Unifor Canada Local 594 Appellant (Defendant) v. Consumers’ Co-Operative Refineries, 2021 SKCA 34

Court of Appeal for Saskatchewan Docket: CACV3563 Citation: Unifor Canada Local 594 v Consumers’ Co-Operative Refineries Limited , 2021 SKCA 34 Date: 2021-03-09 Between: Unifor Canada Local 594 Appellant (Defendant) And Consumers’ Co-Operative Refineries Limited Respondent (Plaintiff) Before: Jackson, Ottenbreit and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Ottenbreit In concurrence: The Honourable Madam Justice Jackson The Honourable Mr.

Justice Kalmakoff On appeal from: QBG 3302 of 2019, Regina Appeal heard: May 4, 2020, and September 28, 2020 Counsel: Rick Engel, Q.C., Crystal Norbeck, and Sam Schonhoffer on May 4, 2020, and Rick Engel Q.C. on September 28, 2020, for the Appellant Eileen Libby, Q.C., Jodi Wildeman and Matthew Klinger on May 4, 2020, and Jodi Wildeman on September 28, 2020, for the Respondent Ottenbreit J.A. I.

INTRODUCTION [ 1 ] Unifor Canada Local 594 [Union] appeals against an injunction restraining picketing by its members [Order] granted to Consumers’ Co-Operative Refineries Limited [CCRL] in a decision of the Court of Queen’s Bench for Saskatchewan: Consumers’ Co-Operative Refineries Limited v Unifor Canada, Local 594 (24 December 2019) Regina, QBG 3302 of 2019 [ Decision ]. [ 2 ] The Order was granted in a labour dispute between the parties involving a lockout, strike and picketing at the properties and facilities of CCRL in Regina. That dispute was settled in June of 2020 and the Union removed its picket lines.

Accordingly, the Order which restrained the picketing activities of the Union and placed conditions on it is no longer operative nor necessary. [ 3 ] As I will explain, this appeal is moot. However, I have concluded, despite that, it is appropriate for this Court to deal with and determine the appeal in respect of one discrete issue; whether it was appropriate to include in the Order a term that allowed persons attempting to cross the picket line to decline to listen to the Union’s message and proceed without delay.

I will refer only to the facts and background and those parts of the Decision and Order that are germane to that issue. [ 4 ] For the reasons hereinafter set forth, the appeal is dismissed. II. FACTS AND BACKGROUND [ 5 ] CCRL operates an integrated petroleum products refinery together with supporting facilities in Regina. The refinery and facilities are spread out over a number of property locations.

CCRL distributes refined petroleum products to member co-operatives as well as other industrial, commercial and retail customers in Canada and the United States. [ 6 ] The Union is the certified representative bargaining agent of all employees of CCRL except for certain excluded managerial employees. [ 7 ] The Union and CCRL have, in the past, been parties to a succession of collective bargaining agreements [CBA]. After the most recent CBA expired, the parties engaged in collective bargaining for a new CBA. There were a number of contentious issues being bargained, pensions being one of them.

The parties reached an impasse on various issues. Negotiations ground to a halt with each party standing firm on their respective bargaining positions. [ 8 ] The Union served notice on CCRL pursuant to The Saskatchewan Employment Act , SS 2013, c S-15.1 , permitting it and its members to take job action up to and including strike at any time after December 5, 2019 at 4:30 p.m. In response, CCRL served a lockout notice on the Union to take effect at 5:30 p.m. on December 5, 2019. [ 9 ] The Union then started round-the-clock picketing at CCRL facilities and properties.

Picket lines were set up primarily at points of ingress and egress to the CCRL facilities. The number of Union members on a picket line varied and depended on the location of the picket line and time of day. [ 10 ] CCRL continued to operate during the labour dispute using out-of-scope employees as well as contractors and suppliers. To reduce the need for out-of-scope employees and replacement workers to cross the picket lines, CCRL installed a camp within the Co-op

Refinery Complex in Regina [Complex] to accommodate some of these workers who were required to regularly enter and exit CCRL’sproperties. [11] Also entering CCRL’s properties were continuous deliveries of supplies, such as parts and specialized chemicals needed for itsoperations, as well as food and household supplies for the workers in the camp. Fuel tanker trucks contracted by CCRL also accessed itsproperties to pick up and distribute refined petroleum products to CCRL’s customers.

Historically, during the month of December,approximately 210 such fuel trucks would travel into and out from CCRL’s properties each day. [12] The parties’ views on the nature and effects of the picketing that took place leading up to the Order differed. The Unioncharacterized the picketing as peaceful.

It indicated that its picketing was aimed at protecting its members’ pensions and workingconditions, and that its communications with outside parties (e.g., truck drivers) involved explaining the origins of the lockout, outliningthe demands for the rollback of its members’ pensions and life insurance by CCRL, and responding to misleading messages from CCRL’smedia and advertising campaigns. [13] CCRL viewed the picketing as establishing blockades at the Complex, which it says included Union members physicallyobstructing entrances to the properties, placing traffic cones across entrances and, in some cases, parking vehicles to obstruct entrances.CCRL viewed this activity as preventing access by vehicles carrying employees, contractors and supplies.

It submitted fuel tanker trucksexperienced lengthy delays before they were permitted to enter or exit CCRL properties because of the alleged blockade. [14] CCRL commenced an action against the Union, alleging it and its members had engaged in unlawful picketing, thereby causingprivate nuisance, interference with contractual relations, intimidation, unlawful interference with economic relations and violations ofs. 423(1)(

c) and (

f) of the Criminal Code. It also sought an injunction prohibiting picketing. [15] CCRL served notice for an interim injunction and applied for an ex parte order pending a full hearing. On December 17, 2019,the Chambers judge issued a temporary interim injunction [Ex Parte Interim Order] on the following basis and terms: [4] CCRL also asserts picketers are obstructing access to and exit from their facilities. The allegations, not yet challenged by Unifor,are that the picketers are going beyond conveying information and soliciting support as they are entitled to do.

CCRL asserts the picketersare causing serious delays for persons attempting to enter or leave CCRL properties. Consequently, I accept that until a full hearing of theapplication, serious mischief would occur if I do not limit the right of picketers’ to communicate information to those wishing to receive itto a maximum of five minutes: see Industrial Hardwood Products

(1996) Ltd. v International Wood and Allied Workers of Canada, Local2693 (2001), (ON CA), 52 OR (3d) 694 (Ont CA) and Unilux Boiler Corp. v Fraser, [2005] OJ No 2410 (Ont SupCt). [5] Consequently, an order may issue, pursuant to Rule 6-41, restraining the respondents from impeding, obstructing, or interferingwith the ingress or egress to or from the applicant’s property, except for the purpose of conveying information and/or soliciting support, toa maximum of five minutes. (Emphasis added) [16] Shortly thereafter, the matter proceeded to a full hearing. III.

THE DECISION [17] The interim injunction application was heard on the merits on December 23, 2019. The Decision and the Order were issued thenext day. [18] The affidavit material before the Chambers judge covered the period from December 5, 2019, when the Union established thepicket line at the Complex, to December 13, 2019. Actions complained of by both the Union and CCRL in their affidavit material tookplace at and near the Complex and outside of Regina. The affidavits contained many allegations of intimidation and inappropriate orunlawful conduct.

The competing allegations of the parties are listed in paragraphs 13 and 14 of the Decision. In

summary, the Chambersjudge found each side attempted to intimidate the other, and the Union was delaying access of vehicles carrying replacement workers,supplies and fuel into and out of the Complex. [19] In the Decision, the Chambers judge first reviewed the governing law, including the essential criteria for assessing whether toenjoin picketing during a labour dispute, citing both this Court’s decision and the Supreme Court of Canada’s decision in Pepsi-ColaCanada Beverages (West) Ltd. v Retail, Wholesale and Department Store Union, Local 558 (1998), (SK CA), 172Sask R 40 (CA) at para 28 [Pepsi CA] (affirmed 2002 SCC 8, [2002] 1 SCR 156 [Pepsi SCC]). [20] After reviewing the function of the court in an application to enjoin picketing, the Chambers judge stated: [27] According to the case law, I conclude that I must recognize the following principles on this particular application for aninjunction: 1.

That picketing is an important and constitutionally recognized form of expression: B.C.G.E.U v [British Columbia (Attorney General), (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 and dobusiness with the employer: [Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013SCC 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: in C.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. [ 21 ] The Chambers judge noted that CCRL sought a more restrictive injunction, prohibiting any delay in entering or leaving its property.

Correspondingly, the Union argued an injunction was not warranted but, if granted, sought more time to delay persons crossing the picket line so that its members could communicate its message. [ 22 ] After considering all of the foregoing as well as the evidence in the affidavit material, the Chambers judge made a number of determinations: (

a) For the purposes of the interim application, the individuals aligned with CCRL and the Union had attempted to intimidate those on the other side; (

b) The Union had engaged in activity designed to impede and/or block the traffic flow in and out of CCRL property; (

c) CCRL had not acknowledged or accounted for the intimidating behaviour of its security personnel or other employees and contractors, nor provided evidence to counter the allegations that it was dispatching fuel trucks unnecessarily; (

d) Despite the foregoing, Union members were not permitting replacement workers to enter CCRL property and were slowing fuel trucks from entering into and exiting from the facilities beyond what was permitted; (

e) CCRL had established a strong prima facie case that the manner of picketing during the first week-and-a-half of the lockout was unlawful, as the apparent purpose of some of the picketing was not for the members to disseminate information to the public or to solicit support from the public but to intimidate replacement workers and others from entering the CCRL facilities. However, the Union had taken control of the unlawful behaviour, except with respect to replacement workers; (

f) If the picketing were enjoined more strictly than for five minutes, the Union would lose its ability to effectively communicate its position to the public and solicit support for its position. Those losses were not compensable in damages; (

g) If the Union continued to block the entry of the replacement workers into the complex, CCRL might suffer harm that could not be compensated in damages; (

h) A delicate balance must be maintained between the Union’s right to picket and CCRL’s right to protect its premises; (

i) On a balance of convenience test, the Union would suffer greater harm if its right to communicate its position in the labour dispute and/or to show support for its position were interfered with; and (

j) Long delays of CCRL employees, replacement workers or contractors, as took place before the interim order, could cause tensions to rise to levels where unexpected incidents might occur.

The current order restricting picketing (i.e., the Ex Parte Interim Order) sought to deal with that risk. [ 23 ] The Chambers judge concluded the Decision as follows: [41] Therefore, an order may issue restraining Unifor from impeding, obstructing, or interfering with the ingress or egress to or from the applicant’s property, except for the purpose of conveying information and/or soliciting support and the restriction of access to or exit from the said premises, shall only last as long as necessary to provide information, to a maximum of 10 minutes, or until the recipient of the information indicates a desire to proceed, whichever comes first. (Emphasis in original) [ 24 ] The Order, issued the same day as the Decision , generally contains the same language as paragraph 41 of the Decision .

The portion of the Order stating, “or until the recipient of the information indicates a desire to proceed, whichever comes first”, has been described by the Union as the “ drivers’ exception ”. IV. IS THE APPEAL MOOT? [ 25 ] The Union originally appealed the Decision arguing that the Order be set aside in its entirety. The parties argued this appeal on the merits on May 4, 2020, and the matter was reserved. The labour dispute between the parties that gave rise to the picketing was settled in June of 2020 and the picket lines were removed by the Union.

Accordingly, the injunction – and therefore the Order – was no longer necessary. This raised the issue of whether the appeal was moot. The parties were asked to file further written submissions respecting that issue and did so, appearing again before this Court on September 28, 2020, to argue their positions. [ 26 ] On the question of mootness, CCRL submits there is no longer a live controversy between the parties on the issues raised in the appeal and, therefore, the appeal is moot.

It argues that, just as in Prince Albert Right to Life Association v Prince Albert (City) , 2020 SKCA 96 , [2020] 10 WWR 603 [ PA Right to Life ], the factual underpinnings of the appeal have changed and the relief sought on appeal by the Union no longer serves any practical purpose. It argues that whether the Order should have been granted and, if so, on what terms, has been overtaken by subsequent events and these questions have become an academic issue. CCRL further submits the Court should not exercise its discretion to hear the appeal despite the fact that it is moot.

[27] The Union acknowledges that the lockout is over, the picketing has stopped and that the parties have entered into a revisedCBA. It concedes that an injunction is now unnecessary. However, it disputes that the controversy between the parties is now academicand says the appeal is not moot. It cites several reasons. The first is that CCRL is conducting an aggressive internal investigation of Unionmembers and their picket line activity and, in that context, it matters if the Union members were legally entitled to delay drivers and otherscrossing the picket line for ten minutes.

Second, certain Union members have been charged with criminal offences connected to thedelaying of vehicles. The Union submits the final terms of the injunction will play some

part in the determination of both ongoingproceedings. It argues specifically that the controversy over the right of a driver to keep driving through the entrance without delayremains a live and concrete issue and could adversely affect its members’ rights.

Proceeding with the appeal would therefore not result inan unnecessary or redundant decision, in that it could affect the criminal or investigative proceedings mentioned above. [28] However, the Union candidly acknowledges that a more principled basis for dealing with the issue of mootness in thecircumstances of this case would be for this Court to determine whether it should exercise its discretion to determine the appeal,notwithstanding it is moot.

In this respect, it again focuses on the drivers’ exception in the Order; namely, that despite the fact the Unionmembers could delay ingress and egress to CCRL’s properties for ten minutes, they were not entitled to delay those persons whoexpressed no desire to listen to their communications about the strike. [29] The Union argues that such a provision nullifies its members’ rights under s. 2(

b) and (

d) of the Charter. It submits the interestsof justice weigh heavily in favour of this Court addressing the issue of drivers’ exceptions and the claims of similar third parties thatattempt to cross the picket line. Last, the Union argues that, because the whole of the matter has been thoroughly argued, there will be nowaste of judicial resources. [30] The governing law regarding mootness is set out in Borowski v Canada (Attorney General), (SCC), [1989] 1SCR 342 [Borowski], which establishes a well known two-step framework for dealing with the issue of mootness.

This framework wassummarized by this Court in Dearborn v Saskatchewan (Financial and Consumer Affairs Authority), 2017 SKCA 63, as follows: [16] The consideration of an arguably moot appeal involves two steps. The first is to determine if the appeal is moot, i.e., to determineif it involves a live and concrete controversy between the parties. The second step is to determine whether, notwithstanding that the appealis moot, the court should nonetheless exercise its discretion to hear the case.

That exercise of discretion, according to Borowski, should beundertaken with reference to the underlying basis of the mootness doctrine itself: (

a) the presence of an ongoing adversarial context,perhaps because of the collateral consequences of the outcome of the appeal, (

b) the importance of conserving judicial resources, and (c)the need for a court to be sensitive to its proper law-making function, i.e., its role as an adjudicator of disputes affecting the rights ofparties. [31] In PA Right to Life, this Court further explained: [47] Borowski does not require that each of these three factors informing the exercise of discretion favour a hearing on the merits. AsSopinka J. noted (at 363): In exercising its discretion in an appeal which is moot, the Court should consider the extent to which each of the three basic rationalia forenforcement of the mootness doctrine is present.

This is not to suggest that it is a mechanical process. The principles identified above maynot all support the same conclusion. The presence of one or two of the factors may be overborne by the absence of the third, and viceversa. [32] The first step of the analysis asks whether the appeal is moot and, in particular, whether it still involves a live controversybetween the parties. It focuses on the practical remedies available to the parties. The second step is to determine, notwithstanding theappeal is moot, whether the court should exercise its discretion to hear the matter.

In this regard, the court must look to the presence of anongoing adversarial context, perhaps because of the collateral consequences of the outcome of the appeal, the importance of conservingjudicial resources and the need for a court to be sensitive to its proper law-making function, i.e., its role as an adjudicator of disputesaffecting the rights of parties. [33] With respect to the first step in the circumstances of this case, I am not satisfied there is still a live controversy.

Whether onestill exists depends on a number of factors, which were recently outlined in PA Right to Life: [54] Without attempting to define the term exhaustively, based on the foregoing, I conclude that a live controversy may cease to existin the following circumstances: when the tangible and concrete dispute has disappeared; when the decision will or may no longer actuallyaffect the rights of the parties; where the practical relief sought is no longer available because of alterations in the factual or legal matrixof the case; where the question before the court has ceased to exist or the substratum of the litigation has disappeared; where a decision onthe merits would have no practical effect on the parties’ rights; and where the question the court is now being asked to resolve has beenovertaken by post-decision events or a subsequent decision of a decision-maker. [34] This case falls squarely into the foregoing description.

The Union admits that the labour dispute has ended and the injunction isno longer necessary. The tangible and concrete dispute has disappeared because the parties have settled their dispute. Accordingly, thedetermination of the appropriateness of the terms of the injunction will have no practical effect on the parties going forward. This is, in myview, a clear case where there is no longer any need for a remedy. [35] I am not satisfied that, as the Union argues, a piece of the controversy may remain alive, specifically in relation to the criminalproceedings and corporate investigations mentioned earlier.

Reference to these proceedings is no more than a bare legal argument withoutany factual foundation as to how their determination would relate to the terms of the Order. The absence of any real information about thenature of these matters and the extent to which they are dependent on the exact wording or terms of the injunction is fatal to this part ofthe Union’s argument.

Moreover, I am not convinced that the presence of ongoing separate and discrete criminal matters or corporateinvestigations surrounding members’ actions while on the picket line are truly relevant to the determination of whether a live controversycontinues to exist in this appeal. [36] I agree with the Union that the real question is whether this Court should exercise its discretion under the second part of the

Borowski test. Looking at the issues involved in this appeal, the circumstances of the case and the governing law, I have concluded that itis in the interests of justice for the Court to exercise its discretion to determine one aspect of the appeal; that is, whether the Chambersjudge erred by imposing the drivers’ exception as a term of the Order. [37] This kind of issue is often evasive of review, precisely because labour disputes are often settled before a court can determinethem.

It is an issue that transcends the question of whether the duration of the delay permitted by the injunction is, in the circumstances,appropriate, although that issue, as will be seen, it is related to that delay. Moreover, in this case, the resources of this Court will not bewasted in the circumstances because the issue has been fully argued before us and is of ongoing consequence. [38] Accordingly, this is an appropriate case for this Court to exercise its discretion to determine the issue of whether the Chambersjudge erred in adding the drivers’ exception to the Order, notwithstanding the appeal is moot. V.

ISSUES [39] The issue to be determined is whether the Chambers judge erred by imposing the drivers’ exception as a term of the Order,allowing that any delay “shall only last as long as necessary to provide information, to a maximum of 10 minutes, or until the recipient ofthe information indicates a desire to proceed, whichever comes first” (Decision at para 41). [40] The corollary to this issue is whether such a term is a reasonable injunctive restraint on the Union’s right to picket and theexercise of its members’ s. 2(

b) and (

d) Charter rights in the circumstances of this case. VI. STANDARD OF REVIEW [41] The drivers’ exception is contained in an injunction and, therefore, whether it is an appropriate provision is to be determined onthe standard of review applicable to injunctions.

The Chambers judge’s decision to grant an injunction is a discretionary decision. [42] The applicable standard of review for injunctions was described in 101280222 Saskatchewan Ltd. v Silver Star Salvage (1998)Ltd., 2019 SKCA 59, [2019] 11 WWR 516, where this Court said: [13] A deferential standard of review applies when considering an appeal from the grant or denial of an interim injunction. This Courtmay not interfere with a Queen’s Bench decision of this sort merely because its members might have exercised the discretion in questiondifferently than did the Chambers judge.

See: Manitoba (Attorney General) v Metropolitan Stores Ltd., (SCC), [1987] 1SCR 110 at 153–156. See also: Fettes v Culligan Canada Ltd., 2009 SKCA 144 at para 13, [2010] 6 WWR 420. [14] Deciding whether to grant an interim injunction involves the exercise of judicial discretion.

Accordingly, as per Rimmer vAdshead, 2002 SKCA 12, [2002] 4 WWR 119, this Court should interfere with a Queen’s Bench decision only if it involves an error ofprinciple, the disregard or misapprehension of a material fact, a failure to act judicially or a result that is so plainly wrong as to amount toan injustice. [43] The discretionary standard of review was recently reviewed in Strom v Saskatchewan Registered Nurses’ Association, 2020SKCA 112 at paras 60–63, [2020] 12 WWR 396 [Strom], and Kot v Kot, 2021 SKCA 4 at paras 15–20.

In those cases, the Courtemphasized that, as stated in British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71 at para 43, [2003] 3 SCR 371[Okanagan Indian Band], “the criteria for the exercise of a judicial discretion are legal criteria, and their definition as well as a failure toapply them or a misapplication of them raise questions of law which are subject to appellate review”.

Similarly, as Cameron J.A. put thematter in Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4 WWR 119 [Rimmer], discretionary powers “fall to be exercised as thejudge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise”. [44] The Supreme Court of Canada also said at paragraph 43 of Okanagan Indian Band that appellate intervention in a discretionarydecision is appropriate where the judge made a palpable and overriding error in their assessment of the facts. [45] As this Court noted in Strom, “it must be kept in mind that the allocation of weight is, within the limits of the discretiongranted, for the initial decision-maker.

An appellate court is not entitled to substitute its own discretion for that of the trial court orchambers judge merely because it would have exercised the original discretion differently: Friends of the Oldman River Society v Canada(Minister of Transport), (SCC), [1992] 1 SCR 3 at 76–77” (at para 62; see also, Rimmer at para 58).

Courts haveemphasized this principle in various ways, including by describing the standard of review as deferential and by commenting that anappellate court will not “lightly” interfere with a discretionary decision. [46] The question to be determined is whether the Chambers judge properly exercised her discretion in appending the drivers’exception to the delay allowed by the Order. VII. ANALYSIS [47] To determine the issue as stated above, I turn first to basic principles and the governing law. A.

The right to strike [48] The ability of union members to take effective job action, including striking in support of collective bargaining, is supported bythe fundamental freedom of association under s. 2(

d) of the Charter: see, Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC4, [2015] 1 SCR 245 [SFL].

[49] Expressive activity in support of job action is also protected under s. 2(d). This was explained in SFL as follows: [58] Moreover, while the right to strike is best analyzed through the lens of freedom of association, expressive activity in the labourcontext is directly related to the Charter-protected right of workers to associate to further common workplace goals under s. 2(

d) of theCharter: [Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3], at para. 38; [Alberta (Information and PrivacyCommissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013] 3 SCR 733], at para. 30.

Strike action “bring[sthe] debate on the labour conditions with an employer into the public realm”: Alberta (Information and Privacy Commissioner), at para.28. … [50] In Alberta (Information and Privacy Commissioner) v United Food and Commercial Workers, Local 401, 2013 SCC 62, [2013]3 SCR 733 [Alberta IPC], the Court explained freedom of expression in a labour context as follows: [29] This Court has long recognized the fundamental importance of freedom of expression in the context of labour disputes:R.W.D.S.U., Local 558 v.

Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 , [2002] 1 S.C.R. 156 (“Pepsi”), at para. 33. InU.F.C.W., Local 1518 v. KMart Canada Ltd., (SCC), [1999] 2 S.C.R. 1083 (“KMart”), Cory J., writing for the Court,held that “[f]or employees, freedom of expression becomes not only an important but an essential component of labour relations”: para. 25(emphasis added). [30] Expressive activity in the labour context is directly related to the Charter protected right of workers to associate to furthercommon workplace goals under s. 2(

d) of the Charter: Ontario (Attorney General) v. Fraser, 2011 SCC 20 , [2011] 2 S.C.R. 3,at para. 38.

As the International Labour Organization observed, “[t]he exercise of freedom of association and collective bargaining isdependent on the maintenance of fundamental civil liberties, in particular, ... freedom of opinion and expression”: Report of the Director-General: Freedom of association in practice: Lessons learned (2008), at para. 34. … [32] Free expression in the labour context can also play a significant role in redressing or alleviating the presumptive imbalancebetween the employer’s economic power and the relative vulnerability of the individual worker: Pepsi, at para. 34.

It is through theirexpressive activities that unions are able to articulate and promote their common interests, and, in the event of a labour dispute, to attemptto persuade the employer. [33] Finally, in the labour context, freedom of expression can enhance broader societal interests. As this Court found in Pepsi, the freeflow of expression by unions and their members during a labour dispute plays an important role in bringing issues relating to labourconditions into the public arena for discussion and debate: paras. 34-35.

As this Court emphasized in Pepsi, free expression provides “anavenue for unions to promote collective bargaining issues as public ones to be played out in civic society, rather than being confined to anarrow realm of individualized economic disputes”: Michael MacNeil, “Unions and the Charter: The Supreme Court of Canada andDemocratic Values” (2003), 10 C.L.E.L.J. 3, at p. 24. B. The right to picket [51] Expressive activity that includes picketing in support of a strike is best understood in the context of s. 2(

b) of the Charter. Thiswas made clear in Pepsi SCC: [32] Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values:freedom of expression, enshrined in s. 2(

b) of the Charter. This Court’s jurisprudence establishes that both primary and secondarypicketing are forms of expression, even when associated with tortious acts: [RWDSU v Dolphin Delivery Ltd., (SCC),[1986] 2 SCR 573], supra. The Court, moreover, has repeatedly reaffirmed the importance of freedom of expression. It is the foundation ofa democratic society (see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Keegstra, (SCC), [1990] 3 S.C.R. 697; R. v.Butler, (SCC), [1992] 1 S.C.R. 452).

The core values which free expression promotes include self-fulfilment,participation in social and political decision making, and the communal exchange of ideas. Free speech protects human dignity and theright to think and reflect freely on one’s circumstances and condition.

It allows a person to speak not only for the sake of expression itself,but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political, andeconomic environment. [52] The Court also explained the nature and effect of picketing as a form of expression and persuasion: [26] The term “picketing” attaches to a wide range of diverse activities and objectives, and allows for innumerable variations.

One texton Canadian labour law hazards this general description of the common themes that define picketing, as well as the diversity this broadterm allows: Ingredients common to the act of picketing in all jurisdictions appear to be the physical presence of persons called pickets, the conveyingof information, and the object of persuasion. The “presence” element may take many forms, from one or two persons, in the vicinity of theentrance of the premises, comparatively indifferent to the outcome of the dispute, to large numbers calculated physically to prevent ingressand egress. . . .

The conveying of information may also take many forms, from the use of handbills, arm bands, placards and sandwichboards to sound trucks, and from the recitation of events to the conveying of exhortative messages. The object of persuasion appears toremain constant, to induce a boycott of the picketed operations by employees, customers, suppliers and others on whom the employer isdependent for the successful operation of his enterprise. (A. W. R. Carrothers, E. E. Palmer and W. B.

Rayner, Collective Bargaining Law in Canada (2nd ed. 1986), at pp. 609-10) [53] The Supreme Court subsequently defined picketing as a “particularly crucial form of expression” in Alberta IPC: [35] Within the labour context, picketing represents a particularly crucial form of expression with strong historical roots. Strikes andpicketlines have been used by Canadian unions to exert economic pressure and bargain with employers for over a century: affidavit of Dr.

Jeffery M. Taylor, A.R., vol. IV, at p. 35. The use of picketlines is an invaluable tool in the economic arsenal of workers in the collectivebargaining process: [Wesley B. Rayner, Canadian Collective Bargaining Law, 2d ed (Markham, Ont: LexisNexis, 2007)] at p. 483. AsJudith McCormack, then Chair of the Ontario Labour Relations Board, explained in Great Atlantic & Pacific Co. of Canada, [1994]O.L.R.B. Rep. March 303: Picketing is ... part of a group of economic sanctions which are considered key to the scheme of collective bargaining as a whole.

Whilesuch sanctions are not frequently resorted to in the overall landscape of collective bargaining, it is axiomatic that the underlying threat ofsuch economic conflict is what drives the vast majority of uneventful negotiations and contract settlements. [para. 35] [36] The effectiveness of picketlines is dependent on the ability of the union to try to convince the public not to cross the picketline anddo business with the employer. Cory J. recognized the significance of the role of public opinion in [U.F.C.W.

Local 1518 v Kmart, (SCC), [1999] 2 SCR 1083], where he observed that “it is often the weight of public opinion which will determine theoutcome of the dispute”: para. 46. In some cases, this goal may be achieved simply by making others aware of the labour dispute. Inothers, however, a union may achieve its goal by putting pressure on those who intend to cross the picketline. The imposition of public oreconomic pressure has come to be accepted as a legitimate price to pay to encourage the parties to resolve their dispute. As McLachlin C.J.and LeBel J. observed in [Pepsi SCC], strikes are not tea parties: para. 90.

This Court has acknowledged that such pressure is permissibleas long as it does not rise to the level of a tortious or criminal act: [Pepsi SCC], at paras. 96 and 101-7. [54] In Potash Corporation of Saskatchewan Mining Limited v Todd, Heinrich and Energy and Chemical Workers Union, Local 922(1987), (SK CA), 53 Sask R 165 (CA) [Todd], Vancise J.A., dissenting in part with respect to the result but not on thispoint, explained: [24] Employees are entitled to use the power of the picket line--a power far greater than mere dissemination of information--to causeeconomic hardship on the employer in order to force him to bargain.

The employer is entitled to continue to operate with supervisory andnon-union personnel, in an attempt to mitigate loss and damage and to prolong and weaken the union’s position; but in neither case doesthis entitlement include the right to breach the law. The arrival by the employer’s supervisory and non-union personnel at the entrance tothe place of operations, to continue operating the employer’s facility, is usually the spark that ignites the confrontation betweenmanagement and labour.

If the employer is successful in continuing to operate, the strike will be prolonged and cause hardship to theemployees; if it is not, the strike will likely force a settlement. As [per] Dickson J., in Canadian Union of Public Employees, Local 963 v.New Brunswick Liquor Corporation, (SCC), [1979] 2 S.C.R. 227 … at p. 241: “The traditional view of the picket line is that it is simply informative. But its real purpose, as recognized by Mr. Justice Limerick, goesbeyond that. Generally, the purpose is to shut down the employer’s operation, or at least to make it difficult to maintain the operation.

Thisis done by dissuading various groups and individuals from having anything to do with the employer. In a heated confrontation, this attemptto discourage extends also to managerial personnel. The employer, by contrast, tries to maintain his operations by using managerialpersonnel to do the work of strikers, by hiring strike-breakers, and by maintaining lines of communication for incoming supplies andservices, and outgoing products.

In private sector labour relations, these efforts on both sides are typically legal and an integral part of theeconomic conflict.” [55] Based on the foregoing, any restraint of picketing must take into account several important considerations: picketing is anessential tool in the economic arsenal of workers in the collective bargaining process that is underpinned by the Charter rights mentionedabove, and there are significant worker-employer and third party dynamics at the picket line in each situation. [56] In Pepsi SCC, at paragraph 64, the Supreme Court endorsed the proposition of Cameron J.A. for the majority in this Court that,“[g]enerally speaking, picketing constitutes an exercise of the fundamental freedom of expression which can only be circumscribed bylaws, whether statutory, regulatory, or common, that accord with the constitutional norms of the Charter of Rights and Freedoms”(Pepsi CA at para 23).

Pepsi CA was also clear that the court may intervene only to keep the peace or to prevent unlawful acts (see para27). [57] The above comments as to when a court can intervene to restrain picketing points to the ongoing tension in most labourinjunction applications between the right of a union to picket and the right of the employer not to be subjected to wrongful actions. [58] The jurisprudence is clear that in determining applications for an injunction to restrain picketing, the court must protect both theowner’s common law right to use its property while also protecting the Charter rights of union members to freedom of expression andassociation.

In Pepsi SCC, the Supreme Court endorsed the wrongful action approach as the best way to balance the union members’freedom of expression and association rights against the rights of employers and those affiliated with them. This approach emanates fromthe principle that Charter rights are not absolute and must be balanced against other rights: R v Crawford, (SCC), [1995]1 SCR 858 at para 34.

See also: SWA Vancouver LP v Unite Here, Local 40, 2019 BCSC 1806 at para 17, 60 CCLT (4th) 298 [SWAVancouver]. [59] In Pepsi SCC, the Supreme Court held that picketing is a legal and protected form of free expression unless it involveswrongful action such as tortious or criminal conduct: [103] At this point we may usefully review what is caught by the rule that all picketing is legal absent tortious or criminal conduct. Theanswer is, a great deal.

Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation,defamation or misrepresentation will be impermissible, regardless of where it occurs. Specific torts known to the law will catch most ofthe situations which are liable to take place in a labour dispute. In particular, the breadth of the torts of nuisance and defamation shouldpermit control of most coercive picketing. Known torts will also protect property interests. They will not allow for intimidation, they willprotect free access to private premises and thereby protect the right to use one’s property.

Finally, rights arising out of contracts or businessrelationships also receive basic protection through the tort of inducing breach of contract. [60] Earlier in Pepsi SCC, the Court had explained the crux of the wrongful action approach: [76] The wrongful action approach, by contrast, focuses on the character and effects of the activity, as opposed to its location. It gets at

the heart of why picketing may be limited. As discussed, the umbrella of picketing covers a diverse range of behaviours, tactics andconsequences that often have little to do with location. Where picketing occurs has little to do with whether it is peaceful and highlyrespectful of the rights of others on the one hand, or violent and disrespectful of the rights of others on the other hand.

By focussing on thecharacter and effect of expression rather than its location, the wrongful action approach offers a rational test for limiting picketing, not anarbitrary one. [77] Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation ormisrepresentation, will be impermissible, regardless of where it occurs. [61] The Court in Pepsi SCC held that the wrongful action approach was appropriate for a number of reasons: it noted that theapproach avoided distinctions between labour and non-labour disputes, as a broad variety of other groups may also wish to associate andexpress themselves in support of what they regard as important stances (see paras 80–82); it held that the wrongful action approach wasflexible enough to preserve the interests of various parties on the basis of rational limits focused on the character of their activity (seeparas 73–76); it stated that the approach avoided excessively protecting economic interests (at para 72); and, most importantly, itdetermined that the wrongful action approach conformed with the Charter and appropriately protected important rights, such as the rightto free expression of employees engaged in picketing (at paras 67–70).

The wrongful action approach allows courts to intervene and“preserve the interests of third parties or the struck employer where picketing activity crosses the line and becomes tortious or criminal innature” (at para 73). [62] An example of such tortious activity is a complete blockade of the employer’s premises by picketing. Such action constitutesthe tort of nuisance.

See: Hudson Bay Mining & Smelting Co., Limited v Dumas et al, 2014 MBCA 6 at para 69, 370 DLR (4th) 237. [63] However, there is a continuum of picketing activity short of a blockade that must, in every case, be assessed as to where theline of wrongful action is to be drawn. This requires a balancing of rights as observed in Pepsi SCC: [74] In

summary, a wrongful action approach to picketing allows for a proper balance between traditional common law rights andCharter values, and falls in line with the core principles of the collective bargaining system put in place in this country in the yearsfollowing the Second World War. [64] A reasonable balance of union members’ rights and the employer’s rights can be considered to involve both the employerhaving access to its property while, at the same time, allowing for a measure of inconvenience and economic harm to the employer andaffiliated third parties while picketers convey their message: Sobeys v UFCW, Local 175, 2013 ONSC 1207 at para 50, [Sobeys]. [65] It has been argued by the Union that the significance of tortious conduct in the balancing of union and employer rights as partof the wrongful action approach set forth in Pepsi SCC has been attenuated by A.I.

Enterprises Ltd. v Bram Enterprises Ltd., 2014 SCC12, [2014] 1 SCR 177. I disagree. This was a tort case that contained an obiter reference to the interplay of tortious conduct and labourrights. I do not read it as changing the reliance on the wrongful action approach to picketing set out in Pepsi SCC and the balancingrequired pursuant to that approach. C.

Consideration of freedom of expression in the injunction analysis [66] Courts consider union members’ exercise of the right to freedom of expression at various points of the analysis where picketingis sought to be restrained by injunction. [67] The right to free expression is a relevant consideration as to whether delay by union members of persons crossing the picketconstitutes tortious or unlawful conduct by them: Ideal Railings Ltd. v Laborer’s International Union of North America, 2013 ONSC 701at para 55 [Ideal Railings]; Toromont Cat v International Union of Operating Engineers, Local 904, 2008 NLTD 22 at para 43, 837 APR136 [Toromont].

This inquiry often depends on whether the purpose of the union’s actions is found to have been the exercise of expressionor intimidation of third parties from associating with the employer (see Ideal Railings at para 56). [68] Courts also consider the union’s right to expression and employer and third party rights as part of the balance of conveniencetest in the injunction analysis: SWA Vancouver at para 99; Toromont at para 43; and Metro Ontario Inc. v Teamsters Local 938, [2019] OJNo 2060 (QL) (Ont Sup Ct) at para 26 [Metro Ontario].

The potential infringement of the right to freedom of expression is to beconsidered as part of the balance of convenience prong of the test stated in RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 at 334.

See: Vancouver Aquarium Marine Science Centre v Charbonneau, 2017 BCCA 395 atparas 77–78, [2018] 3 WWR 317, quoting Provincial Rental Housing Corporation v Hall, 2005 BCCA 36 at para 58, 250 DLR (4th) 112. [69] Courts have addressed the right to freedom of expression when dealing with the terms of the injunction to be issued: Vale vUSWA Local 6500 et al, 2010 ONSC 1774 at para 34 [Vale]; and Formosa at para 64.

In that instance, the question becomes whether theterms of the injunction undermine the union’s right to freedom of expression: FortisBC Inc. v International Brotherhood of ElectricalWorkers, Local 21, 2013 BCSC 2330 at paras 10 and 17. From this perspective, consideration of the right to freedom of expression takesplace as part of the balancing of union member, employer and third party rights. D. Terms involving delaying entry [70] The employer is entitled at common law to have access to its property during a labour dispute (Pepsi SCC at para 73).

As notedabove, it is common ground that a complete blockade of an employer’s premises by picketing is unlawful. Picketing that obstructs lawfulentry to and exit from premises constitutes a nuisance (Aramark Canada Ltd. v Keating, [2002] OJ No 3505 (QL) (Ont Sup Ct) atpara 34). [71] However, as part of the balancing process of the wrongful action approach, courts often allow picketers to delay ingress andegress of the employer’s property for the purpose of communicating their message during a strike.

Terms involving delay can be seen asboth permissive of a certain time for the communication of the union’s message as well as restrictive of its general right to freedom of

expression. [72] The issue of delayed entry was addressed by Gray J. in Sobeys: [16] In the context of a lawful strike, the employees have a constitutional right to express their views through picketing, and tocommunicate information about the issues to those who wish to cross the picket line. The right to communicate information would bemeaningless if the picketers were unable to have an opportunity to communicate their message.

Thus, it is reasonable to allow some delayin getting access so that the message can be adequately communicated. [73] However, Gray J. emphasized that the decision to allow some delay is discretionary and may not be accommodated in everycase: [47] That is not to say that delay can be accommodated in every case. There will be cases where the nature of the employer’s business,and/or the sheer volume of traffic will not accommodate any delay: see, for example, Ontario Power Generation Inc. v. Society of EnergyProfessionals, [2005] O.J. No. 5817 (S.C.J.).

As another example, to permit any delay where 18,000 people are attempting to attend ahockey game would not be tolerated, since mass disruption would otherwise occur: see Ogden Entertainment Services v. UnitedSteelworkers of America, Local 440 (1998), (ON CA), 38 O.R. (3d) 448 (C.A.). [48] Needless to say, the discretion of the Court to allow some delay is unlikely to be exercised in the picketers’ favour if there is non-observance of an order permitting some delay: see Industrial Hardwood, at para. 40.

Likewise, discretion will likely be exercised contraryto the interests of the picketers if there is violence or other misbehaviour. [74] The approach to terms allowing delay has not been uniform across Canada. [75] In Saskatchewan, courts have allowed picketers to delay access to the employer’s property. In Cameco Corporation v Laliberte(10 February 2005) Saskatoon, QB 247 of 2005 (Sask), Klebuc J. (as he then was) granted an injunction restraining the defendants fromblocking and obstructing the free flow of traffic to or from the Key Lake uranium mill.

The order was upheld in Laliberte v CamecoCorporation (4 July 2005) Docket No 1098 (Sask CA).

In Coca-Cola Bottling Company v Retail, Wholesale and Department Store UnionLocal 558 (10 July 2009) Saskatoon, QBG 868 of 2009 (Sask), the injunction provided for a delay of two minutes per person in every24-hour period for the purpose of communicating information. [76] At paragraph 32 of the Decision, the Chambers judge made reference to another unreported case, CNR v CAW – Canada Local1000 (12 March 2004) Regina, QBG 476 of 2004 (Sask), [CNR], where the order allowed for a delay of no more than two minutes or untilthe driver of the motor vehicle indicated a desire to proceed, whichever came first. [77] In Todd, this Court set aside the injunction but commented on the delay disclosed in the affidavit material.

Justice Sherstobitoffnoted at paragraph 119 that the employer had failed to prove that there had been any significant obstruction to its ability to access theproperty since everyone who sought access at the picket line was able to do so with only a few instances of delays of a few minutes.

Thedelay ranged from a few minutes to a thirty-minute period and was not “any real impediment to the respondent in the conduct of itsbusiness”. [78] In contrast to the Saskatchewan courts, the courts in British Columbia have overwhelmingly rejected the view that picketersengaged in a lawful strike have the right to temporarily obstruct ingress or egress from the employer’s premises. They have, for the mostpart, declined to accommodate any delay or interference with ingress or egress from property. This approach emanates from Rogers CableT.V.

Ltd. v I.B.E.W., Local 230 (1994), (BC CA), 111 DLR (4th) 535 (BCCA) at para 10 [RogersCable],which held that there is no right of picketers to delay someone from accessing or exiting the employer’s premises. [79] Most British Columbia courts have followed the approach in Rogers Cable: see, Cara Operations Ltd. v HRCU & BU, LocalNo 40, 2004 BCSC 1753 at para 7; Telus Communications Inc. v Telecommunications Workers Union, 2005 BCSC 1162 at para 14, 48BCLR (4th) 161; Canadian National Railway Company v United Truckers Association of British Columbia, 2014 BCSC 487 at para 15;Cascade Aerospace Inc. v Unifor (Local 114), 2014 BCSC 1211 at para 33 [Cascade]; SWA Vancouver at para 27; Air Canada vCanadian Auto Workers Union, 2011 BCSC 888; and Canadian Pacific Rail Company v Teamsters Canada Rail Conference, 2007 BCSC2020 at para 25. [80] In some instances, however, British Columbia courts have allowed a reasonable delay to communicate relevant informationdepending on the circumstances (see Cascade at para 17). [81] In Norampac Inc. v CEP, Local 1129, 2004 BCSC 1805 [Norampac], the court allowed picketers to delay those seeking toleave the premises by approximately two minutes, seeing this as “a fair balance to place a reasonable limit on the amount of time that therecan be physical impediment to ingress and egress while the right to information dissemination or free speech is being exercised” (at para10).

More recently, the British Columbia Supreme Court in Gateway Casinos & Entertainment Limited v BCGEU, 2018 BCSC 1700, 37CPC (8th) 369 [Gateway Casinos] allowed picketers to walk slowly across the driveways accessing the parking lot of the casino they werepicketing.

The court found that the ten-second delay caused by their actions amounted “to nothing more than the everyday inconvenienceexperienced by motorists being required to stop for random pedestrians walking across a driveway” (at para 35). [82] Outside of British Columbia, courts have frequently permitted reasonable delay to allow picketers to exercise their right toexpression. Ontario courts are an example of this approach. [83] Many of the Ontario cases are grounded on the decision of Industrial Hardwood Products

(1996) Ltd. v International Woodand Allied Workers of Canada, Local 2693 (2001), (ON CA), 52 OR (3d) 694 (Ont CA) [IndustrialHardwood]. In that case, the Court helpfully stated at paragraph 23 that, where picketing involved no property damage or personal injury,but did involve obstruction of lawful entry or exit, the relevant considerations include the degree of obstruction, its duration on eachoccasion and the length of time the obstruction has occurred. [84] In Cancoil Thermal Corp. v Abbott, (Ont Sup Ct) [Cancoil], Hackland J. outlined why some delay to those

seeking entrance or exit from premises being picketed was permissible (at 13): What these decisions illustrate is that picketing, as a constitutionally protected manifestation of freedom of expression, must be respectedand promoted, not simply tolerated or restricted in deference to property rights, until the line of tortious or criminal activity is clearlycrossed. It is inherent in the nature and purpose of picketing as an activity that some delay, inconvenience and perhaps frustration will beexperienced by the employer.

Its degree and duration and its context are fundamentally important as Goudge, J.A. has pointed out. In that case, the fifteen-minute delay created by picketers was found not sufficient to grant an injunction. [85] Generally speaking, delay is limited to the amount of time reasonably necessary for the picketers to effectively communicatetheir position. In Industrial Hardwood, Goudge J.A. concluded at paragraph 25 that delays in the range of half-an-hour were considerablylonger than reasonably necessary for the picketers to effectively communicate their position.

See also: Brookfield Properties v Hoath et al,2010 ONSC 6187 at para 36, 5 CPC (7th) 393 [Brookfield]. [86] In some cases, the time-limited delay was subject to the recipient of the message expressing a desire to move on. In other cases,the injunction allowed a time-limited delay without any qualification as to the recipient’s desire to move on. In Brookfield, the courtconcluded that an order allowing the union to delay vehicles for up to ten minutes “fairly recognizes the expressive rights of the Unionduring a labour dispute” (at para 61).

Justice Brown did not address whether recipients were free to move on before the ten minuteselapsed. [87] Other cases where the courts have allowed picketers to delay ingress and egress for a short period of time include: Bank-StroxRenovation Inc. v Laborers’ International Union of North America, Local 183, 2020 ONSC 4911 at para 66 (ten-minute delay permittedbut a vehicle could only be delayed once a day); Bombardier Transportation Canada Inc. v Unifor et al, 2014 ONSC 4635 at paras 33–34(ten-minute delay for those entering the premises and five-minute delay for those exiting the premises allowed); and Vale at para 3 (12- or15-minute delay to those entering premises, depending on the time of day). [88] Some courts have also addressed the cumulative effect of delays to individual vehicles by setting limits on the maximumpermissible cumulative delay; see Bell Canada v Kennedy, at para 3 (Ont Sup Ct) (previous order providing formaximum 80-minute delay).

In Metro Ontario at paragraphs 24–25, the court concluded that communication over a period of four to fiveminutes would, in most cases, be sufficient for the picketer to convey the information that was necessary, and varied the interim order toextend the period of time for communication of information from two minutes to five minutes. At paragraph 27, the court also extendedthe period of cumulative delay from 5 minutes to 12 minutes. [89] The delay permitted and other allowable conditions of an order are case specific.

In Ideal Railings, the court recognized thatthe nature of court orders is heavily shaped by the circumstances of the picket and the employer’s business: [64] [Laborers’ International Union of North America’s] freedom of expression right, set out in s. 2 of the Charter to communicate withmembers of the public during the ingress and egress of vehicles from the Ideal Facility and the community’s interest in the protection oftheir Charter rights is an important right which needs to be respected and only interfered with to the least extent possible. [65] Ideal’s right to freely access to its property to carry on business, the safety of its employees, customers, suppliers and others whoseek to go in or leave the Ideal Facility and the community’s interest in upholding the law is an important right that needs to be respectedand only interfered with to the least extent possible. [66] As in many cases, a balance between these two competing rights involves establishing a protocol which respects both rights andinterferes with both rights to the least extent possible.

Crafting a protocol is more of an art than science. The court takes into account allrelevant factors such as the type of business, what products are being moved in, whether a traffic hazard would be created, the number ofvehicles which go in and out of the property, the past conduct of the parties and any other relevant factors. [90] In Ontario, the majority of injunctions restricting picketing allow for a maximum delay without any qualification regarding therecipient’s wish to move on. [91] Other jurisdictions have allowed delay as the Ontario courts have.

For example, in Toromont, the Supreme Court ofNewfoundland and Labrador allowed picketers to effect “a brief and temporary interruption of a person’s or vehicle’s progress for thepurpose of communicating the fact that a strike is in progress and to request that the person concerned respect the defendant’s picket line”(at para 60). The court’s reasoning resembled the approach adopted in recent Ontario cases: [49] … In our system of labour relations, the use of the picket line, properly employed, is recognized as an important aspect of aunion’s labour activity.

It must be recognized, therefore, that picketing activity has social utility and cannot be said, simply because one ofits incidental effects may be to inconvenience or minimally interfere with others, to be ipso facto arbitrary or unjustifiable.

This also leadsto the conclusion that a court ought to be wary of issuing injunctive orders where the effect of them might be to cut down the properexercise of an otherwise legitimate social activity even though it might be inconvenient to some. … [52] I believe that an attempt should be made to craft an order that more closely balances the interests of the parties in this case.

Ittherefore does not follow from the conclusion that the actions of the defendant prima facie amount to a nuisance, that the plaintiff isentitled to an injunction restraining any activity that might incidentally constitute any interference with the use and occupation of theplaintiff’s land. In principle, the plaintiff should only be entitled to protection against unreasonable interference with his interests. In thiscase I have concluded that the defendant’s activities, insofar as they create a “captive audience” (as Orsborn J. called it in [St.

John’sInternational Airport Authority Inc. v Public Service Alliance of Canada; Union of Canadian Transport Employees, Local 90916, 200301T No 2254 (unreported) (NLSCTD)]), and extend beyond what was necessary to have an opportunity to persuade persons not to crossthe picket line (as opposed to unreasonably preventing them without their consent from doing so for an extended period beyond what wasnecessary to get their message out), amounted to an unreasonable interference.

By the same token, I have also concluded that short andtemporary interference with access to the property to enable the Union to express its message and to try peacefully to persuade persons not

to cross the picket line and in so doing, thereby exercise their Charter right of free expression, is not an unreasonable interference with theuse of the plaintiff’s land, especially given the Charter values at stake. (Emphasis in original) [92] Following this logic, Green C.J.T.D., as he then was, granted an injunction preventing unlawful obstruction but with the caveatthat “this order does not extend to activity that can reasonably be characterized as a brief and temporary interruption of a person’s orvehicle’s progress for the purpose of communicating the fact that a strike is in progress and to request that the person concerned respectthe defendant’s picket line” (at para 60). [93] Most of the above cases do not expressly grant an entitlement to delay recipients who express a desire to move on.

However,injunctions containing an express time limit for delay without a term allowing the recipient of the communication to move on imply thatrecipients can be physically impeded while the picketers exercise their right to expression. [94] There appears to be consensus that if and when a specific delay is allowed, that delay should reflect a minimal infringement ofthe union members’ right to expression and, in the circumstances of the case, provide a reasonable time to communicate the union’smessage (Industrial Hardwood at para 25; Brookfield at para 36).

It must be remembered that the right to any delay is grounded on thelaw’s recognition of a union member’s right to communicate the message germane to the labour dispute. The law does not recognize afreestanding entitlement of picketers at common law to delay access to property. [95] As a result, what is a reasonable time to communicate the message will depend on the circumstances.

Based on a review of thecases mentioned above, and without setting out an exhaustive list, some of the factors to be considered in determining the appropriatedelay, if any, are: the nature of the business; its location; the volume and nature of the traffic crossing the picket line; the nature of theinconvenience caused; the number of people affected; the time required for the union to communicate its message; the character and effectof the message; and the presence or absence of intimidation or potential for violence of persons from both sides of the dispute. [96] Given the foregoing, whether delay can or should be accommodated, the duration of the delay and any other terms of theinjunction is to be decided on the facts of every case.

The essence of the court’s task in determining the terms of an injunction, if any, isthe balancing of the employer’s rights and the union’s rights under the wrongful action approach. Such a determination is discretionary. [97] It can also be fairly said that the delay which might be allowed in any case does not emanate from a constitutional right of theunion to delay ingress and egress to the employer’s property as a result of picketing. None of the cases have gone so far as to say that theunion members’ s. 2(

b) Charter rights require the imposition of a delay. As noted in Sobeys, “any attempt to constitutionalize the right todelay or disrupt people seeking access to property in an [sic] labour dispute is highly problematic”. In that case, the court concluded itcould “be accommodated through the normal discretion the Court has in formulating an appropriate remedy” (at para 43). [98] I agree with this comment. A constitutional right to delay would gut the wrongful action approach in Pepsi SCC and thebalancing required thereunder. E.

Interests of third parties [99] On its face, the drivers’ exception allowed any person not wishing to hear the communication of the Union members to movethrough the picket line without delay. In many cases, that person was a third party who was not an employee of CCRL. It may be arguedthat anyone trying to cross the picket line is not neutral to the labour dispute.

However, the law, as it has developed, has taken third partyrights into consideration in the balancing that takes place pursuant to the wrongful action approach. [100] The Court in Pepsi SCC stated that neutral third parties should “be protected from wrongful conduct and that labour disputes[should] be prevented from unduly spreading” (at para 92, citing RWDSU v Dolphin Delivery Ltd., (SCC), [1986] 2 SCR573 at 590–591).

That said, the Court observed that while innocent third parties should be shielded from “undue” harm, third parties areanticipated to experience some economic harm as “a necessary cost of resolving industrial conflict” (at para 45). [101] I conclude from the foregoing that third parties’ rights and interests are a factor in the balancing analysis as outlined in PepsiSCC.

The weight to be given to that factor will vary from case to case. [102] Third party interests, as will be seen, can also inform the amount of delay allowed and whether there will be a proviso that theperson crossing the picket line who is the object of the union’s communication need not listen. [103] With respect to the interests of third parties, the Court in Pepsi SCC said: [44] Secondly, although McIntyre J.’s comments reflect a concern with the interests of third parties to labour disputes who may incurcollateral damage, they should not be read as suggesting that third parties should be completely insulated from economic harm arisingfrom labour conflict.

As Cory J. noted in [U.F.C.W. Local 1518 v Kmart Canada Ltd., (SCC), [1999] 2 SCR 1083], theobjective of the restraint on picketing in [RWDSU v Dolphin Delivery Ltd., (SCC), [1986] 2 SCR 573] was to ensure thatthird parties did “not suffer unduly from the labour dispute over which it has no control” (para. 35). Therefore, third parties are to beprotected from undue suffering, not insulated entirely from the repercussions of labour conflict. Indeed, the latter objective would beunattainable.

Even primary picketing frequently imposes costs, often substantial, on third parties to the dispute, through stoppages insupplies or the loss of the primary employer as a customer (see [A.W.R. Carrothers, E.E. Palmer & W.B. Rayner, Collective BargainingLaw in Canada, 2d ed (Toronto: Butterworths, 1986)] at p. 675). Indeed, labour disputes in important sectors of the economy mayseriously affect a whole town or region, even the nation itself. As McIntyre J. recognized in the above quote, the social cost of a labourdispute is often great.

Yet this impact on third parties and the public has never rendered primary picketing illegal per se at common law toprotect the interests of third parties. [45] So we are left with this: innocent third parties should be shielded from “undue” harm. This brings us to the question that lies at theheart of this appeal. How do we judge when the detriment suffered by a third party to a labour dispute is “undue”, warranting the

intervention of the common law? At this stage, it suffices to note that the protection of innocent third parties from the economic fallout oflabour disputes, while a compelling consideration, is not absolute. Some economic harm to third parties is anticipated by our labourrelations system as a necessary cost of resolving industrial conflict. (Emphasis in original) [104] Where the injunction accommodates delay, that delay, as it affects third parties, is primarily understood as the anticipated“economic harm” to parties who choose to do business with the employer during a labour dispute.

Although third parties are to beinsulated from undue economic harm, total insulation is not possible. [105] Based on Pepsi SCC, it is clear that those seeking to cross picket lines can be expected to endure some economic hardship.However, the fact that economic hardship will be suffered by third parties will not be a bar to crafting an injunction that properly balancesthe rights of the union and the rights of the employer and those of third parties.

The allowable hardship circumscribed by whether it is“undue” will be a question that is answered on the facts and circumstances of each case. [106] It is also important to note that, although the economic rights of third parties are relevant, they are not Charter rights per se.Section 7 of the Charter does not protect economic rights or a right to a job: Irwin Toy Ltd. v Quebec (Attorney General), (SCC), [1989] 1 SCR 927; Walker v Prince Edward Island, (SCC), [1995] 2 SCR 407; and Schmidt v Canada (AttorneyGeneral), 2018 FCA 55.

On that basis, the right to earn a living insofar as it is impeded by the delay of a picket line will not, on its own,provide a justification for declining to allow delay or imposing a drivers’ exception provision. [107] However, Industrial Hardwood Products

(1996) Ltd. v International Wood and Allied Workers of Canada, Local 2693, [2000]OJ No 536 (QL) (Ont Sup Ct), a decision resulting from an earlier motion for an interlocutory injunction involving the same parties as inIndustrial Hardwood, identifies another possible Charter basis for imposing a drivers’ exception provision; the s. 7 and s. 9 Charter rightsof the listener, i.e., the right to security of the person and the right to not be arbitrarily detained.

The court quoted Ogden EntertainmentServices v U.S.W.A., Local 440 (1998), (ON SC), 159 DLR (4th) 340 at 345–​346 (Ont Ct J (Gen Div)) [Ogden], asfollows: The issue in this case is whether the right to picket and communicate includes the right to obstruct traffic. In my view, it does not. It seemsto me that quite apart from the application of common sense, the right of an individual to move freely and without obstruction is a value asancient as literature and the common law.

The right seems to me to be embraced by Sections 7 [and 9] of the Charter of Rights andFreedoms, including the right to security of the person and the right to not be arbitrarily detained.

Should the Charter be found to apply tothese circumstances, then what has been occurring at the Corel Centre is the arbitrary detention of innocent patrons who have paidsignificant sums of money to have an evening of enjoyment. … [108] Although Ogden was decided several years before Pepsi SCC, the court in Ogden accepted that the union members had aconstitutional right to expression by picketing that included the right to communicate their message.

However, the s. 7 and 9 Charterrights of the listener, i.e., the right to security of the person and the right to not be arbitrarily detained, have not been a factor subsequentlyrelied on by the courts either on the issue of the duration and terms of the delay or as a justification for imposing a provision that allowspotential listeners to decline the message and proceed. [109] Generally, the right of a person to decline to listen to a communication is supported by a significant line of authority both in thelabour relations context and otherwise.

This line of authority provides, in my view, a principled basis to impose, where necessary, adrivers’ exception provision. [110] A number of cases outside of the labour relations context have expressly rejected the proposition that anyone can be forced tolisten to a message. These cases emanate primarily from litigation regarding the exercise of freedom of expression of those picketingabortion clinics. An example of this is R v Spratt, 2008 BCCA 340, 298 DLR (4th) 317 [Spratt], involving the prosecution of an anti-abortion protester.

The court said: [82] Second, the respondent says, the unwilling viewer or listener cannot avoid exposure to the protest outside the clinic because theymust enter the clinic from the area in which the protests occur. Women entering the clinic should not be [held] hostage to the message theprotesters wish to send them. Relying on the comments of Adams J. in Ontario (A.G.) v. Dieleman (1994) (ON SC),117 D.L.R. (4th) 449 (Ont. Gen. Div.) (“Dieleman”) the respondent says that the right of freedom of expression does not include the rightto a captive audience.

In Dieleman, Adams J. said this at 723-724: It has also been held that freedom of expression assumes an ability in the listener not to listen but to turn away if that is her wish.The Charter does not guarantee an audience and, thus, a constitutional right to listen must embrace a correlative right not to listen. InCommittee for the Commonwealth of Canada v. Canada [ (SCC), [1991] 1 SCR 139], at pp. 430-1, L’Heureux-Dubé J.,in considering the access of would-be speakers to an airport terminal, dealt with the concern that such access could result in exposing“captive viewers or listeners” to unwanted messages.

In this respect, she reproduced and approved the following excerpt from the reasonsof Douglas J. in Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) at pp. 306-7: “[I]f we are to turn a bus or a streetcar into either a newspaper or a park, we take great liberties with people who because of necessitybecome commuters and at the same time captive viewers or listeners. “In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks theconstitutional rights of the commuters.

While [a] petitioner clearly has a right to express his views to those who wish to listen, he has noright to force his message upon an audience incapable of declining to receive it.

In my view the right of the commuters to be free fromforced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for thedissemination of ideas upon this captive audience.” (Emphasis by Adams J.) The principle behind a constitutional aversion to “captive audiences” is that forced listening “destroys and denies, practically andsymbolically, that unfettered interplay and competition among ideas which is the assumed ambient of the communication freedoms”: seeBlack Jr., “He Cannot Choose but Hear: The Plight of the Captive Auditor” (1953), 53 Columbia L.

Rev. 960 at p. 967. Free speech,

accordingly, does not include a right to have one’s message listened to. In fact, an important justification for permitting people to speakfreely is that those to whom the message is offensive may simply “avert their eyes” or walk away. Where this is not possible, one of thefundamental assumptions supporting freedom of expression is brought into question. ... [83] In Hill v.

Colorado, supra, Justice Stevens said this at 716: The right to free speech, of course, includes the right to attempt to persuade others to change their views, and may not be curtailed simplybecause the speaker’s message may be offensive to his audience. But the protection afforded to offensive messages does not alwaysembrace offensive speech that is so intrusive that the unwilling audience cannot avoid it.

Frisby v Schultz, 487 US 474, 487 (1988).Indeed, “[i]t may not be the content of the speech, as much as the deliberate ‘verbal or visual assault,’ that justifiesproscription.” Erznoznik v Jacksonville, 422 US 205, 210-211, n. 6 (1975) (citation and brackets omitted).

Even in a public forum, one ofthe reasons we tolerate a protester’s right to wear a jacket expressing his opposition to government policy in vulgar language is becauseoffended viewers can “effectively avoid further bombardment of their sensibilities simply by averting their eyes.” Cohen v California, 403US 15, 21 (1971). [84] The appellants argue that the clinic doors are where they find those to whom they wish to give their message, and that this is thelast opportunity that they might have to persuade pregnant women that their choice to abort is wrong.

That may be so, but I agree withJustices Adams and Stevens – the protesters are not entitled to a captive audience. Those receiving the message should be free to avoid themessage if they so choose. See also: Committee for the Commonwealth of Canada v Canada, (SCC), [1991] 1 SCR 139 at 204–205 (perL’Heureux-Dubé J.) [Commonwealth of Canada]. [111] Pointedly, the court noted that requiring women entering the abortion clinic to listen would be tantamount to making them a“captive audience” (at para 84), even though the women were free to walk away from the clinic.

Likewise, persons trying to cross thepicket line are free to withdraw but requiring them to listen might well make them a captive audience as well. [112] In Canadian Centre for Bio-Ethical Reform v Grande Prairie (City), 2016 ABQB 734 at para 68, [2017] 4 WWR 182 [Bio-Ethical Reform QB], aff’d 2018 ABCA 154, [2018] 6 WWR 463 [Bio-Ethical Reform CA], the court was dealing with the refusal by a cityto allow a non-profit organization that disseminated pro-life and anti-abortion literature to the public to post an advertisement on theexterior of city buses.

The court found the freedom of expression was not absolute and concerned both the communicant and recipient ofthe expression: [55] Yet freedom of expression is not absolute. Certain content, such as hate speech, is not protected because it does not promote theprinciples underlying the freedom of expression guarantee.

Dickson CJ, Lamer and Wilson JJ summarized these principles at para 53 ofIrwin Toy [ (SCC), [1989] 1 SCR 927]: freedom of expression is related to 1) the attainment of truth, 2) the fostering ofparticipation in social and political decision-making, and 3) the cultivation of individual self-fulfilment and flourishing in a welcomingenvironment “not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed.” [56] These comments suggest that the Charter guarantee of freedom of expression is meant to protect not only those who wish toexpress themselves, but also those who are the recipients of the expression. … (Emphasis added) [113] In R v Breeden, 2009 BCCA 463, 248 CCC (3d) 317 [Breeden], the accused was picketing a courthouse and a municipal hallwith signs a

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