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Published online by Cambridge University Press: 18 July 2014
In this paper, we investigate the institutional interdependence between courts and police in the governance of picketing. The analysis contributes insight into how economic and security rights are balanced against political and civil rights in the oblique affirmation of a grounding of authority which is arguably more potent because of the indirectness of its everyday construction. We proceed by deriving the concept “judgement by deferral” from current literature on governance. We apply this to an investigation of how courts evaluate injunction claims in cases involving picketing and how police responsibilities are understood in these cases. We then examine police perception of their role in the governance of picketing and demonstrate how both the courts and police engage in deferral practices to avoid hard decisions. Finally, we show how these practices comprise a systemic approach to the governance of picketing, which can nonetheless break down in its application. Our sources for this assessment consist of court cases and our own interview samples drawn from police, union and management officials.
Dans cet article, nous étudions l'interdépendance institutionnelle entre les cours et la police lors de la gouvernance du piquetage. L'analyse apporte des éclaircissements sur la manière dont des droits économiques et sécuritaires sont mis en équilibre avec des droits politiques et civiles dans l'affirmation oblique du fondement d'autorité qui est sans doute plus puissante dans une situation de construction indirecte au jour le jour. Nous situons d'abord le concept de «jugement par temporisation» dans la littérature contemporaine sur la gouvernance, pour l'appliquer ensuite à une enquête sur l'évaluation par les cours de demandes d'injonction dans des cas de piquetage et la compréhension des responsabilités policières dans ces cas. Nous analysons la perception qu'a la police de son rôle dans la gouvernance du piquetage et montrons comment tant la cour que la police emploient des pratiques de temporisation pour éviter des décisions difficiles. La recherche démontre que ces pratiques relèvent d'une approche systémique de la gouvernance du piquetage qui peut toutefois s'effondrer. L'analyse s'appuie sur des décisions judiciaires et des entrevues réalisées auprès d'un échantillon de représentants de la police, de syndicats et d'employeurs.
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16 R. v. Oakes, [1986] 1 S.C.R. 103; Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd. [1986] 2 S.C.R. 573; U.F.C.W., Local 1518 v. KMart Canada Ltd. 2 S.C.R. 1083 [KMart]; British Columbia Government Employees' Union. v. British Columbia (A.G.), [1988] 2 S.C.R. 214 [British Columbia (A.G.)]; Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P, [1999] 2 S.C.R. 1136 [Allsco]. (Many of these cases deal with the question of whether secondary picketing and leafleting are protected under the general right of expression through picketing. In Retail, Wholesale and Department Store Union, Local 588 v. Pepsi-Cola Canada Beverages Ltd. [2002] 1 S.C.R. 156 [Pepsi-Cola], the Supreme Court of Canada stated that secondary picketing was generally lawful unless it involves criminal or tortious actions.)
17 R.S.C. 1985, c. C-46, s. 423 empowers police to lay charges against any person or persons who watch or beset the premises of an employer, block or obstruct the highway, or attempt to intimidate others by real or perceived threats of violence; S. 430 provides a charge of criminal mischief for obstructing, interrupting, or interfering with any person in the use, enjoyment or operation of property.
18 Ss. 423(2) & 430(7) allow an exemption from these offences for the purposes of obtaining or communicating information.
19 Alberta, New Brunswick and Newfoundland also define picketing in their labour relations statutes, however only British Columbia maintains an authoritative definition. Carter, D.D., England, G. & Etherington, B., Labour Law in Canada, 5th ed., (Markham: Butterworths, 2002) at 315.Google Scholar
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21 Supra note 18 at 45, 315.
22 Carrothers, A.W.R., “Secondary Picketing” (1962) 40 Can. Bar Rev. 57 at 66Google Scholar, cited in: Channel Seven Television v. NABEJ, (1971) 21 D.L.R. (3d) 424 [emphasis added].
23 Carrothers, A.W.R., Palmer, E.E. & Rayner, W.B., Collective Bargaining Law in Canada, 2nd ed. (Toronto: Butterworths, 1986) at 609–10.Google Scholar (This definition has been employed in several cases: O.K. Economy Stories v. RWDSU Local 454 (1994), 118 D.L.R. (4th) 345; Pepsi-Cola, supra note 16; Kmart, supra note 16, and Allsco, supra note 16; Groupe Qualité Laméque ltée v. Métallurgistes unis d'Amérique, Loc. 9254 (1994), 150 N.B.R. (2d) 297; Newfoundland and Labrador (A.G.) v. Newfoundland and Labrador Assn. of Public and Private Employees (2004), 236 Nfld. & P.E.I.R. 284.)
24 Scarman, Lord, The Scarman Report: The Brixton Disorders (London: HMSO, 1982) at 4.57.Google Scholar
25 We use the definition of legality in Skolnick, Jerome, Justice Without Trial (New York: Wiley, 1966).Google Scholar
26 “An interlocutory injunction is a pre-trial injunction that is temporary in nature and generally remains in place until trial or final disposition of the action or proceeding” Meehan, E. & Currie, J.H., Injunctions (Scarborough: Carswell, 1996) at 19.Google Scholar
27 Contemporary injunction terms typically do not fully prohibit picketing, but will instead set restrictions on some facet such as limiting picket numbers, and/or where picketing may occur.
28 Fudge, J. & Tucker, T., Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900–1948 (Oxford; Oxford University Press, 2001).Google Scholar
29 Laskin, Bora, “Labour Injunctions in Canada: A Caveat” (1937) Can. Bar Rev. 272.Google Scholar
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31 Petro Canada v. Landcorp Ontario Ltd. (1988), 21 C.P.R. (3d) 461. In cases involving picketing: Griffen Steel Foundries Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers (1977), 80 D.L.R. (3d) 634; Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2; Aramark, supra note 20; Borden & Elliot v. Paulekat, [2000] O.J. No. 571, online: QL(OJ) [Borden & Elliot]; British Columbia Telephone Co. v. International Brotherhood of Electrical Workers, Local 1003, [1986] B.C.J. No. 1844, online: QL(BCJ).
32 Carter et al., supra note 18.
33 R.S.B.C. 1996, c. 244, s. 137(2).
34 Regarding the division of jurisdiction in British Columbia, it was stated in Better Value Furniture Ltd. v. General Truck Drivers and Helpers Union, Local 31 (1981), 122 D.L.R. (3d) 12 that “The Board concluded that it had exclusive jurisdiction over the industrial relations regulation of picketing, such as its object, timing, and location, while the courts retained jurisdiction over violations of the general law, both civil and criminal, occurring in the course of picketing. This position has been adopted, correctly in my opinion, by the Supreme Court of British Columbia in several decisions: All-town Construction Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1598 (1976) unreported (per McKay, J.); Central Native Fishermen's Cooperative v. B.C. Provincial Council, United Fishermen and Allied Workers Union (1976) 61 D.L.R. 93d) 677 (per Toy, J.)Google Scholar; Alcan Smelters and Chemicals Ltd. v. Canadian Association of Smelter and Allied Workers, Local 1 (1977) 3 B.C.L.R. 163 (per Macfarlane, J.)Google Scholar; Miko and Sons Logging Ltd. v. Penner [1976] 4 W.W.R. 756, 77 C.L.L.C. 14,063 (per McKay, J.); and Pitura v. Lincoln Manor (1979) 9 B.C.L.R. 77 (per Munroe, J.).” This position has been upheld by the Labour Relations Board and was recently given support in Health Employers' Assn. of British Columbia (Re) [2004], B.C.L.R.B.D. No. 151 and by the court in Brotherhood of Maintenance and Way Employees and Canadian Pacific [1996] 2 S.C.R. 495.
35 Berryman, J., The Law of Equitable Remedies (Toronto: Irwin Law, 2000).Google Scholar
36 Ibid.
37 In British Columbia the test for interlocutory relief employed by both the courts and Labour Relations Board, is sometimes only two-pronged, as it has been held that “the requirement of irreparable harm [is] integral to the assessment of the balance of convenience” and thus harm and convenience need not be considered as separate steps: British Columbia (A.G.) v. Wale (1986), 120 N.R. 212; [1986] B.C.J. No. 1395, online: QL(BCJ). Regarding the practical effect of the both the three and two part test as the same has been affirmed by the British Columbia Supreme Court in several cases: Prince Rupert Grain Ltd. v. Grain Workers Union, Local 333, [2002] BCSC 1351; [2002] B.C.J. No. 2129, online: QL(BCJ); Peter Kiewit Sons v. Public Service Alliance of Canada, Local 20221 (Union of Canadian Transport Employees), [1998] B.C.J. No. 1494, online: QL(BCJ); Schwartz v. Riverside Forest Products Ltd., [2003] BCSC 52; [2003] B.C.J. No. 57, online: QL(BCJ); Certispec Services v. International Longshore and Warehouse Union, Local 518, [1998] B.C.J. No. 2318, online: QL(BCJ); Vancouver (City of) v. Vancouver Municipal and Regional Employees' Union (1994), 118 D.L.R. (4th) 417;[1994] B.C.J. No. 1825, online: QL(BCJ); Westmin, supra note 20; Air Canada v. Canadian Airline Pilots Assn. (1997), 28 B.C.L.R. (3d) 159; [1997] B.C.J. No. 121, online: QL(BCJ).
38 [1975] A.C. 396 (H.L.).
39 N.W.L Ltd. v. Woods [1979], 1 W.L.R. 1294 (H.L.) [N.W.L Ltd.].
40 Sharpe, R.J., Injunctions and Specific Performance, 3d ed. (Aurora: Canada Law Book 2000) at 2.300.Google Scholar
41 N.W.L Ltd., supra note 39; RJR Macdonald v. Canada (A.G.) [1994], 1 S.C.R. 311 [RJR Macdonald].
42 The serious issue test has also been deemed inappropriate in other circumstances (for example, in cases involving covenants in restraint of trade). See Sharpe, supra note 38 at 2.300.
43 There exists some disagreement as to whether a prima facie or a serious issue case must be established for an injunction to issue in the context of picketing. Although the application of the prima facie test seems to be most prevalent, numerous examples of the use of the serious issue test can be found (Cargill Foods Toronto Ltd. v. Suppa-Magee [1995] O.J. No. 3203, online: QL(OJ) [Cargill Foods]. Also see, for example, Borden & Elliot, supra note 31, Interforest Ltd. v. Weber (1999), 180 D.L.R. (4th) 176.)
44 N.W.L Ltd., supra note 39; RJR Macdonald, supra note 41.
45 Ibid.
46 Falconbridge Ltd. v. Sudbury Mine, Mill & Smelter Workers Union, Local 598, [2000] O.J. No. 4168, online: QL(OJ) [Falconbridge].
47 “It has been held that the courts should avoid taking a narrow view of irreparable harm. The concept is not to be restricted to market loss or damage to business reputation and may include harm in the form of administrative disruption and inconvenience caused by dismantling a scheme of school administration (…) The important point is that irreparable harm has not been given a definition of universal application: its meaning takes shape in the context of each particular case.” Sharpe, supra note 38 at 2.410.
48 Often harm and the “public interest” are also weighed in determining the balance of convenience, or at some point during consideration (primarily in public cases often involving Charter disputes): RJR Macdonald, supra note 41. See also, for example, British Columbia (A.G.), supra note 16; Manitoba (A.G.) v. Metropolitan Stores Ltd. [1987] 1 S.C.R. 110; PCL Constructors Canada v. Public Service Alliance of Canada, [1997] Y.J. No. 81, online: QL(YJ); Canada Post Corp. v. Canadian Union of Postal Workers, [1991] 84 D.L.R. 150 [Canada Post]; Association des éducateurs catholiques de St- Hyacinthe v. Québec (A.G.) (1968), 68 C.L.L.C.P. 14, 111.
49 Supra note 38.
50 The preservation of the status quo may also be considered (often with the public interest) in determining whether the granting or refusal of an injunction will result in a state of minimal harm, especially in those cases where a balancing based on merits alone is problematic. However, it was recognized in RJR. Macdonald that this approach is of limited value in private litigation.
51 Sharpe, J., Injunctions and Specific Performance, 2nd ed., (Aurora: Canada Law Book, 1983) at para. 193Google Scholar, cited in: SCC Construction Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada (1987), 63 Nfld. & P.E.I.R. 295.
52 Carter et al, supra note 18 at 45, 315. See also Chum Ltd. v. Nabet Loc. 915, (1985) 55 Nfld. & P.E.I.R. 215; Brewers Distributor Ltd. (Re) [2000] Alta. L.R.B.R. 444.
53 St. John's Transportation Commission v. ATU Loc 1462, (1989) 76 Nfld. & P.E.I.R. 148; Re Attorney General of Ontario and Bear Island Foundation (1989), 70 O.R. (2d) 758; Canadian Pacific Forest Products Ltd. v. Holder, [1990] O.J. No. 2397, online: QL(OJ); Canada Games Park 1995 Inc. v. Canadian Union of Public Employees, local 3336, (1995) 134 Nfld. & P.E.I.R. 62; Cargill Foods, supra note 43; Queen's University v. CUPE Loc 229 (1994), 28 C.P.C. (3d) 64; [1994] O.J. No. 1227, online: QL(OJ); Photo Engravers and Electrotypers Ltd. v. Fell (1989), 90 CLLC para. 14,002 at 12005; [1989] O.J. No. 1442, online: QL(OJ); Dover Corp. (Canada) Ltd. v. National Automobile Aerospace Transportation and General Workers Union of Canada, Local 27 (1996), 7 O.T.C. 205; [1996] O.J. No. 2319, online: QL(OJ); Falconbridge, supra note 46.
54 Gordon, M., “‘Labour Injunctions’ When, Where and Why to Seek Labour Injunctions” (Insight Press, Groupmark, 1990) at 3.Google Scholar
55 The court itself has sometimes constructed the injunction in labour disputes as a sort of weapon: Blackstone Industrial Products Ltd. v. Parsons (1979), 23 O.R. (2d) 529; Urban Parcel Services Ltd. v. Canadian Union of Postal Workers (1991), 107 N.S.R. (2d) 63; Maple Leaf, supra note 20.
56 See, for example: R.P. Saul & E. Vanderburgh, “Injunctions 1992” (The Continuing Legal Education Society of British Columbia, 1992) at 1.1.24–1.1.25.
57 The general tendency among the police seems to be the allowance of minor or ambiguous criminal actions, as was stated by VP6: “We would only intervene if a criminal offence, a serious criminal offence was involved. I don't consider blocking vehicle access to be a serious criminal offence. We would likely look at that as to be a civil injunction and limiting the number of pickets and how they picket. We direct them towards the Labour Relations Board (…).”
58 Interview TL3.
59 Interview TPS8.
60 Interview VP4.
61 For an example of these protocols see Ogden Entertainment Services v. Retail, Whole sale Canada Canadian Service Sector Division of the United Steelworkers of America, Local 440, (1998) 159 D.L.R. (4th) 340.
62 Maple Leaf Foods, supra note 20.
63 As HP4 noted: “If it's some sort of prolonged or sustained blockage I mean we have the capabilities of enforcing the law, but we prefer to turn to management and ask them to access or resolve the issue through the courts, specifically injunctions.”
64 According to Vancouver Police Force policy, they will attend where service of an injunction may precipitate a breach of the peace. They will maintain surveillance and provide evidence of any apparent breaches in support of an application, by the party obtaining the injunction, for an apprehension order under Rule 56 of the Rules of Court. If the alleged contempt is declared to be criminal in nature, the Vancouver Police would arrest, as directed by the court or the Attorney General, and bring before the court any person who on reasonable and probable grounds was believed to have committed a criminal contempt.
65 Supra note 48.
66 Reiss, supra note 1.
67 As WP5 stated: “We would say that we would request consideration of not being included, if the wording appears, it starts to appear that the OPP will be there and you know doing this thing, we bring it to their attention. I've actually had to talk to the lawyers after the fact and say, look it, I want, I request the injunction be changed or adjust it because we're improperly named in this. We'll do our job, we don't need to be named in an injunction to keep the peace at a picket line, we're there anyways through common law plus policing services, in terms of the police services act.”
68 Interview HP9.
69 Interview VPB.
70 Courts of Justice Act, R.S.O. 1990, c.43 [Justice Act].
71 [1991] O.J. No. 2617 at 3 (QL)(OJ).
72 Supra note 48 at 153.
73 Supra note 20.
74 Toronto (City) v. Canadian Union of Public Employees, Local 416, [2002] O.T.C. 468; [2002] O.J. No. 2731, (QL)(OJ).
75 (2001), 52 O.R. (3d) 694.
76 Supra note 74 at para.5.
77 Interview VPB.
78 Interview TPB.
79 Interview VLL.
80 Interview TP11.
81 Interview VL19.
82 Interview VP4.
83 Interview WP2.
84 Interview VLL.
85 Interview HP6.
86 Turner, supra note 3.
87 Russell, Bob, Back to Work. Labour, State and Industrial Relations in Canada (Toronto: Nelson. 1990).Google Scholar
88 The growing reliance on Labour Relations Boards [LRBs] in certain provinces (particularly in British Columbia) contributes to deferral in the governance of picketing. Although this study focuses mostly on the courts and police, where these deferral practices are most visible, initial examination of cases involving LRBs reveals that these practices also exist there, although they are less apparent. This lowered visibility might be argued to stem from the fact that LRBs must maintain a more co-dependent relationship with labour and management than the police and courts, and are thus more sympathetic and less overt in these practices. For example, it appears that judgment by deferral manifests itself between LRBs and courts in questions of jurisdiction; cases, or certain facets of them, are often passed between these two bodies through appeals to lack of legislative authority effectively postponing resolution of the dispute (although both are adequately equipped to provide resolution). Much like the courts, LRBs often defer judgment by issuing orders placing restrictions on pickets (numbers, location, etc.) sometimes well before mediating a final resolution of the underlying dispute. However, our study is limited in this respect because we did not conduct an in-depth analysis of LRB cases.
89 Giddens, A., “Action, Subjectivity and the Constitution of Meaning” (1986) 53:3Social Research 529.Google Scholar