Restricting Illegal Picketing – The “Flexible Wrongful Action Approach”
Over the last decade there have been numerous cases which rely on the Charter of Rights and Freedoms to protect and arguably expand a union’s right to picket during a labour dispute. Despite this trend, the courts have consistently stated that those protections do not apply to “illegal picketing”, which contains tortious or criminal conduct. The courts have also applied a “flexible wrongful action approach” in granting injunction orders to prevent illegal picketing.
In a recent case, PBC Health Services Society v. Canadian Union of Public Employees, Local 1816, Jane Doe, John Doe, and Other Unknown Persons, August 18, 2017 (Vancouver Registry: S177573), the employer brought an injunction application to prohibit illegal picketing by the union. The B.C. Supreme Court found clear evidence that the picketing was obstructing access to the employer’s worksite. The court also found that the union members’ conduct contained elements of intimidation, harassment and trespass on the employer’s property. This included swearing at non-union personnel while obstructing them, making contact with vehicles and walking on the employer’s property to extend the duration of the obstruction.
The court concluded that the obstruction of access was clear tortious conduct and granted an order restraining the union. Further, although the strict legal tests for tortious and/or criminal intimidation and/or harassment were not present, the court applied the flexible wrongful action approach to grant an order that also restrained intimidation and harassment by the union. Since the employer had made out a prima facie tort case regarding obstructing access, the door was effectively opened for the court to address related conduct by the union, even if the related conduct did not meet the legal thresholds for tortious or criminal activity.
Similarly, the court granted an order prohibiting deliberate trespassing and concluded that s. 66 of the Labour Relations Code did not prohibit such an order.
Lessons for Employers
In all illegal picketing cases, the facts will be closely reviewed by the court so that it can craft a remedy that is tailored to address the wrongdoing. Although this case was the first injunction application brought by the employer, the evidence was sufficient to warrant the orders, in particular given the employer’s previous cease and desist letter and the fact that an executive member of the union was directly involved in the illegal picketing.
While it is common ground that picketing is not a “tea party”, this case illustrates that the courts will (and must) restrict illegal picketing and will be flexible in fashioning appropriate orders.
From a practical perspective, affidavits and supporting video evidence of the illegal picketing were critical in establishing the employer’s case and obtaining the orders sought.