THE EMPLOYERS' EDGE
Employers may be Required to Endure Reasonable Delay due to Picketing when Entering and Exiting their Property
The Ontario Superior Court of Justice recently held that when it comes to picketing-induced delays, “some inconvenience to the employer is permissible”. This decision lies in contrast with previous jurisprudence which suggested that in most cases, no delay was tolerable. According to the court, the older approaches to the issue of picketing-induced delay “are no longer sustainable”.
The plaintiff, Sobeys Inc., was a large retailer of food products with numerous retail outlets and warehouses in Milton, Whitby and Vaughan. The defendant union, UFCW Local 175, had bargaining rights for Sobeys employees at the Milton warehouse. The UFCW did not have bargaining rights for the employees at Whitby and Vaughan. The CAW had bargaining rights at Whitby, with the Vaughan warehouse remaining non-unionized.
The UFCW commenced a legal strike involving picketing at the Milton and Whitby warehouses. While the picketing was for the most part peaceful, it had the effect of blocking entry to and exit from Sobeys’ premises for long periods. In some instances, the delays lasted from 90 minutes to up to 8 hours, essentially rendering those warehouses non-operational. Since many of the goods sold by the employer were perishable, any significant delays could have been quite serious.
The employer first sought assistance from the police for help with accessing their property. The police, as per their policy on picketing, declined to assist since the picketing was taking place on public property, was peaceful and there had been no damage to Sobeys’ property.
Next, Sobeys sought injunctive relief, initially requesting an order requiring access to its premises with no delay whatsoever, but later altering its request to allow delays within a range “from 15 minutes to one minute (subject to overall maximum delays for vehicles in a line-up) depending on the location, purpose, and time of entry and exit, and no delays for emergency vehicles, fuel trucks and security personnel.”
The court conceded that peaceful picketing is a form of expression and is afforded constitutional protection, but that in the context of a lawful strike, picketing has a broader objective than simply expression, stating “A picket line that is merely expressive, without more will do little to cause disruption to the employer’s business… Obviously, if the employer is able to carry on business without disruption, any strike will be far less effective.” It is not surprising, then, that unions would attempt to delay entry to Sobeys’ property.
The court acknowledged that situations where access to one’s property is deprived constitute a nuisance and that injunctive relief is the appropriate remedy. However, the court when on to distinguish between a homeowner who is denied access to her property and a business not allowed access to its property. In the former situation, an injunction would immediately be ordered, while in the latter situation, the court must be sensitive to the interests of both parties, who are involved in an economic struggle, before determining the appropriate remedial order.
As Gray J put it, “To permit the employer unfettered access to its property, without any delay, would swing the pendulum too far in one direction. However, to permit delays that are extreme would swing the pendulum too far in the other direction.”
In the end, the court agreed that the employer’s proposal, above, was reasonable and granted an injunction according to those terms.
Employers should take away the following points from this decision:
In the context of a strike, an employer who seeks access to its property may be required to entertain a reasonable amount of inconvenience;
Notwithstanding the previous point, there are some instances where the nature of the business will not allow for any delay (i.e., where a business may otherwise have to be shut down and where there is potential for harm to the public);
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;
If the picketing is violent or causes damage to the employer’s property, the court is less likely to permit delays;
If the picketing is purely secondary (at a location where the picketed employer has no relationship with the striking trade union), there will be less toleration of delay; and,
Secondary picketing should remain purely informational and without its coercive elements.
The lawyers at CCPartners have extensive experience assisting employers with strike activity and representing employers in injunctive proceedings to restrain unlawful strike conduct.
Please Note: This blog has been prepared as an informational service for our clients and other interested parties. It is not intended to constitute legal advice, a complete statement of the law or opinion on any subject. Although we endeavour to ensure the accuracy of the content, no one should act upon the information provided without a thorough examination of the law after the facts of a specific situation are fully considered.