|
Injunctions - Labour Disputes. Purolator Inc. v. Canadian Union of Postal Workers
In Purolator Inc. v. Canadian Union of Postal Workers (Ont CA, 2026) the Ontario Court of Appeal allowed a union's appeal, this brought against "injunctions obtained by Purolator Inc. ... restraining picketing at Purolator’s Ontario premises by members of the Canadian Union of Postal Workers (“CUPW”), who were at the time on strike against their employer, Canada Post Corporation (“Canada Post”).":I. Overview
[1] At issue in this appeal is the proper interpretation of s. 102 of the Courts of Justice Act, R.S.O. 1990, c. C. 43 (the “CJA”), which sets out certain requirements that must be satisfied before issuing an injunction restraining actions taken in connection with a labour dispute.
[2] The appeal arises from injunctions obtained by Purolator Inc. (“Purolator”) in November and December 2024, restraining picketing at Purolator’s Ontario premises by members of the Canadian Union of Postal Workers (“CUPW”), who were at the time on strike against their employer, Canada Post Corporation (“Canada Post”). Purolator’s motion for an injunction was initially brought on an ex parte basis, even though s. 102 of the CJA does not permit ex parte injunctions in the context of labour disputes except in certain limited circumstances. The motion judge found that s. 102 did not apply since Purolator and CUPW were not parties to a “labour dispute”. He instead issued an interim injunction on the basis of s. 101 (the “Injunction”).
[3] CUPW appealed to this court, arguing that s. 102 rather than s. 101 of the CJA applied to Purolator’s motion and the motion judge erred in issuing the Injunction on an ex parte basis under s. 101. Purolator brought a motion to quash the appeal for lack of jurisdiction, arguing that because the motion judge issued the Injunction under s. 101, the proper appeal route was to the Divisional Court, with leave, in accordance with s. 19(1)(b) of the CJA.
[4] A three-judge panel of this court dismissed Purolator’s motion to quash the appeal, holding that issuance of the Injunction was in substance governed by s. 102 of the CJA: see Purolator Inc. v. Canadian Union of Postal Workers, 2025 ONCA 565 (the “ONCA Jurisdiction Decision”). This court therefore had jurisdiction to hear the appeal on its merits pursuant to s. 102(10) of the CJA.
[5] Having now heard the merits appeal, I would allow the appeal and set aside the Injunction.
[6] Section 102(2) of the CJA provides that, subject to certain limited exceptions, injunctions restraining an “act in connection with a labour dispute” shall not be issued without notice. As I explain below, CUPW’s picketing of Purolator’s premises falls within the meaning of “an act in connection with a labour dispute” contemplated by s. 102 of the CJA and an injunction prohibiting the activity could only have been issued in accordance with the notice requirements of that section. Because the s. 102 procedure was not followed, the Injunction was issued without jurisdiction and must be set aside.
....
C. The motion judge erred in issuing the injunction under s. 101 of the CJA, since the CUPW picketing of the Purolator Facility was an “act in connection with a labour dispute” and, therefore, the injunction could only have been issued under s. 102
1. Section 102 of the CJA applies where an injunction is sought to restrain activity connected to a labour dispute, regardless of whether the Moving Party is a “disputant” in the underlying labour dispute
[29] This appeal turns on the proper interpretation of s. 102 of the CJA, which provides in relevant part as follows:Injunction in labour dispute
Definition
102 (1) In this section,
“labour dispute” means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
Notice
(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice.
[Emphasis added.] [30] Both parties agree that the motion judge’s determination on this issue is a question of law subject to review on a correctness standard. I agree.
[31] It is well established that the modern approach to statutory interpretation requires examining the words of the provision in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
[32] As described above, the motion judge found that s. 102 is only engaged where the Moving Party is a “disputant” in a “labour dispute”. Respectfully, the motion judge erred by failing to have sufficient regard to the text of the provision as well as its context and purpose.
[33] The text throughout the subsections of s. 102 repeatedly states the s. 102 regime applies whenever an injunction is sought “to restrain a person from an act in connection with a labour dispute”: see ss. 102(2), 102(3), 102(4), 102(5), and 102(6). On a plain reading of this text, the focus of the provision is not on whether the Moving Party is a “disputant” in the labour dispute, but on the “connection” between the act and the labour dispute.
[34] The motion judge erred by asking himself the wrong question. Rather than determining whether the picketing by CUPW was an act “in connection with” the labour dispute between Canada Post and CUPW, the motion judge focused instead on the different and narrower question of whether Purolator was expressly or functionally a party to that labour dispute.
[35] Assuming, then, that the application of s. 102 turns on whether the activity to be restrained is “in connection with” a labour dispute, how is that issue to be determined?
[36] I note that the words “in connection with” have been interpreted by this court in a number of different contexts and have repeatedly been found to have a very broad meaning: see e.g., Mantini v. Smith Lyons LLP (2003), 2003 CanLII 20875 (ON CA), 64 O.R. (3d) 505 (C.A.), at para. 19, leave to appeal refused, [2003] S.C.C.A. No. 344; Lawrence v. Toronto Humane Society (2006), 2006 CanLII 20224 (ON CA), 212 O.A.C. 263 (C.A.), at paras. 83-85; see also Intercap Equity Inc. v. Bellman, 2022 ONCA 61, 160 O.R. (3d) 536. The term “connection” means “there is some relationship between two things or activities – that they have something to do with each other”: Lawrence, at para. 85, citing Re Kitchener-Waterloo Real Estate Board Inc. and Ontario Regional Assessment Commissioner, Region No. 21 et al (1986), 1986 CanLII 2660 (ON HCJ), 56 O.R. (2d) 94 (H.C.), at p. 103. This jurisprudence suggests that a broad and inclusive interpretation should be given to the phrase “in connection with a labour dispute” in s. 102 of the CJA.
[37] Such a broad interpretation of the scope of s. 102 is consistent with the purpose of the provision, which is to provide a separate regime with enhanced procedural protections for injunctions in a labour dispute. In this case, the relevant procedural protection is that notice must be given before an injunction can be issued. In other words, s. 102 deals with how a motion must proceed, not whether it will succeed. That latter question is determined in accordance with the tripartite test for granting an injunction set out in RJR-MacDonald. One important difference, however, is that if notice is given in advance, the court will have the benefit of evidence and submissions by both parties and thus will better understand the full implications of the injunction sought. It will also enable the court to more carefully tailor any injunction that might be issued, which will reduce any difficulties that might subsequently arise in successfully implementing the order.
[38] These concerns informed the drafting of what is now s. 102 of the CJA. In 1966 the Ontario government appointed the Royal Commission Inquiry into Labour Disputes to examine, inter alia, the use of and procedures for obtaining injunctions to restrain picketing in relation to labour disputes. The Royal Commission’s 1968 report raised concerns about the use of ex parte injunctions in the labour context and recommended that “[u]nless otherwise agreed upon, injunctions will be permitted only on evidence given viva voce and on notice, except in cases of emergency”: Report of the Royal Commission Inquiry into Labour Disputes, (Toronto: Frank Fogg Queen’s Printer, 1968), at pp. 33-37.
[39] In 1970, the legislature amended s. 17 of the Judicature Act, R.S.O. 1960, c. 197 (the precursor to s. 102 of the CJA) to give effect to the recommendations of the Royal Commission. These amendments expanded the definition of “labour dispute” to include disputes over terms and conditions of employment even where the disputants did not stand “in the proximate relation of employer and employee”. This broadening of the definition of labour dispute reflected the Royal Commission’s desire to limit the issuance of ex parte injunctions in labour disputes to situations of emergency.
[40] An expansive reading of s. 102 also aligns the provision with the Supreme Court’s seminal decision in R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, [2002] 1 S.C.R. 156. In Pepsi-Cola, union members were engaged in a lawful strike against their employer, Pepsi-Cola. In addition to picketing Pepsi-Cola’s premises, union members picketed retail outlets to prevent the delivery of Pepsi-Cola products and to dissuade the staff at these outlets from accepting delivery. They also carried placards in front of a hotel where replacement workers were staying, and demonstrated outside the homes of Pepsi-Cola’s management personnel.
[41] The Supreme Court abandoned the previous common law rule which treated secondary picketing as per se illegal conduct. Instead, the Supreme Court held that all picketing is permitted, whether “primary” or “secondary”, unless it “crosses the line and becomes tortious or criminal in nature”, as was the case in respect of the picketing of the homes of Pepsi-Cola’s management which amounted to disorderly conduct and intimidation: Pepsi-Cola, at paras. 66, 73, 117. In contrast, the picketing of retail outlets and the hotel where the replacement workers were staying was peaceful picketing which did not engage any tort or crime: Pepsi-Cola, at para. 116. This was expressive activity intended “first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients”: Pepsi-Cola, at para. 27. Not only did such expressive activity engage freedom of expression, one of the highest constitutional values enshrined in s. 2(b) of the Charter, it also played a significant role in redressing “the imbalance between the employer’s economic power and the relative vulnerability of the individual worker”: Pepsi-Cola, at para. 34.
[42] Taking all of the above considerations into account, I interpret s. 102 of the CJA as being engaged whenever an injunction is sought to restrain picketing that has an identifiable and distinct connection with an underlying labour dispute. Such a connection would necessarily be established where the Moving Party is itself a disputant in a labour dispute or steps into the shoes of the employer, in accordance with the definition of “labour dispute” in s. 102(1) of the CJA and the test set out in Trudel. But s. 102 will also be engaged where there is some other identifiable and distinct connection between the Moving Party and one or both of the parties to a labour dispute.
[43] An important benefit of this expansive interpretation of s. 102 is that it provides clarity as to the applicable procedure where an injunction is sought to restrain picketing in the context of a labour dispute. This should hopefully avoid unproductive and wasteful litigation over whether the Moving Party has followed the correct procedure and instead focus the attention of the parties and thus the court on the substantive merits of the motion itself.
[44] One possible objection to the approach I suggest is that it fails to provide sufficient protection for the interests of third parties who are not directly involved in a labour dispute and who may have no ability to influence its outcome. As the Supreme Court acknowledged in Pepsi-Cola, the targets of secondary picketing “may suffer considerable economic damage, which may in turn affect customers and employees, as well as a host of other business relations”: Pepsi-Cola, at para. 39.
[45] The answer to this objection is the one noted above, namely, that s. 102 is essentially a procedural mechanism. Thus, the special requirements in s. 102, including to provide notice to the union and/or workers in advance of the motion, will not in itself determine the success or failure of the motion. Whether an injunction will be granted will turn on a motion judge’s assessment of the tripartite test for granting an injunction in the context of the evidentiary record. Moreover, in cases of urgency where formal notice cannot be provided because the delay necessary to do so would result in irreparable damage or injury, a breach of the peace, or an interruption in an essential public service, s. 102(8) provides that informal notice may be provided by telephone or otherwise. This flexibility provides a mechanism to ensure that the application of s. 102 does not work injustice or undue hardship in a particular case.
2. The picketing of the Purolator Facility was connected to the labour dispute between Canada Post and CUPW and the motion judge therefore erred in issuing the Injunction under s. 101 rather than s. 102
[46] Applying the interpretation of s. 102 set out above, I have little difficulty in finding that CUPW has established the existence of an identifiable and distinct connection between its picketing of Purolator and the underlying labour dispute between CUPW and Canada Post.
[47] As already noted, although Canada Post and CUPW are separate corporations, Canada Post owns 91% of Purolator’s shares and Canada Post’s CEO and Chair are both members of Purolator’s board of directors. Canada Post’s majority ownership enables it to exercise significant influence over Purolator, which is sufficient to distinguish Purolator from other courier companies operating in the Canadian marketplace.
[48] I therefore conclude that CUPW’s picketing of Purolator was connected to the underlying labour dispute between Canada Post and CUPW. Since the Injunction restrained that activity, it could only have been issued with notice in accordance with s. 102(2) of the CJA. Purolator does not dispute that notice was not provided as required by s. 102. It necessarily follows that the Injunction was issued without jurisdiction and must be set aside. . Purolator Inc. v. Canadian Union of Postal Workers
In Purolator Inc. v. Canadian Union of Postal Workers (Ont CA, 2025) the Ontario Court of Appeal dismisses an employer's motion to quash a union's appeal, this appeal from "an ex parte interim injunction ... which enjoined CUPW members from picketing at the Facility or any other of Purolator’s premises in the province of Ontario ...".
Here the court considers the correct appeal route, ie. Divisional Court (as an appeal of an interlocutory order) or Court of Appeal (as an injunction "in connection with a labour dispute under s.102 of the CJA":[4] Purolator maintains that because the Orders are interlocutory, CUPW’s appeal lies to the Divisional Court, with leave, as prescribed by s. 19(1) of the CJA. Thus, Purolator brings this motion for an order quashing CUPW’s appeal on the basis this court lacks jurisdiction (the “Motion”).
[5] CUPW contends that the act restrained by the injunction – secondary picketing by a union during a lawful strike – constitutes an activity in connection with a labour dispute under s.102 of the CJA and, therefore, its appeal lies to this court pursuant to s. 102(10).
[6] For the reasons that follow, I would dismiss the Motion. In my view, this court has jurisdiction to hear CUPW’s appeal by virtue of s. 102(10) of the CJA.
....
IV. The relevant statutory provisions
[16] The parties rely on various provisions in ss. 19(1), 101, and 102 of the CJA for their positions. CUPW also relies on s. 2 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”). The most relevant of the provisions relied on by the parties are set out below.
[17] Section 19(1)(b) of the CJA, which reads as follows:Divisional Court jurisdiction
19 (1) An appeal lies to the Divisional Court from,
(b) an interlocutory order of a judge of the Superior Court of Justice, with leave as provided in the rules of court [18] Section 101(1) of the CJA, which reads as follows:101 (1) In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted or a receiver or receiver and manager may be appointed by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so. [19] Sections 102 (1), (2) and (10) of the CJA, which read as follows:Injunction in labour dispute
102 (1) In this section, “labour dispute” means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice.
(10) An appeal from an order under this section lies to the Court of Appeal without leave. [20] Sections 2(b) and (d) of the Charter, which read as follows:2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ...
d) freedom of association. ....
VI. Analysis
A. Introduction
[24] As I explain below, in my view, correctly interpreted, the definition of “labour dispute” in s. 102 encompasses secondary picketing. Consequently, I accept CUPW’s submission that its secondary picketing at the Facility were acts in connection with a “labour dispute” and, therefore, an interim injunction to restrain the picketers could be granted only under s. 102 of the CJA.
[25] Because I see no genuine ambiguity in interpreting s. 102, I find it unnecessary to address CUPW’s submission that interpreting it as applying to secondary picketing promotes the Charter rights and values underlying ss. 2(b) and (d).[3]
[26] I conclude my analysis by explaining why I reject Purolator’s submission that even if s. 102 governed the motion at first instance, CUPW must pursue its appeal under s. 19(1) of the CJA because the Orders were made under s. 101.
B. Section 102 of the CJA encompasses secondary picketing
[27] The modern principle of statutory interpretation is well-known. The words of a statutory provision must “be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21.
[28] Accordingly, I will begin with a plain reading of s. 102(1), considered within the context of s. 102(2) and the balance of that section. Thereafter, I will consider the legislative intention behind the current wording of s. 102(1). In the final section of this analysis, I will briefly review the limited body of relevant jurisprudence.
[29] For ease of reference, ss. 102(1) and (2) are set out again now.(1) In this section, “labour dispute” means a dispute or difference concerning terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. [Emphasis added.]
(2) Subject to subsection (8), no injunction to restrain a person from an act in connection with a labour dispute shall be granted without notice. [Emphasis added.] 1. A plain reading of s. 102(1)
[30] “Labour dispute” is defined in s. 102(1) as a dispute concerning, among other things, terms of employment “regardless of whether the disputants stand in the proximate relationship of employer and employee” (the “Phrase”). On a plain reading of s. 102(1), therefore, a labour dispute encompasses secondary picketing because the Phrase expressly mandates that it applies “regardless of whether the disputants stand in the proximate relationship of employer and employee”. In short, on a plain reading of s. 102(1), the parties do not need to be in an employer-employee relationship to be involved in a “labour dispute”.
[31] The broad language of s. 102(2) supports this interpretation. The word “person” is used, rather than “employee”. The description of the behaviour which is sought to be enjoined is also broad, “an act in connection with a labour dispute”, and the reference back to “labour dispute”, as I have just explained, encompasses secondary picketing.
[32] The balance of s. 102 sets out very specific procedures for obtaining injunctions in the labour context. These procedures are to be contrasted with the general procedure governed by s. 101, a matter of significance when considered within the legislative history of the Phrase in s. 102(1).
2. The legislative intent behind the Phrase in s. 102(1)
[33] As the following history demonstrates, the Phrase was introduced with the legislative intention of ensuring that a uniform standard applies to all labour-related picketing, whether primary or secondary.
[34] Section 17(1) of the Judicature Act, R.S.O. 1960, c. 197, was the predecessor to s. 102(1) of the CJA. Section 17(1) defined “labour dispute” as:a dispute or difference between an employer and one or more employees as to matters or things affecting or relating to work done or to be done by the employee or employees or as to the terms and conditions of employment or the rights, privileges or duties of the employer or the employee or employees. [35] It will be readily apparent that the Phrase does not appear in that version of s. 17(1) of the Judicature Act. Its addition to s. 17(1) arose as a result of the Rand Report.
[36] In 1966, the Ontario government appointed Justice Ivan C. Rand as Commissioner of the Royal Commission Inquiry into Labour Disputes. The Commission was directed to, among other things, inquire into “the means of enforcement of the rights … of employees and employers … and of trade unions and their members … and the use of … picketing … whether lawful or unlawful, in labour disputes, and to examine the use of procedures for obtaining injunctions in relation thereto”: Report of the Royal Commission Inquiry into Labour Disputes, (Toronto: Frank Fogg Queen’s Printer, 1968), at p. 15.
[37] The Rand Report raised concern about ex parte injunctions in the labour context. It made recommendations about the procedures that should be followed for obtaining injunctions in labour disputes. Without distinguishing between primary and secondary picketing, the Rand Report concluded that picketing as a means of obtaining or communicating information is lawful and, therefore, injunctions restraining picketing should be permitted only on notice, except in cases of emergency.
[38] Bill 177 led to the Judicature Act being amended in 1970 to incorporate the Rand Report recommendations. It was at that time that the definition of “labour dispute” was amended to include the Phrase. Following the amendment, s. 17(1) read as follows:a dispute or difference concerning, terms, tenure or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee. [Emphasis added.] [39] The explanatory notes to Bill 177 set out the legislative intent to treat all labour disputes uniformly with respect to injunctive relief:This definition of labour dispute has been expanded to include disputes and differences in a labour context whether or not there is an actual employer-employee relationship existing between the contestants … The enlarged definition provides a uniformity of procedure for obtaining injunctive relief in all labour disputes (RG 4-2, Explanatory Notes – The Judicature Amendment Act, 1970, p. 1). [40] In 1984, the CJA replaced the Judicature Act, including its amended definition of “labour dispute”.
[41] This legislative history of s. 102 of the CJA reveals that the legislature intentionally broadened the definition of “labour dispute” to ensure a uniformity of procedure for obtaining injunctive relief and limit ex parte injunctions in the labour context. The wording of s. 102 itself, the explanatory notes, and the Rand Report do not distinguish between primary and secondary picketing nor does s. 102 impose restrictions based on location of the picketing.
[42] On a plain reading of s. 102(1), with due regard for its purpose and context, it is clear that it governed Purolator’s injunction motion and the motion judge erred in finding otherwise.
3. Relevant caselaw
[43] This court has not before ruled on the applicability of s. 102 to secondary picketing. However, a consideration of the Supreme Court’s reasoning in Pepsi-Cola offers support for the interpretation advanced above, namely, that s. 102 encompasses secondary picketing. Caselaw from the Superior Court of Justice following Pepsi-Cola also lends support to that interpretation.
[44] In Pepsi-Cola, the Court addressed the legality of secondary picketing at common law. It concluded that secondary picketing is generally lawful unless it involves tortious or criminal behaviour. The Court acknowledged that picketing in a democratic society engages distinct and frequently conflicting interests among the parties affected by a labour dispute, noting the clash between the right of unions to freely express their views on the conditions of their employment and the resulting potential for economic damage to third parties: at para. 46.
[45] After canvassing the interests at stake and the conflicting approaches the law had adopted to reconcile them in the context of secondary picketing, the Court concluded that the “wrongful action model” was the best approach for balancing the various interests in a way that conformed to the fundamental rights reflected in the Charter: at para. 74. Under the wrongful action model, as noted, secondary picketing is permitted except where it involves tortious or criminal action.
[46] In arriving at this conclusion, the Court rejected earlier decisions that started from the proposition that secondary picketing is per se unlawful, regardless of its character or impact. Such an approach, the Court stated, runs counter to the Charter values which hold that intrusions on free expression are permitted only to the extent that they are justified: at para. 68. Further, that outdated approach cast the economic protection of third parties from the effects of labour disputes as the pre-eminent concern of the law, regardless of the resulting incursion on free expression: at para. 71. Protection from economic harm is an important value capable of justifying limitations on freedom of expression but cannot be accorded pre-eminent importance over all other values, including free expression: at para. 72. The wrongful action approach focuses on the character and effects of the activity, as opposed to its location, and gets at the heart of why the courts may limit picketing: at para. 76.
[47] The Court’s statement at para. 79 of Pepsi-Cola is of particular importance on this Motion. There, the Court flatly rejects the distinction between primary and secondary picketing, noting that it is “a difficult and arbitrary distinction that deserves to be abandoned”.
[48] Following Pepsi-Cola, in several first instance decisions, the Ontario courts found that secondary picketing is a “labour dispute” and, therefore, s. 102 of the CJA applies to motions for interim injunctions brought to restrain such picketing. See, for example, Ontario Power Generation Inc. v. Society of Energy Professionals, [2005] O.J. No. 3822 (Ont. S.C.), at para. 1; Georgian Downs Limited v. Ontario Harness Horse Racing Association, 2007 CanLII 1341 (Ont. S.C.), at para. 8; and AirTime Express Inc. v. Teamsters Local Union No. 419, 2017 ONSC 5401, at paras. 26-27. However, in Canadian Pacific Railway Company v. Gill et al., 2013 ONSC 256, at para. 19, the court held that s. 102 did not apply to a case of secondary picketing because “there was no labour dispute between the parties”. For the reasons already given, in light of the expanded definition of “labour dispute” in s. 102, I reject that reasoning.
[49] For the sake of completeness, I note that in Southern Sanitation Inc (Wasteco) v. Fiore, 2009 CanLII 35724 (Ont. S.C.), at para. 34, the court found it unnecessary to decide whether secondary picketing was “in connection with a labour dispute”. Further, while the court in Metro Ontario Inc. v. Teamsters Local 938, [2019] O.J. No. 2060, considered the reasoning in Pepsi-Cola at length, it did not squarely address whether s. 101 or s. 102 governed the motion for an interim injunction to restrain secondary picketing.
[50] Purolator relies on a single judge motion decision of this court by Grange J.A. in Stamos v. Belanger, [1994] O.J. No. 2780 (Ont. C.A.), as support for its position that it was open to the motion judge to make the Orders pursuant to s. 101 of the CJA. In my view, that reliance is misplaced for three reasons.
[51] First, Stamos is factually not on point: (1) the parties were not in a labour dispute because the dispute was between an international union and a local chapter of that union; (2) the dispute did not involve workers’ terms of employment; and (3) there was no picketing. In the present case, there was a labour dispute, it did involve the terms of employment of the CUPW members, and there was picketing.
[52] Second, Stamos predates Pepsi-Cola, in which, as has been noted, the Supreme Court rejected the distinction between primary and secondary picketing.
[53] Third, in his reasons, Grange J.A. makes comments directly contrary to Purolator’s position on this Motion. At p. 4, Grange J.A. discusses s. 102 and states: (1) “to be a labour dispute, there need not be a direct relationship of employer and employee between the parties” (emphasis added); and (2) s. 102 is “mainly concerned with picketing and in that regard mainly secondary picketing, which of course did not involve a direct relationship of employer and employee”.
[54] I do not find the other cases on which Purolator relies of assistance because they pre-date Pepsi-Cola and its abolition of the distinction between primary and secondary picketing.
[55] The motion judge relied on Maple Leaf Sports for his assertion that it was settled law that secondary picketing was not picketing in relation to a labour dispute and, therefore, the motion for the injunction before him was governed by s. 101 of the CJA. Maple Leaf Sports is a first instance decision rendered before Pepsi-Cola was decided. In my view, Maple Leaf Sports is unpersuasive because it is inconsistent both with the wording of s. 102(1) and the dictates of Pepsi-Cola which, as noted, abolishes the distinction between primary and secondary picketing.
|
