________________________________________________________________________ A. INTRODUCTION [1] In an application for an interlocutory injunction to restrain picketing, how egregious must the picketers’conduct be before a Court should intervene to order an interlocutory injunction?

How much evidence will suffice to prompt intervention?Does leafleting – distributing informational leaflets separate from a picket line – on an employer’s property constitute trespass, or is itpermissible under the Canadian Charter of Rights and Freedoms? [2] Those questions arise in connection with this application to enjoin picketing and informational activities afterthe union was locked out by the employer. [3] The plaintiffs [employers] operate hotels [hotels] in Saskatoon and Moose Jaw, both under the name HeritageInn.

The first-named defendant is the union [union] that has been certified in these mature bargaining relationships. Ms. Figueiredo is thepresident of the union local. [4] The parties have been without a contract since 2019. Collective bargaining was interrupted by the pandemic.Negotiations resumed at about the start of 2023 and recently broke down. On September 5, 2023, the employers served notice that theywould lock out the union on September 7, 2023, at 8:30 a.m. Until the lockout began, the parties were governed by the existingcollective agreement that expired in 2019 [CBA].

The parties agree that at the point the lockout began, the CBA ceased to apply. Alsoon September 5, 2023, the employers say they offered the employees contracts to keep working through the lockout. [5] The employer locked out the union at 8:30 a.m. on September 7, 2023. The union started picketing the hotelsites the same morning. The employers allege wrongdoing on the part of picketers, including that some picketing occurred on hotelproperty. The union acknowledges that it is not permitted to picket on hotel property. [6] Union members also started leafleting on hotel property on September 7.

Leafleting was the focus inU.F.C.W., Local 1518 v KMart Canada Ltd., (SCC), [1999] 2 SCR 1083 [KMart], which described the activity as thepeaceful distribution of leaflets setting out the position of employees in a labour dispute. [7] The employers say the union’s leafleting amounted to trespass and inducing breach of contract.

[8] The employers seek an injunction against the union concerning both picketing and leafleting. The draft ordersubmitted by the employers seeks the following relief: 1.

A temporary injunction … restraining the Defendants, or any representative of the Defendants, or anyone involved in picketingactivity on behalf of the Defendants, from entering onto the private property of the Plaintiffs, including parking in the parking lot ateither location, blocking the entrance to the parking lot using vehicles or other means of blocking access, refusing access to the propertyof the Plaintiffs for any person, including delivery drivers and personally entering onto the property of the Plaintiffs, for any reason,without the prior written consent of the Plaintiffs. [9] For the reasons that follow, I find that the employers have failed to establish a basis for an ongoing injunctionconcerning the union’s conduct on the picket line. [10] The leafleting question was reviewed in Moose Jaw Co-operative Association Ltd. v United Food andCommercial Workers, Local 1400, 2019 SKQB 321 [Moose Jaw Co-op], in which Richmond J. determined a judicial review application.Under review was the decision of the Labour Relations Board [Board] in United Food and Commercial Workers, Local 1400 v MooseJaw Co-operative Association, (Sask LRB) [Board Decision].

After receiving submissions on whether judicialcomity applies here, I have determined that it does not. [11] Nonetheless, I conclude that this is not an appropriate circumstance to grant an injunction concerning theunion’s leafleting activities. B. PROCEDURAL MATTERS [12] The employers initially sought a without notice application. As required by s. 9-7(2) of The King’s Bench Act,SS 2023, c 28, they served it on the union, and the union was present on a conference call before Crooks J. It is unclear whether theunion had an opportunity to file materials.

Crooks J. ordered an interim injunction pending determination of the with notice application.That application was heard by me. At the conclusion of argument, I continued the injunction ordered by Crooks J. pending further orderby me. This is my decision on the injunction application. [13] Crooks J. set certain filing deadlines for materials. Both parties filed affidavits after the deadline to advise theCourt of what they considered to be breaking developments. Each party agreed to the other’s late materials being admitted as long as allwere admitted.

On that basis, I determined that the late affidavits would be accepted by the Court. [14] During argument, it became apparent that the evidence on the hotels’ property lines was scant andunsatisfactory. With his agreement, I directed Mr. Seiferling to file surveyor’s certificates for the two properties. On October 17, 2023,he filed some documents that appear to be site plans sourced from the City of Saskatoon and from an unknown source concerning theMoose Jaw property. [15] I raised with counsel during argument that judicial comity could be potentially important here concerning theleafleting issue.

It was not addressed in either party’s brief, so I invited both to file written submissions, which they did. C. ISSUES [16] In my view the issues to be decided are essentially as follows. Along the way, the questions asked in the firstparagraph above will be addressed. 1. What is the test for injunctive relief? 2. What must be established on evidence regarding torts alleged by the employers? 3. What relevant principles apply from the labour dispute context influence? 4. Have the employers established a serious issue to be tried regarding picketing? 5.

Have the employers established a serious issue to be tried regarding leafleting? 6. Have the employers satisfied the remaining arms of the test for injunctive relief in respect of leafleting? D. ANALYSIS 1. What is the test for injunctive relief? [17] This case must be viewed through a lens of the test for injunctive relief. [18] Relying on Mosaic Potash Esterhazy Limited Partnership v Potash Corporation of Saskatchewan Inc, 2011SKCA 120, 341 DLR (4th) 407 [Mosaic], the employers contend that the “serious question to be tried” threshold governs thisapplication.

The serious issue formulation requires a plaintiff to establish that its claim is not frivolous or vexatious.

The Court should setthe bar low. [19] Mosaic is the leading Saskatchewan case on the tests for injunctive relief, though I harbour doubt about whetherthe Court of Appeal intended in Mosaic to alter the test for enjoining picketing from that set out in Retail, Wholesale and DepartmentStore Union Local 558 v Pepsi-Cola Canada Beverages (West) Ltd. (1998), (SK CA), 167 DLR (4th) 220 (Sask CA)[Pepsi CA]; appeal dismissed at R.W.D.S.U., Local 558 v Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 SCR 156[Pepsi SCC]. Nonetheless, for the following reasons, I will apply the test used widely since Mosaic.

[20] In my view, there are situations, including labour disputes, where the more stringent prima facie case test mightstill appropriately be used. Decisions in this province such as Sherritt Gordon Mines Ltd. v United Association of Journeymen andApprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Locals 179 and 264 (1987), (SK CA), 45 DLR (4th) 22 (Sask CA) [Sherritt], and Potash Corporation of Saskatchewan Mining Ltd. v Todd, (SKCA), [1987] 2 WWR 481 (Sask CA), explained in clear terms why the strong prima facie test should be used for labour disputes.

Casessuch as this rarely go to trial. Instead, the injunction application usually results in what serves as a final order in the matter. [21] That the Legislature understands that such cases rarely go to trial, and has legislated accordingly, is apparentfrom review of s. 9-7(4) of The King’s Bench Act. That provision, which prohibits the filing of affidavit evidence that is not firsthandknowledge of the deponent, applies only in the specific context of injunction applications in labour disputes.

In my view, that provisionexists because an injunction application in a labour dispute is akin to seeking a final order. [22] As well, the competing interests “make it necessary to start with a balanced scale, not one weighted at the outsetin favour of the plaintiff”: Sherritt, para 82. [23] Indeed, at paragraph 48 of Mosaic, the Court of Appeal referenced picketing injunctions as an area where anexception to the serious issue threshold could be appropriate. [24] However, as the union did not oppose use of the “serious issue to be tried” threshold for the first step of the test,that is what I will apply.

The strength of the employers’ case can still be accounted for in later portions of the analysis. Mosaic certainlydoes not stand for the proposition that use of the serious issue threshold results in injunction orders being easier to obtain: Mosaic,para 46. [25] If a serious issue to be tried is established, then the Court considers the respective harms that would be sufferedby the parties. The plaintiff bears the onus of establishing a meaningful risk of harm. Finally, the Court must focus on the overall equitiesand justice arising from the situation involved.

As such, this is a discretionary decision of the Court. 2. What must be established on evidence regarding torts alleged by the employers? [26] This question is significant. An applicant who seeks injunctive relief must do more than throw out allegationsthat seem improper. Even though the “serious issue” threshold is low, it must be met on substantially all of the elements that would needto be proven to obtain relief at a trial: Pepsi CA, page 233. The law of torts underlies the employers’ application here; in particular, theemployers have pleaded torts such as nuisance, trespass and inducing breach of contract.

Whatever tort or other wrongful action theemployer relies on in a picketing case, admissible evidence must be led that establishes the alleged wrongdoing beyond the “seriousissue” threshold. See the discussion of the Court of Appeal in Sherritt, paras 84-110 (particularly paras 84 and 86). Also see the morerecent Court of Appeal decision in Wildman v Kulyk, 2013 SKCA 55, 362 DLR (4th) 578. If the evidence does not clear the threshold onthe required elements where a tort is alleged, relief should not be granted on the basis of that tort having been committed. 3.

What relevant principles apply from the labour dispute context influence? [27] Injunction applications in labour disputes are subject to additional considerations beyond those present in othercontexts. As a result, applications must be considered on a case-by-case basis as to what has actually happened. [28] Not all picketing that inconveniences the employer and its customers or others doing business with the employeris barred. In part, this is because picketing is recognized as a legal and protected form of free expression, protected by s. 2(

b) of theCharter. Picketing has long been recognized as an “essential tool in the economic arsenal of workers in the collective bargainingprocess”: Unifor Canada Local 594 v Consumers’ Co-Operative Refineries Limited, 2021 SKCA 34 at para 55 [Unifor], leave to appealto SCC dismissed, . [29] Labour disputes, including picket lines, often have rough and tumble characteristics. Emotions can get fiery.Often what is litigated falls in the realm of extreme situations. Counsel were unable to point me to a case that might be viewed as a “closecall”.

Instead, the focus was on decisions such as Unifor, where the union entirely blockaded replacement workers and substantiallyslowed vehicle traffic in and out of a refinery, and Pepsi CA, where employees seized control of the company’s warehouse, offices andyard and, at times, resorted to violence. [30] The chambers decision that led to the Unifor appeal is not reported. However, in the process of dismissing theappeal, the Court of Appeal reproduced the following passage from the chambers decision.

I consider it a useful set of principlesapplicable to injunction applications regarding conduct during a labour dispute. See Unifor, para 20: [20] … [27] According to the case law, I conclude that I must recognize the following principles on this particular application for an injunction: 1. That picketing is an important and constitutionally recognized form of expression: B.C.G.E.U. v [British Columbia (AttorneyGeneral), (SCC), [1988] 2 SCR 214], para 24; 2.

The effectiveness of picket lines is dependent on the ability of the union to try to convince the public not to cross the picket line anddo business with the employer: [Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401,2013 SCC 62, [2013] 3 SCR 733], para 36; 3. The purpose of picketing is to shut down the employer’s operation, or at least to make it difficult to maintain the operation: inC.U.P.E. v N.B. Liquor Corporation, (SCC), [1979] 2 SCR 227 at 241; 4. The court may intervene only to keep the peace or to prevent unlawful acts: [Pepsi CA], para 27;

5. Intimidation is not permitted; and 6. Free access to and the right to use one’s property must be protected, while protecting also the right of union members to freedom of expression and association: [ Pepsi SCC ], para 103 and [ A.I. Enterprises Ltd. v Bram Enterprises Ltd. , 2014 SCC 12 , [2014] 1 SCR 177 ], para 34. [ 31 ] A union and its members may not intimidate or make threats in the course of picketing. However, Unifor and other authorities tell us that the Court should not necessarily intervene to prevent all inconvenience to the employer and its customers. Some inconvenience is permitted.

As the Court of Appeal explained in Unifor : [64] A reasonable balance of union members’ rights and the employer’s rights can be considered to involve both the employer having access to its property while, at the same time, allowing for a measure of inconven ience and economic harm to the employer and affiliated third parties while picketers convey their message: Sobeys v UFCW, Local 175 , 2013 ONSC 1207 at para 50 , [ Sobeys ] . [ 32 ] Unifor delved further into the delay question at paragraphs 70 to 98.

The Court of Appeal determined that there should not be recognition of a constitutional right to create delay. Rather, in each case, the Court must make a discretionary determination as to whether delay can be accommodated and what duration would be acceptable.

What is reasonable depends on the circumstances, including ( Unifor , para 95 ): [95] … the nature of the business; its location; the volume and nature of the traffic crossing the picket line; the nature of the inconvenience caused; the number of people affected; the time required for the union to communicate its message; the character and effect of the message; and the presence or absence of intimidation or potential for violence of persons from both sides of the dispute. [ 33 ] As broad principles, if a delay is specified then it should reflect a minimal infringement of the union members’ right to free expression and provide a reasonable time to communicate their message. [ 34 ] Unifor offers a useful example of an exception.

Much of the traffic into the employer’s property consisted of fuel trucks. The evidence indicated that at least 210 trucks entered and exited the property each day. The same fuel truck drivers crossed the picket line repeatedly.

The Court of Appeal agreed with the chambers judge that “requiring repeat crossers of the picket line to listen to the same message outlining the position of the Union a multitude of times without the right to move on” would convert the normal delays into “a mere blockade that had little relationship to a genuine communication of the Union’s position”: Unifor , para 156 . [ 35 ] Unifor reflects an understanding that labour disputes are not “tea parties”: Pepsi SCC , para 90 .

Unions have the right to use picket lines to put economic pressure on employers, as long as the conduct does not rise to the level of a tortious or criminal act: Pepsi SCC, paras 96 and 101-107 . [ 36 ] As I stated above, complete blockades will not be permitted. Short of that, there exists a continuum that must be evaluated case by case as to whether the union’s conduct should be enjoined: Unifor , para 63 . [ 37 ] With that context in mind, I turn to analysis of the issues before the Court. 4.

Have the employers established a serious issue to be tried regarding picketing? [ 38 ] I find that the employers have failed to establish a serious issue to be tried in respect of their complaints about picketing. [ 39 ] Though the “serious issue” threshold is not difficult to clear, an applicant bears the onus to file the necessary evidence.

The Court should review the evidence to ensure that it is admissible and sufficiently cogent to clear the “serious issue” bar, and that it addresses the elements of the claims pleaded by the employers. [ 40 ] On those criteria, the employers have problems. [ 41 ] The employers filed evidence over the course of three affidavits that they view as demonstrating wrongful conduct on the part of picketers: a. On the morning of September 7, the employers’ counsel sent an email to the union to require union members not to trespass on hotel property. b.

Several photographs that the employers say depict picketers on hotel property. The photographer was not identified in the employers’ materials, but the union accepts that its picketers are shown in the photos. c. Photos of picketers at entrances to hotel parking lots. d. Hearsay evidence of customer complaints, with a note signed by four individuals (whose names were redacted without explanation) that reads as follows. The note is dated September 8, 2023: Today entering the roadway to Heritage Inn where we have reservations the picketers blocked our way while the car was moving causing us to almost hit them.

Afterwards we were shouted at and sworn at. Protesters were intimidating anyone staying at the hotel. The employers filed no evidence as to the circumstances in which the note was received, including whether it was provided voluntarily or was solicited. e. Susan Takeda avers in her affidavit sworn September 14, 2023, that on September 7, 8, 9 and 10, 2023: … there have been issues where delivery drivers were denied access to the Heritage Inns, both in Moose Jaw and Saskatoon.

Certain deliveries have not made it to the Heritage Inns, due to the Defendant’s blocking access to the property. With respect to deliveries not arriving, the employers offer no further detail. f. The Saskatoon hotel received a customer complaint that entry to the property was blocked and that a picketer’s dog jumped on their car. A low-resolution photo was filed showing a dog on a leash that appears to be no taller than the top of an adult’s shin. A similarly redacted note was also filed. g. In her third affidavit, Ms.

Takeda provided a video of a union official, Cory Cozart, video-recording a delivery vehicle at the entrance to the Moose Jaw hotel using his phone. h. The employers filed photos of signs placed by union members on what they say is hotel property. i. An unknown person filed the following poor review on an Expedia Group website: “Hotel employee union was on strike and picketing and [ sic ] the entrance. As I tried to leave they would walk in front of my vehicle harassing me.” j. Ms.

Takeda swears that delivery drivers were denied access and that “Certain deliveries have not made it to the Heritage Inns due to the Defendant’s blocking access to the property”. She provides no further detail. k. The employers filed photos of signs that they say were placed on hotel property. If the signs were not on hotel property, then the employers suggest that the conduct is wrongful because that would be property of the municipality. [ 42 ] Admissibility is the first concern. The King’s Bench Act contains a provision specific to the granting of injunctions in labour disputes.

Section 9 -7(4) specifically requires that an affidavit to support an application for an interim injunction in a labour dispute must be confined to facts that the deponent can prove from the deponent’s own knowledge. Many of the statements in Ms. Takeda’s affidavits do not satisfy that requirement. Accordingly, I cannot ascribe much, if any, weight to those allegations. Examples include the following: a. Ms. Takeda’s affidavit sworn September 14, 2023: paragraphs 16 and 20, and Exhibit “F”; b. Ms.

Takeda’s affidavit sworn October 10, 2013: paragraphs 5 and 8, and the complaints attached as Exhibits “B” and “F”; and c. Ms. Takeda’s affidavit sworn October 13, 2023: paragraph 6 (except for Exhibit “A” referred to therein, as the union admits that the video is of Mr. Cozart). [ 43 ] Those passages and exhibits all fall afoul of s. 9-7(4) of The King’s Bench Act , and I have not considered them here. There may be other instances, but Ms. Takeda’s affidavits contain many vague and unattributed statements, making it difficult to determine what is in her personal knowledge.

As well, there exist requirements in The King’s Bench Rules that have not been met in the employers’ evidence, but s. 9-7(4) is of particular importance here. Much of the employers’ evidence on picketing does not clear threshold admissibility for truth of contents. The employers have filed no admissible evidence as to the contents of any customer complaint. [ 44 ] Second, while acknowledging that their picketers appear in certain photos (identifiable by the bibs they are wearing), the union argues that the photos show no blocking of traffic. As it is unclear what direct knowledge Ms.

Takeda has, the photos take on additional importance. I agree with the union. There is no obstruction of the path of any vehicle in any photo. Any vehicles shown in photos do not have their path blocked. Delays, if any, may have been of mere seconds in duration, which is unlikely to be actionable.

The evidence does not address whether deliveries could be or were made later, what was not delivered, or whether there was any business or operational impact from failed deliveries. [ 45 ] Third, the employers have failed to satisfy me as to where their property lines are located and, thus, that picketing was occurring on their property. As noted above, I directed that they file surveyor’s certificates, also known as real property reports.

The objective of that direction was clearly to ascertain the property lines, and in my view, it was understood by counsel. [ 46 ] What was filed does not clearly or reliably show where property lines are. For the Saskatoon property, something akin to a survey from the City of Saskatoon was filed. The employers contend that the diagram shows that the property runs all the way to the street, but I do not see that. I do not see any demarcation of property lines, and the document suggests in text above the diagram that there are boulevards of 2.5 to 4.7 metres.

Without more, I cannot conclude from the Saskatoon documents that the hotel property runs to the street. [ 47 ] The documents filed for the Moose Jaw property demonstrate nothing about property lines. The employers contend that the fence shown in photos represents the property lines, but I have no way to ascertain that. Photos showing the fence show only a single case of a picketer inside the fence line, which is discussed in the next paragraph. [ 48 ] As a result, with a single exception the employers therefore have failed to file evidence showing that picketers were on their property at all.

The exception relates to a Moose Jaw picketer who took a phone call and walked into the parking lot, which is far from an egregious violation as she was not actively picketing (though still wearing her union bib). [ 49 ] In the photo showing signs, they have been placed directly adjacent to the roadway. I am unable to determine whether signs were placed on hotel property. If they were on city property, that is for the city to enforce.

The photo of signs does not demonstrate wrongdoing. [ 50 ] Fourth, I am skeptical that the dog seen in one photo would be capable of jumping onto a car unless it was being held in someone’s arms. If it did, that is inappropriate and should not be repeated. But it falls far short of indicating a pattern of conduct that should result in an injunction.

[ 51 ] If the union has engaged in wrongful conduct, the employers have had ample time to gather evidence of it. The lockout has been ongoing since September 7. Between then and when I heard argument, 5½ weeks passed. The employers filed three affidavits in that time, unable to allege anything of significance in the deponent’s personal knowledge. Even the hearsay evidence, if I were to accept it, does not amount to much evidence of wrongful conduct over the course of several weeks. The employers are always present – it is their premises.

They have security footage covering their lobbies and at least one parking lot. It appears from data shown in screen captures that their security systems include multiple cameras. There has been ample opportunity to capture inappropriate activity on video and put it into evidence.

That has not happened, and the logical inference is that the picketers are by and large engaging in normal and protected picketing activities. [ 52 ] For an example of compelling and persuasive evidence filed by the employer in a labour dispute, as a contrast to the employers’ evidence here, see Great Canadian Railtour Company Ltd. v Teamsters Local Union No. 31 , 2012 BCCA 238 . [ 53 ] As a result, the employers have not persuaded me that they have established there is a serious issue to be tried concerning picketing. [ 54 ] Even if I were persuaded that the employers had cleared the “serious issue” threshold, I would not find that they had established irreparable harm.

Nor would I find that, upon balancing the equities, the Court should intervene to enjoin the union’s picketing activities. The evidence filed, even if accepted, suggests nothing more than trivial breaches by the union. It does not support that the union’s conduct should be restrained. The only damage even alleged was the discounting of one guest invoice for an amount not put into evidence. [ 55 ] One example of conduct cited by the employers might have cleared the “serious issue” threshold regarding picketing.

The employers filed a video that they say shows Cory Cozart of the union using his phone to photograph or video a delivery vehicle. That individual appears to be on the roadway and seems to be recording something on a device, though from a considerable distance. The union acknowledges that it was Cory Cozart and says it was to show that a delivery vehicle arrived without incident. That explanation ignores the potentially intimidating effect on persons wishing to access or exit hotel property.

The union also says, however, that it has issued GoPro cameras to picketers so they can routinely document interactions in the event more allegations are made. That strikes me as a more appropriate approach.

On this point, I will accept the union’s change to the GoPro approach while indicating that the union heightens its risk of a further injunction application if picketers record traffic in an overt manner. [ 56 ] If the union engages in intimidating conduct, pickets on the employers’ properties or unreasonably delays traffic, that can amount to conduct that the Court will intervene to restrain, provided that the employers file admissible evidence that establishes those actions to the “serious issue to be tried” standard.

Because the employer did not do that, its application to enjoin picketing activity must be dismissed. 5. Have the employers established a serious issue to be tried regarding leafleting? [ 57 ] The employers allege two torts relating to the leafleting: trespass and inducing of breach of contract. In respect of inducing breach of contract, I find that the employers have not cleared the “serious issue to be tried” threshold. The employers have cleared the threshold concerning trespass. My analysis follows. (

a) What principles regarding leafleting may be drawn from KMart ? [ 58 ] The leading decision on leafleting is KMart so I begin there. In KMart , the Supreme Court of Canada determined that leafleting differs from picketing. It does not involve impeding access. Leafleting may lead to loss of revenue by an employer arising from the union’s ability to persuade the public not to do business with that employer through the information conveyed via the leaflets and through conversations between leafleters and consumers.

The Supreme Court viewed leafleting as indistinguishable from a legal consumer boycott campaign: KMart , para 43 . The Supreme Court also outlined some circumstances where leafleting could equate to picketing, such as where access is blocked, the leafleters carry signs or if the leaflets are directed at workers in the premises: KMart , para 56 . [ 59 ] Because of the findings in KMart , leafleting’s legality cannot be questioned unless there is an additional wrongful element.

The issue is whether the activity is allowed on an employer’s property and whether in Saskatchewan that amounts to trespass, i.e. , whether the trespass is a wrongful activity that makes the leafleting illegal. The employers say that the leafleters breached The Trespass to Property Act , SS 2009, c T-20.2 [ Trespass Act ], and committed the tort of inducing breach of contract. (

b) Are primary picketing, secondary picketing and leafleting all subject to the same rules in Saskatchewan? [ 60 ] The employers contend that KMart and Pepsi SCC make it obvious that at least the Trespass Act has been violated, because in Saskatchewan, picketing, secondary picketing and leafleting are all treated the same under the law. If that is correct, it becomes much easier for the employers to make out the torts that it pleaded.

For the following reasons, I cannot agree with the employers. [ 61 ] The employers’ theory is founded in differences in legislation between Saskatchewan and some other provinces regarding picketing. Saskatchewan legislation does not regulate picketing. Because of that, the employers argue that picketing, secondary picketing and leafleting all need to receive the same treatment. [ 62 ] In my view, Pepsi SCC stands for essentially the opposite proposition.

Secondary picketing does not involve a coercive picket line, and the dangers of signaling (not to cross the picket line) and coercion are reduced: Pepsi SCC , paras 93-100 . [ 63 ] Leafleting, whether primary or secondary (I will address the trespass element of primary leafleting below), is more akin to secondary picketing than to primary picketing. In deciding in KMart that leafleting is generally distinct from picketing, the Supreme Court gave substantially the same reasons that it later gave in Pepsi SCC for differentiating secondary picketing.

Leafleting does not entail the same coercion as a picket line, and the dangers of signaling are reduced. See KMart , paras 39-43 .

[64] In KMart, the Supreme Court discussed a picket line’s signaling effect as follows: 42 The decision for people, whether employees, suppliers or consumers, not to cross the picket line may be based on its coerciveeffect rather than the persuasive force of the picketers. As the Board noted (at p. 54), “picketing is both a signal and the exercise offreedom of expression”.

It is the “signal” component of conventional picketing which attracts the need for regulation and restriction insome circumstances. “Because it is an exercise of freedom of expression, it deserves constitutional protection; yet because it is a signal, itneeds to be regulated and restricted.” In Dolphin Delivery [ (SCC), [1986] 2 SCR 573], the “signal” effect of the activityimpeded employees trying to reach their workplace.

While that pressure may be properly applied against the primary employer, when itis brought against a neutral party by means of secondary picketing then it may not be permissible. [Emphasis added] [65] In subsequent paragraphs, KMart then explains the differences between leafleting and a picket line. Leafleting isaimed at persuading members of the public through informed and rational discourse “which is the very essence of freedom ofexpression”: KMart, para 43.

It does not impede access or egress significantly, and any harmful effects on an employer do not differfrom those resulting from a consumer boycott campaign. It is “well nigh impossible” to distinguish between informing consumers“through leafleting at the place of purchase and the situation whereby the same consumers” are persuaded to not buy through leaflets inthe mail or billboard advertising: KMart, para 43. [66] KMart did not stop there.

At paragraph 49, it quoted with approval the following passage from a text oncollective bargaining law in Canada: [49] … Pickets are appealing to the secondary’s employees to breach their employment contracts or collective agreements. Because of the credoof loyalty to the picket line, the probability of these breaches occurring is significant – so also is the probability of the employees ofsuppliers or customers of the secondary refusing to cross the line. ... Spillovers which may have serious economic effects on thesecondary and others are unavoidable.

Many of the possible restrictions and limitations suggested in the previous discussion ofproduction picketing were designed to limit the probability of such consequences. ... Limitations on consumer-directed activity are not as easy to justify. Unlike employee picketing, a consumer boycott does not inducesecondary employees to break their employment contracts, nor does it cause suppliers to break their supply contracts. It merely appealsto consumers to make an independent decision to refuse to purchase the offending product.

Such an appeal affects demand for theproduct, and the secondary will be induced to decrease or limit orders for the product. But the union is not coercing an unlawful act,because any person is entitled to make consumption decisions on whatever ground he desires. ...

A labour picket is different from other means of communication because of the “signal” effect that it can have. ... [67] As a result, KMart expressly rejected that picketing and leafleting are indistinguishable, finding instead that theyare “distinct and different activities”: KMart, para 50. [68] In Pepsi SCC, which arose from a Saskatchewan labour dispute, the Supreme Court built on KMart bydetermining that held that secondary picketing differs from primary picketing. [69] None of the foregoing means that leafleters cannot behave in ways that would lead a court to apply picketingrules.

However, I reject the employers’ position that, in Saskatchewan, leafleting is to be accorded the same treatment as primarypicketing because Saskatchewan legislation regulates none of picketing, secondary picketing and leafleting. [70] Now I will turn to the torts alleged by the employers, beginning with inducing breach of contract. (

c) Inducing breach of contract [71] In respect of this tort, I find that the employers have failed to establish on evidence even a serious issue to betried as to whether the leafleters induced any breaches of contract. The employers’ application must be dismissed in respect of this tort. [72] A leaflet is in evidence, and the union acknowledges distributing it. It stated as follows: The Heritage Inn (your employer) has asked you to sign a document. They are bargaining illegally. If you have signed and choose to notgo to work, you CANNOT be disciplined.

What you will lose if you continue to work: • Enhanced vacation entitlement of 4-7 weeks at the current years of service in the collective bargaining agreement (CBA) • Dental, Vision and Health benefits • Scheduling by seniority • Housekeeping workload limits • Consecutive days of rest These are only a few of what you’ve negotiated into your contract with UFCW 1400. The Heritage Inn does not have to follow your

union contract. Questions? … [Emphasis in original] [73] There can be no doubt that the leaflet was aimed at union members who opted to accept employment directlyfrom the employers for the lockout period. [74] The union acknowledges that some members agreed to work for the employers during the lockout but arguesthat the contracts were invalid because they were offered on September 5, 2023, before the lockout began. At that point, the CBAremained in force.

The union says that the employers had no legal right to contract with its members until the lockout began onSeptember 7. [75] This Court dealt with the tort of inducement to breach in Boyd v Eacom Timber Corporation, 2012 SKQB 226,[2013] 1 WWR 569 [Boyd]. The tort’s essential elements are as follows (see Boyd, paras 156-161): a. There must be an existing contract between the plaintiff and another person. b. There must be an intention to cause a breach of contract. That is satisfied by the desire to cause a breach. c.

There must be conduct inducing the breach, which occurs when the defendant “directly persuades or induces a third party to breakthe contract”: Boyd, para 160. d. The plaintiff must have suffered damages. [76] The employer filed evidence that “Many” employees accepted contracts. The union filed a copy of whatapparently is an unsigned contract offered to one employee. The employee’s name is redacted. No signed contracts were filed by eitherparty. The Court has no evidence on how many employees signed such contracts. The Court has no evidence about how many peoplework at the hotels.

There is no evidence that any individuals who signed contracts missed even a moment of work. Put simply, there isno evidence of any impact on the employers at all. [77] In Pepsi CA, an injunction case, the majority of the Court of Appeal stated, at page 236: This is a complex matter, both of principle and fact, and requires that an exacting factual foundation be laid, including proof of thecontract or contracts the performance of which is said to have been interfered with: Garry v. Sherritt Gordon Mines Ltd. [(1987), (SK CA), 45 DLR (4th) 22 (Sask CA)].

And even then, complaints of this nature are fraught with difficulty, not necessarilyin the case of direct interferences with contractual relations, but certainly in the case of picketing as interference.

And picketing ingeneral is certainly not to be enjoined on the basis it may be actionable in the abstract, having regard for the tort of procuring or inducingbreach of contract. [78] Consistent with what the Court of Appeal stated was required in Pepsi CA, in another claim for injunctive relief,Siksika Nation v Crowchief, 2016 ABQB 596, claims for damages suffered were advanced. [79] The employers provided no authority and have not even suggested that this claim can be brought on ananticipatory basis. The allegation of the tort is not complete without damages.

In my view, the lack of any allegation that contracts werebreached is fatal to this aspect of the application. [80] I therefore conclude that the employers have failed to make out even a serious case to be tried with respect to theinducing breach of contract allegation. The alleged tort of inducing breach cannot comprise the wrongful action portion of what theemployers must establish to obtain injunctive relief. [81] As an aside, the union filed no authority to support its contention that the employers had no legal right tocontract.

I located no relevant authorities, but the need to provide this decision expeditiously prevented a thorough search. The form ofcontract that was filed contemplates work during the labour dispute only. Because of that, I am not persuaded of the invalidity of thecontracts that the employers entered into. If that were the only challenge to the employers’ application, it would easily clear the “seriousissue” threshold. (

d) Trespass [82] The question of whether peaceful leafleting on an employer’s property is trespass was considered byRichmond J. in Moose Jaw Co-op. The union argues that I either am obliged to follow it or at least should follow it. The first contentiondepends on the concept of judicial comity. [83] I determine that I am not bound by judicial comity because Richmond J.’s ultimate determination on the trespassquestion (found in paragraph 24 of Moose Jaw Co-op) did not go further than to find that the Board Decision was reasonable.

She did notneed to decide that the Board Decision was correct, nor did she decide that. [84] As there is no question here to be decided on a reasonableness standard, the question posed by this applicationhas not yet been determined by a court in Saskatchewan, and judicial comity cannot apply. [85] Where there is a legitimately disputed point of law, the “serious issue” threshold should generally be found tohave been cleared at least on the legal question. In Boyd, Dawson J. declined to find that pleadings were frivolous or vexatious because

the contents of one element of the alleged tort had been found by the Court of Appeal to be the subject of legitimate dispute. See Boyd , at para 171 . What a party must establish to resist a pleading being struck for being frivolous or vexatious is that there is a serious issue to be tried.

As such, the principle applied by Dawson J. concerning a legitimate dispute on a point of law applies here as well. [ 86 ] Unlike the evidence concerning picketing, there is little doubt that the union’s leafleters carried out that activity on the employers’ properties. [ 87 ] As judicial comity does not require me to follow Moose Jaw Co-op , I conclude that that the issue of whether primary leafleting amounts to trespass under the Trespass Act should not be treated as settled.

Accordingly, because the leafleting occurred on hotel property, I find that the employers have raised a serious issue to be tried in respect of whether the leafleters violated the Trespass Act . [ 88 ] It remains to be determined whether the employers have cleared the remaining tests for injunctive relief concerning trespass. I turn to that next. 6. Have the employers satisfied the remaining arms of the test for injunctive relief in respect of leafleting? [ 89 ] In light of Mosaic , the remainder of the injunction test is most efficiently addressed in this case with an integrated analysis.

Unless there is a strong reason to review the arguments on harms, balancing of harms and exercise of judicial discretion separate from one another, they logically may be discussed together. [ 90 ] I find that the harms suffered by the union if I enjoin leafleting on the property of the hotels would be more severe than the impacts on the employers if I do not enjoin it.

Further, although I am satisfied that the employers have established a serious issue to be tried on the tort of trespass, consideration of the trespass issue in the broader context of this dispute does not persuade me to exercise my discretion to order an injunction. [ 91 ] The employers argue that the union’s actions are inflicting genuine harm on a daily basis. That is not, however, established by any evidence.

The employers argue in their first brief that “Each trespass, interference with economic relations, and inducement of breach of contract creates irreparable harm to the Heritage Inns.” But no evidence supports that statement. There is no evidence on the impact of leafleting. The interference of economic relations heading relates to delivery drivers for which there is no admissible evidence. If it were admissible, it would be too vague to support injunctive relief. The evidence concerning inducing breach of contract is discussed above and did not clear the “serious issue” threshold.

There is no evidence of any impact from leafleting on hotel property. There is no evidence of picketers or leafleters having done anything that would cause the Court serious concern. [ 92 ] The union’s arguments focus largely on: (

a) whether the employers come to this with clean hands (which I need not decide); (

b) where this dispute fits into the continuum of conduct that courts have encountered in labour disputes (that this situation is far from severe); and (

c) the infringement of leafleters’ Charter right to expression and the impact that would have on the union’s ability to influence the public concerning this dispute. [ 93 ] I find the union’s arguments concerning the severity of conduct and infringement of expression to be compelling. Above, I characterized the employers’ complaints as largely seeming trivial. In contrast, the loss of ability to communicate the union’s message would be irreparable.

It could affect negotiations in ways that are impossible to discern, as it could both weaken the union’s bargaining stances while empowering the employers. [ 94 ] In my view, the majority decision in Sherritt (particularly if read in conjunction with decisions such as KMart and Pepsi SCC regarding the importance of expressive rights for unions) still stands for the proposition that caution is warranted when a court is asked to order injunctive relief against a union.

As Sherritt stated at paragraph 106 : [106] The point of this is two fold: first, no modern application of the doctrines in issue in the context of a trade dispute, especially those associated with actionable interference with contractual rights, can fail to have regard for the profound changes which have occurred since those doctrines first evolved, including the changes reflected, generally, by the Trade Union Act ; second, no current refinement or extension of the torts at issue can be made in disregard of the continuing need to balance the various economic interests at stake.

The law remains concerned to protect contractual rights from unjustified invasion of third parties, as it does to protect the rights associated with the ownership and enjoyment of property, but it is equally concerned now to protect the peaceful pursuit by associations of employees of their legitimate economic interests . [Emphasis added] [ 95 ] I highlight that passage not to suggest that application of the Trespass Act here represents extension of a tort.

Rather, the fundamental question is whether the relief sought by the employers should be granted in light of the Charter protection accorded to the rights of expression of union members, particularly in the context of what is actually happening at the two hotel locations. [ 96 ] Although I am not bound by judicial comity, that does not mean that the Board Decision can have no persuasive effect. I find it to be persuasive.

In finding that the leafleting activities on the premises of the Co-op gas bar were permissible, the Board reviewed how the leafleting was done (with only one person handing out leaflets, but the site was considerably smaller than the hotel sites would be), that there was no evidence of impeding access by the leafleter (nor here), and that there was no intimidating behaviour (nor any established here).

As were all the union’s activities described in admissible evidence here, the leafleting activities were peaceful. [ 97 ] The employer argued to the Board that leafleting is a common law right that can be abridged through legislation. The Board concluded at paragraph 81 that this argument overlooked two important points. First, KMart found that leafleting is protected expression under the Charter . Second, the Charter informs development of the common law and

interpretation of legislation. As such, the Board held:

[82] If the Board were to accept the Employer’s argument, it would mean that an Employer had the power to circumvent the protection for consumer leafletting by serving a notice pursuant to The Trespass to Property Act . The Employer’s arguments, taken to their logical conclusion, would mean that an Employer could redefine the parameters of the protection according its own terms. This cannot be so. [ 98 ] By that point in the Board Decision , the Board had already found that the union was engaged in lawful leafleting (paragraph 71).

I find the Board’s reasoning persuasive. [ 99 ] In KMart , the Supreme Court elaborated as follows as to why leafleting needs protection: [46] However, it is the means utilized to achieve that pressure which distinguishes these actions. The public has a right to know the factual background and nature of a labour dispute. Indeed it is often the weight of public opinion which will determine the outcome of the dispute. Information regarding the factual background and the position of the parties may be very properly disseminated by them.

For example, this may be achieved by a party purchasing space in newspapers or billboards or by purchasing time for announcements to be made by radio or television. In most labour disputes, it is far more likely that the employer will be able to afford and utilize these means of putting forward its position. Fairness dictates that employees should be able to put forward their position to the public by distributing leaflets in the manner adopted by the appellant in this case. Even though in KMart the activity was secondary leafleting, that passage is apt in the context of this dispute.

I find that the union’s leafleting activity was permissible and protected by the Charter . [ 100 ] Before I conclude, a further argument by the employers needs to be addressed. The employers say that one reason why leafleting on hotel property cannot be permissible is that then there is no logical place that it stops. They ask, can the leafleters also do it in hotel lobbies, or in guest rooms?

Though it is absurd to suggest that permitting leafleting outside the entrance to a hotel translates to allowing it in guest rooms or other reserved spaces inside a hotel such as meeting rooms, there is validity to the question about the lobby spaces. [ 101 ] An important reason why leafleting outside the entrance door should be permitted in this situation and in the case of the Moose Jaw Co-op gas bar is that in the two situations, most traffic would be vehicular. It would be simple for drivers to avoid receipt of information such as contained in a leaflet by declining to lower their windows.

The Charter right involved is freedom of expression. If leafleters are confined to where it would be highly difficult to communicate their message, the right is substantially diluted. [ 102 ] There needs to be a balancing of interests between the employers and the union. Any employer’s interest in the peaceful use of its property should be intruded upon to the minimal extent necessary to allow the leafleters to exercise their right in a reasonable fashion. That would not ever extend to guest rooms in a hotel.

Guests are third parties with privacy expectations that would be severely infringed if that were allowed. [ 103 ] In these circumstances, where the ability exists to station themselves outside exterior doors, it is not necessary for leafleters to be in a hotel lobby to exercise the right to expression. What I conclude should be permissible here – leafleting outside hotel entrances – is no more than what was actually happening. If the activity were to move indoors, that could alter the balancing analysis.

If it were to move into spaces reserved by guests for personal or business use, that would dramatically alter the balancing. It follows that the floodgates argument does not have merit. [ 104 ] Accordingly, I conclude that when balancing the harms or respective impacts, the impact on the union of enjoining the conduct shown to have occurred here would be far greater than the impact on the employers of not enjoining it. If the conduct escalates, that can form the basis of another application by the employers.

But the granting of an injunction in these circumstances would tip the balance substantially in the employers’ favour. [ 105 ] I also do not consider this an appropriate circumstance to exercise my discretion to grant injunctive relief, for the reasons discussed above. E.

CONCLUSION [ 106 ] Similar to the approach taken by Pierce J. in Bombardier Transportation Canada Inc. v Unifor , 2014 ONSC 4635 [ Bombardier ], my view is that it is best to give the union the opportunity to control picketing behaviour, keeping in mind that if the situation were to deteriorate, the Court would be prepared to revisit the situation. See Bombardier , para 31 . [ 107 ] From evidence filed by the union and exchanges with union counsel during oral argument, I am persuaded that the union understands the rules of picketing and has made reasonable efforts to ensure that picketers comply.

If problems escalate, it is open to the employers to make a further with notice application on evidence that complies with the requirements of The King’s Bench Act and The King’s Bench Rules . [ 108 ] The employers’ application is dismissed. The interim injunction is lifted effective immediately. [ 109 ] The union shall have its costs of this application fixed at $2,500.00, payable forthwith in any event of the cause. J. D.G. GERECKE

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 242 Date: 2023 12 11 Docket: KBG-SA-01092-2023 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: SASCO DEVELOPMENTS LTD. o/a HERITAGE INN – MOOSE JAW, and 610539 SASKATCHEWAN LTD. o/a HERITAGE INN – SASKATOON Plaintiffs - and - UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400, and LUCIA FLACK FIGUEIREDO Defendants Counsel: Steven J. Seiferling for the plaintiffs Heath P.

Smith for the defendants ___________________________________________________________________________ CORRIGENDUM to 2023 SKKB 242 (November 10, 2023) GERECKE J. December 11, 2023 ___________________________________________________________________________ [1] In paragraph 12, the

section number is corrected to read “s. 9-7(2)”. [2] In paragraph 96 (in the sixth line), it is corrected to read “… by the leafleter ….” “D.G. Gerecke” J. D.G. GERECKE