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Injunctions - Labour Disputes. 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.
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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.
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