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Enjoin the Picketers?

Article Excerpt
Originally published July 2005

In 2002, the Supreme Court of Canada ruled that picketing is a form of expression protected by the Canadian Charter of Rights and Freedoms. In so ruling, the Supreme Court of Canada made it clear that the lawfulness of picketing will be determined by the conduct of the picketers, not their location. Prior to this ruling, it was considered illegal per se for picketers to exert economic pressure on third parties, such as customers and suppliers, unless those third parties were "allies" of the employer. The distinction between primary picketing and "secondary picketing", picketing at a location other than the premises of the employer whose employees are on strike, has now been abolished. Secondary picketing is permissible unless it can be shown to be wrongful or unjustified.

For companies that are third parties to labour disputes, it may be surprising that picketing of their premises is considered permissible. However, the laws of intimidation, trespass, nuisance and inducing breach of contract continue to apply to picketers, and picketers may not unduly impede access to or exit from the picketed premises. To minimize the potential for adverse impact upon its business, a company threatened with picketing action should focus on preparing an appropriate contingency plan and on gathering evidence of unlawful conduct. With evidence of unlawful conduct, including threats and undue prevention of access to the company's premises, an injunction may still be available.

This bulletin provides basic information a company should consider in the event that picketing threatens to disrupt its business. It should be noted that each situation is unique, and legal advice should be obtained in the event that a company receives notice its business may be disrupted as a result of picketing. Specific questions should be directed to a member of McMillan Binch Mendelsohn LLP's Litigation or Labour Groups.

I. Is Injunctive Relief Available to Restrain Picketing?

Injunctive relief may be available if the picketing involves conduct that is tortious...