Facts
Canada Post owns 91% of Purolator shares. When CUPW members went on strike in 2024, Purolator profited from Canada Post customers using their services instead. This undermined strike efforts, and CUPW members began also picketing outside of a Purolator facility in Toronto.
The picketing involved CUPW members providing information to vehicles entering and exiting the building. On November 29, 2024, CUPW members also engaged in picketing that delayed vehicles from exiting the building, with the exception of vehicles delivering medical supplies.
Purolator responded by calling the Toronto Police Services. However, the police informed Purolator that there were no grounds to remove the CUPW members. Next, Purolator sought an ex parte injunction to have CUPW members removed from the property. The ONSC granted the injunction on November 30, 2024, without CUPW present.
Reasons
The ONSC decision ordered a conventional injunction on the following basis:
Issue 1: Labour Injunction
Per section 102 (1) of the Courts of Justice Act, a labour dispute is defined as follows:
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.
CUPW emphasized the importance of the final words “regardless of whether the disputants stand in proximate relation of the employer and employee” which have historically been applied to allow for the practice of secondary picketing in which striking union members attend secondary locations outside of the workplace.
Following Trudel & Sons Roofing Ltd. v. Canadian Union of Shingler's & Allied Workerstest, the ONSC assessed whether Purolator could be considered an alter ego for Canada Post, whether they share a place of business, and whether they are too remotely connected to conclude that a relationship exists.
Despite 91% of Purolator shares being owned by Canada Post, and despite the Chair and the CEO of Canada Post maintaining positions on the Board of Purolator, the ONSC determined that Purolator was not an alter ago and was too remote from Canada Post to be considered connected. On this basis the Court decided that section 102 does not apply to these circumstances [para 33].
Issue 2: Conventional Injunction
The test for a conventional injunction requires the moving party to demonstrate:
a. That there is a serious issue or a strong prima facie case to be tried.
b. That the moving party would suffer irreparable harm if the injunction were not granted.
c. That the balance of convenience favours granting the injunction.
d. That the moving party has provided an undertaking in damages. [para 36]
In it’s assessment, the ONSC applied the tort of nuisance to the test and placed less consideration on the breadth of caselaw supporting Unions’ right to strike and to secondary picketing, stating that these decisions were made “in the context of restrictions on an employer’s rights to access property during a strike, not in the context of a third party being denied use of its property.” [para 60].
Implications
Although this decision has some very discouraging impacts for the labour movement, it does leave room for additional submissions due to the nature by which it was sought.
The injunction was sought by Purolator on an “emergency” basis. Purolator claimed not to know the identity of the picketers, despite neon yellow vests with large CUPW logos. The ONSC acknowledges that “with the benefit of hindsight, the technically perfect answer may have been to decline to hear the motion until CUPW had been given at least the courtesy of a phone call.” [para 35]
The ONSC went on to acknowledge that “Purolator's counsel have been involved in other disputes with CUPW, including ongoing disputes, where CUPW's counsel of record is the same counsel as is acting for CUPW in this matter.” [para 34]
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