J. _Q.B. A.D. 1994 No. 2583 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: PCL CONSTRUCTION MANAGEMENT INC. and LES MILLS and KEN JOHNSTON, on behalf of themselves and all members of Canadian Union of Public Employees, Local 47, and DAVE TAYLOR and LOIS LAMON, on behalf of themselves and all members of Canadian Union of Public Employees, Local 59, and STEVE SAUNDERS and PAT HYDE, on behalf of themselves and all members of International Brotherhood of Electrical Workers, Local 319, and DAN BICHEL and PETER PERERA, on behalf of themselves and all members of Amalgamated Transit Union, Local 515, DEFENDANTS RESPONDENTS L.F. Seiferling, Q.C., J.E. Seibel for the applicant plaintiff and S.R. Spencer N. R. McLeod for all of the respondents defendants JUDGMENT GROTSKY J. August 26, 1994 At the conclusion of the hearing of this applicationon August 23, 1994, I reserved my decision thereon andindicated that reasons for my decision would follow shortly;and, that pending my said reasons, the interim injunctiongranted by me on August 19, 1994 would continue. These are those reasons. PRELIMINARY OBSERVATIONS On August 17, 1994, at the request of counsel for the applicant granted an order ex parte abridging the time for the service and return of the notice of motion respecting the within application and, inter alia, subject to compliance with my express directions for service of copy of said order, said notice of motion, and the materials filed in support thereof, gave leave to the applicant to make said motion returnable for hearing at o'clock in the afternoon of August 19, 1994. On August 19, 1994, at o'clock in the afternoon, inquired of counsel for the respondents as to whether he had any preliminary objections or matters to raise to me in connection with the subject application. He advised that he had no preliminary objections or applications and clearly advised that he was unequivocally appearing on behalf of each of the respondents. When inquired of counsel for said respondents as to whether he, in view of the short notice authorized by me for the return of said motion, required an adjournment for any purpose including for the purpose of seeking further advice in the matter and/or for the purpose of preparing, serving, and filing any material(s) in response to those filed, and served, in support of the present application he advised that he did not, and further, that he was prepared to proceed with the hearing of the application. then heard from learned counsel for the applicant. After hearing (in part) from learned counsel for the applicant the hearing was adjourned for short period of time (at my suggestion, as was of the view that counsel for the respondents was obviously not aware of or fully appreciating certain submissions then being made by learned counsel for the applicant, and which appeared to be founded upon, and supported in part by, videotape which had been exhibited to the affidavit of one Abdel Wahab filed for use on the noted ex parte application to me, and which was now part of the materials being relied upon by the applicant on this application, and which had obviously not been viewed by counsel for the respondents albeit copies of said affidavit of said Abdel Wahab had been served on the respondents along with the notice of motion so that they and their counsel ought to have been aware of said videotape and of its contents to the extent deposed to by said Abdel Wahab) so as to permit counsel for the respondents and the respondents present in chambers to view said videotape so as to afford them every opportunity to properly prepare for the subject application. This application was then adjourned, for that purpose, for the period of time requested by counsel for the respondents. After viewing said videotape, or so much thereof as he, and his clients, were able to view during the noted adjournment, counsel for the respondents requested further adjournment of the subject application (which was opposed by learned counsel for the applicant on the ground that counsel for the respondents had earlier been offered and refused an adjournment in consequence of which learned counsel for the applicant then embarked upon his submission) to August 22, 1994, so that in the interim he, and the respondents could view fully said videotape, and prepare, serve and file materials, if so advised, in opposition to the application. Notwithstanding the objection thereto by learned counsel for the applicant, as (1) the respondents were by my ex parte order given very short notice and (2) there was no suggested prejudice to the applicant if such adjournment was granted on terms, I, on specific terms, adjourned the application to be further dealt with at the hour of 10 o'clock in the forenoon of August 22, 1994, or to any subsequent date and time as may be arranged with me by counsel through the office of the local registrar of this Court and leave was given to counsel for the respondents, as an officer of the court, and with the consent of counsel for the applicant, to remove and protect said videotape for the noted viewing purposes and for its return by 10:00 a.m. on August 22, 1994 to the local registrar of this Court. Leave was also given to the respondents, if so advised, to file and serve materials in response to this application, and, if the applicant was so served, then it too was given leave to file and serve materials in response thereto. NATURE OF PRESENT APPLICATION The applicant seeks orders as follows: 1. An interim and interlocutory injunctionrestraining the Defendants, LES MILLS, KENJOHNSTON, DAVE TAYLOR, LOIS LAMON, STEVESAUNDERS, PAT HYDE, DAN BICHEL, PETERPERERA, THE CANADIAN UNION OF PUBLICEMPLOYEES, LOCAL 47, THE CANADIAN UNION OFPUBLIC EMPLOYEES, LOCAL 59, THEINTERNATIONAL BROTHERHOOD OF ELECTRICALWORKERS, LOCAL 319, and THE AMALGAMATEDTRANSIT UNION, LOCAL 615, and all agents,officers, representatives and members ofthe Unions and any person acting on orunder their instructions or authorizationand any other person having notice of thisorder until the trial of this action from: (a) besetting, watching or picketing theConstruction Site and Entrance theretoadjacent to Whiteswan Drive and the H.M.Weir Pollution Control Plant at 470Whiteswan Drive, Saskatoon, Saskatchewan,and legally described as follows: All that portion of NE 1/4-14-37-5-W3rd which lies to the left bank of the South Saskatchewan River as shown on plan of survey of said township dated January 17, 1895, and containing 62.60 acres, more or less, except that part taken by Plan of Survey 78-S-15186. ("the Construction Site") (b) from blocking or obstructing access to and exit from the Construction Site or from interfering with the Construction Entrance to the Site; (c) from interfering or attempting to interfere with, intimidating or attempting to intimidate or inducing or attempting to induce breaches of contract by any employees, agents, suppliers or contractors of the Plaintiff, or any other persons seeking peaceful entrance or exit from the Construction Site; (d) from picketing, parading or congregating at or near the Construction Site; (e) from interfering or attempting to interfere with the performance of the Plaintiff's construction contract; (f) from taking any action designed to or having the effect of inducing breach of contract between the Plaintiff and any of its servants, employees, subcontractors or suppliers; (g) from aiding, abetting, counselling, procuring or encouraging in any manner whatsoever, whether directly or indirectly, any other person to commit the aforesaid acts; (h) from obstructing, interrupting or interfering with the lawful use and improvement of the Construction Site and Entrance by the Plaintiff; 2. Costs of this application; 3. Such further and other relief as this Honourable Court may deem just and equitable. The grounds upon which this application is founded, as stated and set forth in the applicant's notice of motion, 1. The acts complained of are illegal and have caused and continue to cause loss and damage to the Plaintiff, including damage of an irreparable nature; 2. It is just and equitable in all the circumstances that the injunction be granted. THE MATERIALS FILED IN SUPPORT OF THIS APPLICATION INCLUDE: 1. The statement of claim issued in this action on the 17th day of August, A.D. 1994 with proofs of service thereof; 2. The ex parte order granted by me to the applicant on the 17th day of August, A.D. 1994, abridging the time for the service and return of the notice of motion herein on the 19th day of August, A.D. 1994, with proofs of service thereof; 3. The notice of motion returnable on August 19, 1994, with proofs of service thereof; 4. The affidavits filed in support of said ex parte application and, as well, in support of said notice of motion with proofs of service thereof: a.The affidavit of Ron Wurm, the applicant's site superintendent with respect to the construction project hereinafter referred to and, deposed to by him on August 17, 1994 together with the exhibits thereto with proofs of service thereof; b.The affidavit of Tim Sedgewick, the applicant's project engineer with respect to the said construction project hereinafter referred to and, deposed to by him on the 17th day of August, 1994, with proofs of service thereof; c.The affidavit of Shelley Chirpilo, the personnel director of the said City of Saskatoon deposed to by her on the 17th day of August, 1994, with proofs of service thereof; d.The affidavit of Kim Ethier who is employed as an office clerk in the office of Coram Construction at its office at the Construction Site hereinafter referred to and deposed to by him on August 17, 1994, with proofs of service thereof; e.The affidavit of Abdel Wahab, security guard at the Construction Site hereinafter referred to together with the videotape exhibited thereto and deposed to by him on August 17, 1994, with proofs of service of said affidavit; f.The applicant's undertaking as to damages with proofs of service thereof; g.The affidavit of Gerald Wudrich, "management" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to an affidavit deposed to by one Brad Chant on the 19th day of August, 1994, and filed on behalf of the defendants in opposition to this application; h.The affidavit of Gene Macwillie, "management" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant; i.The affidavit of C. P. Hwang, "management" employee of the City of Saskatoon deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant; j.The supplementary affidavit of said Ron Wurm deposed to by him on August 19, 1994, in response to the said affidavit deposed to by said Brad Chant and, as well, in response to an affidavit deposed to by the defendant Ken Johnston on the 19th day of August, 1994; k.The supplementary affidavit of said Tim Sedgewick deposed to by him on August 19, 1994, in response to said affidavit of said Brad Chant. Where any of the allegations contained in the foregoing affidavits are founded upon hearsay evidence and thereby violate the provisions of s. 45.20(2) of The Queen's Bench Act, R.S.S. 1978, c. Q-1, as amended, said allegations have not been considered by me on this application. THE MATERIALS FILED IN OPPOSITION TO THIS APPLICATION CONSIST OF: 1. An affidavit deposed to by the defendant, Ken Johnston, vice-president of the defendant, Canadian Union of Public Employees, Local 47, on August 19, 1994; 2. An affidavit deposed to by said Brad Chant on August 19, 1994, who therein identified himself as an employee of the City of Saskatoon and member of the Canadian Union of Public Employees, Local 47, in response to the contents of the original affidavit deposed to by said Ron Wurm, supra; and 3. An affidavit deposed to by the defendant, Les Mills, president of the defendant, Canadian Union of Public Employees, Local 47, on August 23, 1994. It is here significant to observe that notwithstanding the respondents were given an adjournment with leave to serve and file materials if so advised, except for said affidavits above referred to, they have not filed any materials disputing numerous of the substantial allegations deposed to by various of the noted affiants and specifically of various substantive matters deposed to by said Abdel Wahab as supported by the videotape exhibited thereto, or, to my satisfaction, to the very serious and substantial allegations, which accept, contained in paras. 11 and 12 of the said affidavit deposed to by said Ron Wurm on August 17, 1994, which read as follows: 11. On Monday, August 15, 1994: (a) At approximately 8:45 a.m. arrived at the Construction Entrance and waited in line to gain entrance. There were several vehicles in front of and behind me waiting to enter stretching onto Whiteswan Drive, and could also observe several vehicles waiting at the Construction Entrance to exit from the Construction Site; (b) All of these vehicles were prevented for at least several minutes from moving through the gates and on the road across the boulevard by massing of approximately 15 picketers, many wearing signs similar to those described in paragraph hereof. Such signs definitely depicted affiliation with Local 47, but cannot recall what other group or groups may have been identified; (c) observed that the lead vehicle in each of the entry and exit line-ups was prevented from driving on the boulevard road between Whiteswan Drive and the gates of the Construction Entrance for about to minutes, and, therefore, how long vehicle had to wait depended how far back it was in line; (d) When had reached the point in line where was the leading vehicle awaiting entry, was prevented from entering because several picketers continuously walked in front of my vehicle, and at times one or more would stand stock still in front of me, so that there was never an opening in the mass of picketers through which could drive; (e) estimate that was held up for approximately 10 to 15 minutes in the line up before gaining entry; (f) One picketer wearing white shirt with logo bearing the word "BLUE" in three directions on its front and carrying picket sign with long wooden handle walked in front of my truck from the driver's side to the passenger's side headlight, made gesture as if to strike the front right corner of my truck, then turned, walked back past the front of my truck, and as he was just past the front driver's side fender, he swung the sign and used the wooden handle to strike the fender. was then allowed to drive through the gates. Just inside the gates stopped and got out of my truck. noted that there was damage to the truck fender where observed the picketer strike the truck. This picketer has been identified to me by Tim Sedgewick as one Brad Chant. have reported the incident and damage to the Saskatoon City Police. 12. arrived at the Construction Site on Tuesday, August 16, 1994, at approximately 6:30 a.m., and there was mass of picketers present at the Construction Entrance, many of whom carried signs identifying affiliation with Local 615. At that time took series of photographs. Five such photographs are attached hereto as Exhibit "B". The picketers were obstructing the entrance of the Plaintiff's employees to the Construction Site for up to 20 minutes. In fact, the Plaintiff already had two loads of concrete waiting on site for the Plaintiff's concrete finisher employees who were prevented from entering the Construction Site for approximately one- half hour. As well, it is here also appropriate to observe that by paras. 4, and 10 of the affidavit deposed to by said Les Mills, supra, he unequivocally acknowledges (and, on the whole of the evidence before me on this application, accept the following portions thereof) as follows: 4. That there is no question that picketing has taken place at the entrance to the construction site adjacent to the pollution control plant, and have been frequently picketer at that location. 6. That there have been an (sic) number of instances where trucks have arrived with supplies for the construction site, and there is no question that those trucks have been delayed by the presence of picket line. 10. That in reference to the Affidavit of Mr. Wahab, paragraph 7, there were baseball bats brought to the picketing site. On the basis of the materials before me on this application am satisfied that the salient facts, which accept, may be thus summarized: 1. The applicant is body corporate duly licensed and authorized to carry on its business as general contractor in the Province of Saskatchewan with offices at the Cities of Saskatoon and Regina in said Province; 2. The applicant has contract with the City of Saskatoon to perform construction at construction project ("the Construction Site") adjacent to the said City's H. M. Weir Pollution Control Plant situated at or near 470 Whiteswan Drive in said City; 3. The Construction Site is fully enclosed by chain link security fence; 4. The Construction Site entrance is an entrance to said Construction Site only and is separate and apart from the main entrance to the said City's existing facilities at the said H. M. Weir Pollution Control Plant which is south of the said Construction Site entrance; 5. As at the date of this application said Construction Site entrance is used only by the applicant, its employees, its subcontractors, its suppliers, its agents, its patrons and customers and their respective employees; 6. The works being constructed on said Construction Site are not in operation and there are no employees of said City engaged in the construction work being carried on on said 7. The Construction Site entrance is not used by employees of said City to attend at the operating facilities of said H. M. Weir Pollution Control Plant; 8. The City of Saskatoon is presently involved in labour dispute with number of its employees and the Unions representing the said employees; 9. Neither the applicant, or any of its subcontractors, has labour dispute with any of their employees working on said Construction Site; 10. The Construction Site has its own entrance thereto for use by the construction workers employed thereon. 11. Employees of the said City have no reason to work, or to be, on said Construction Site; 12. Picket lines have been set up at the said Construction Site entrance by persons involved in said City of Saskatoon labour dispute thereby causing disruption of the applicant's construction project. Specifically, and without limiting the generality of the foregoing: a. On each working day from the morning of Monday, August 8, 1994 to and including Tuesday, August 16, 1994, picketers were located on and adjacent to the road across the strip of land between said Whiteswan Drive and the gates of said Construction Site entrance; b. On each working day from the morning of Monday, August 8, 1994 to and including Tuesday, August 16, 1994, persons lawfully seeking to access and, as well, exit from said Construction Site have been prevented from so doing by picketers who were in motion and who either continuously walked in front of the vehicles being operated by said persons and/or at times stood stock still in front of said vehicles at the said Construction Site entrance/ exit. Some vehicles were held up for periods of up to 10 or 15 minutes, or more; c. Suppliers (and deliverers) of materials required by the applicant for the performance of its noted contract with the City have refused to cross said picket line(s) to deliver the said materials to said Construction Site; d. The delays, caused by said picketers, in the arrival of construction workers, equipment and materials required therefor, have resulted in delays of said construction work thereby interfering with the plaintiff's performance of its contract with said City, and with its contracts with its own subcontractors and suppliers; e. On one occasion one of the picketers swung wooden picket sign at truck lawfully attempting to enter said Construction Site, struck one of its fenders, and caused damage to it; f. At times picketers have jumped on to vehicles attempting to enter and/or exit said Construction Site and by placing their picket signs over the windshield have obstructed the vision of the operators thereof; g. At times picketers have addressed intimidating language towards the operators of vehicles attempting to enter and/or exit said Construction Site; h. On one occasion picketer took photograph of the license plate of the motor vehicle belonging to said Abdel Wahab and by his language Wahab understood said person to be advising him that "This is going to be useful for the future." THE APPLICANT'S POSITION The applicant submits that in the particular circumstances, the picketing of the subject Construction Site by the specifically named respondents, and by the Union respondents' respective members, agents, officers, representatives and by every other person acting on or under their instructions or authorization: a. amounts to secondary picketing and is unlawful; b. alternatively, even if it is determined that the subject picketing is not secondary picketing, its purpose, as disclosed by the evidence, is unlawful, and ought not to be permitted; c. in the further alternative, if it should be determined that the subject picketing is not secondary picketing and unlawful, but that only the mode of the subject picketing is unlawful, an order ought to issue eliminating those unlawful and/or improper elements of said mode of picketing and particularly prohibiting mass picketing, blocking of the entrance to and exit from said Construction Site and any coercion or intimidation by words or actions or otherwise by the said respondents and their respective agents, officers, representatives and members. THE RESPONDENTS' POSITIONS The respondents each submit that they are not engaged in secondary picketing. That they, their respective agents, officers, representatives and members are engaged in lawful picketing of the subject Construction Site. That, as expressed by said Les Mills in para. 12 of the affidavit deposed to by him on August 23, 1994, supra: Our members need the opportunity to picket in order to communicate their dissatisfaction with this labour dispute and to feel that they are effectively making their point to those individuals who now carry out the work. It should here be observed that except for the affidavits deposed to by Messrs. Ken Johnston, Brad Chant and Les Mills, supra, on behalf of themselves, and Canadian Union of Public Employees, Local 47, none of the other respondents have filed any materials in opposition to this application and the submissions above referred to as being made on their behalf are merely submissions by their counsel none of which are supported by any evidence. ISSUE NUMBER Is the subject picketing secondary picketing as isalleged by the applicant? Picketing of an employer not directly involved in labour dispute has been found to be illegal per se even if conducted in peaceful manner and solely for the purpose of communicating information. Vide: Hersees of Woodstock Ltd. v. Goldstein et al., 1963 CanLII 151 (ON CA), [1963] O.R. 81 (Ont. C.A.); Heather Hill Appliances Ltd. v. McCormack, (1964-65) C.L.L.C. 264, para. 14,083 (Ont. H.C.); Toronto Harbour Commissioners v. Sninsky, (1967-69) C.L.L.C. 313, para. 14,065 (Ont. H.C.) and Edinburgh Developers Ltd. et al. v. Vanderlaan, Sentes et al., 1974 ALTASCAD 31 (CanLII), [1974] W.W.R. 481 (Alta. S.C.). In Hersees, supra, the employees of manufacturer were picketing an independent retailer of the said manufacturer's products. The Ontario Court of Appeal considered the circumstances and determined that any justification that the picketers may raise for their attempt to advance their cause in their relationship with their employer did not warrant the harm that their conduct would bring to the retailer's business. The court stated at p. 86: But even assuming that the picketing carried on by the respondents was lawful in the sense that it was merely peaceful picketing for the purpose only of communicating information, think it should be restrained. Appellant has right lawfully to engage in its business of retailing merchandise to the public. In the City of Woodstock where that business is being carried on, the picketing for the reasons already stated, has caused or is likely to cause damage to the appellant. Therefore, the right, if there be such right, of the respondents to engage in secondary picketing of appellant's premises must give way to appellant's right to trade; the former, assuming it to be legal right, is exercised for the benefit of particular class only while the latter is right far more fundamental and of far greater importance, in my view, as one which in its exercise affects and is for the benefit of the community at large. If the law is to serve its purpose then in civil matters just as in matters within the realm of the criminal law, the interests of the community at large must be held to transcend those of the individual or particular group of individuals. have been unable to find clear and unequivocal precedent for this principle in any of the numerous decisions at all relevant to the question, to be found anywhere in Canada. The court went on to conclude at p. 88: On the other hand these condemnations of the secondary picketing as being illegal do not appear in context which suggests that they are based upon the inclusion in the picketing of the extrinsic unlawful elements mentioned elsewhere in the judgments and view them as declaring secondary picketing to be illegal per se. Upon this ground also would restrain the respondents. (emphasis added) In Heather Hill, supra, Stewart J. held that notwithstanding the picketing at issue was without incident, it was secondary picketing and unlawful in itself. He states at p. 264 as follows: It is important therefore to recognize the completely different aspect that picketing has now assumed, and to accept the fact that damage will be suffered by the person who is picketed. In Toronto Harbour, supra, Stark J. cited Hersees and Heather Hill, supra, and stated at p. 313: it must now be taken to be the law of Ontario that picketing, however peaceful, of the premises of an employer, where there is no direct dispute between him and the picketers or between him and his employees, is per se unlawful and cannot be justified merely because the picketers are engaged in legal strike against another employer who has business relations with the employer being picketed. That is the situation in this case. (emphasis added) accept and adopt the views expressed by Stark J. in Toronto Harbour, supra. The Alberta Court of Appeal too in Edinburgh Developers, per Clement, J.A. clearly accepted that secondary picketing is unlawful per se. The Supreme Court of Canada has also addressed the issue of secondary picketing. In A. L. Patchett Sons Ltd. v. Pacific Great Eastern Railroad Company, 1959 CanLII 41 (SCC), [1959] S.C.R. 271 (S.C.C.) the plaintiff sought damages from the defendant on the basis of breach of statutory duty owed to it by the defendant by reason of its failure to provide cars when the defendant's union employees refused to cross picket line set up around the appellant plaintiff's plant. While in this case the issue of secondary picketing was only addressed by way of obiter, Rand J. at p. 277 appears to have been of the view that secondary picketing was illegal per se, for he is reported as follows: There was, in fact, no labour dispute between the I.W.A. and the appellant and the picketting was illegal. (emphasis added) and Rand J. went on to say: If the appellant had asserted its unquestioned rights, the root of the trouble (the picketers) would have been removed as it was by the immediate and voluntary withdrawal of the pickets when on November an interim injunction against the respondent was obtained; direct move against the pickets by the appellant could not have had less effect than that indirect action. (emphasis added) The issue of secondary picketing was again visited by the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander v. Dolphin Delivery Ltd. et al., 1986 CanLII (SCC), [1987] W.W.R. 577 (S.C.C.). Although the ratio decidendi of this case relates to the application of the Canadian Charter of Rights and Freedoms to private litigants, the facts related to secondary picketing and resulted in detailed discussion of the issue of secondary picketing by McIntyre J. on behalf of the majority of the court. At pp. 591-593 he is reported as follows: From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed limitation upon Charter freedom. balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing picketing of third party not concerned in the dispute which underlies the picketing. The basis of our system of collective bargaining is the proposition that the parties themselves should, wherever possible, work out their own agreement. Professor Weiler in Reconcilable Differences, Toronto (1980), at pp. 64-65, states: The basic assumption of our industrial relations system is the notion of freedom of contract between the union and the employer. There are powerful arguments in favour of that policy of freedom of contract. We are dealing with the terms and conditions under which labour will be purchased by employers and will be provided by employees. The immediate parties know best what are the economic circumstances of their relationship, what are their non-economic priorities and concerns, what trade-offs are likely to be most satisfactory to their respective constituencies. General legal standards formulated by government bureaucrats are likely to fit like procrustean bed across the variety and nuances of individual employment situations The freedom to agree logically entails the right to disagree, to fail to reach an acceptable compromise. Most of the time good faith negotiation does produce settlement at the bargaining table, often without great deal of trouble. But often enough it does not; and of course it is the failures which generate the visible tumult and shouting. And at that point the collective bargaining system diverges sharply from other components in the market economy. When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man-hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, legislative weapon to be employed in labour dispute by the employees against their employer, it should not be permitted to harm others. Weiler, at p. 80, again comments: strike action is legal only in order to resolve dispute with an employer about the negotiation of new collective agreement. Logically picket line should be legitimate only on such an occasion. As well the only permissible target of the picket line should be the primary employer that employer with whom the union is negotiating and whom it is trying to compel to make favourable concessions in order to settle the agreement. Putting it the other way, unions should not be permitted to picket the business of third party. Such secondary employer is not involved in the primary dispute, it does not have it within its power to make the concessions that will settle the new contract, and thus it should not be the target of weapon whose legitimate purpose is to extract such economic concessions. It should be noted here that in the province of British Columbia secondary picketing of the nature involved in this case, save for the picketing of allies of the employer, has been made unlawful by the combined effect of of ss. 85(3) and 88 of the British Columbia Labour Code, R.S.B.C. 1979, c. 212, as amended. This statute, of course, does not apply in this case, but it is indicative of the legislative policy, in respect of the regulation of picketing in that province. It shows that the application of s. of the Charter to sustain the limitation imposed by the common law would be consistent with legislative policy in British Columbia. would say that the requirement of proportionality is also met, particularly when it is recalled that this is an interim injunction effective only until trial, when the issues may be more fully canvassed on fuller evidence. It is my opinion then that limitation on secondary picketing against third party, that is, non-ally, would be reasonable limit in the facts of this case. would therefore conclude that the injunction is "a reasonable limit prescribed by law which can be demonstrably justified in free and democratic society". (emphasis added) have also read and considered the following authorities: Garry v. Sherritt Gordon Mines Ltd., [1988] W.W.R. 289, 1987 CanLII 4897 (SK CA), 59 Sask. R. 104 (Sask. C.A.); the unreported fiat of my brother Noble J. in Realty Ltd. and Clearlite Glass Ltd. v. Greg Zaba and Blair Barilla et al. dated December 31, 1992; PCL Construction Ltd. v. Busch, (1982) 19 Sask. R. 331 (Sask. Q.B.); MacMillan Bloedel (Saskatchewan) Limited v. Powell, Pahlke et al., (1968) 1968 CanLII 511 (SK QB), 66 W.W.R. 269 (Sask. Q.B.); PCL Construction Ltd. v. Klein, (1982) 1982 CanLII 2316 (SK QB), 19 Sask. R. 347 (Sask. Q.B.); Potash Corporation of Saskatchewan Mining Limited v. Todd, Heinrich and Energy and Chemical Workers Union, Local 922, (1987) 1987 CanLII 4918 (SK CA), 53 Sask. R. 165 (Sask. C.A.) and McLean Trucking Company et al. v. Public Service Alliance of Canada, (1985) C.L.L.C. 12,242 at para. 14,046 (B.C.C.A.). CONCLUSIONS WITH RESPECT TO ISSUE NO. Applying the principles enunciated in the cases herein (and therein) specifically referred to, on the whole of the evidence before me on this application am satisfied that the applicant has established that: 1. It is not party to the labour dispute between the City of Saskatoon and various of its employees as represented by the said Union respondents and which includes the persons specifically named herein as defendants respondents; 2. The labour dispute between the City of Saskatoon and its said various employees referred to in para. hereof immediately preceding does not involve anyone employed at or working on said Construction Site; 3. It is in full control of the subject Construction Site; 4. The applicant is secondary employer under contract to said City of Saskatoon to perform the noted construction work at the said Construction Site; 5. The applicant is without any ability to settle the existing labour dispute between said City of Saskatoon and its striking employees, including said respondents and/or the said City's employees represented by them or either of them; and that, in the particular circumstances, the respondents, theirrespective agents, officers, representatives and all otherpersons acting upon or under their respective instructions orauthority, are engaged in unlawful secondary picketing. In view of my conclusion with respect to said issueno. 1, it is not necessary that I deal with the other issuesraised by this application, other than to observe that, on thebasis of the (admissible) evidence before me on thisapplication, and the principles enunciated in the authoritiesabove (and therein) referred to, if I had determined that thesubject picketing was not secondary picketing, then, in theparticular circumstances I would still have held that thesubject picketing was unlawful, and ought to be restrained,as, on the whole of said evidence I am satisfied that theapplicant has established that said picketing is not beingcarried on for the purpose of lawful communication, but,rather, is being carried on in a manner designed to obstruct,impede and interfere with the lawful performance by theapplicant of its noted construction contract on the subjectConstruction Site. On the whole of the evidence am satisfied that the applicant has raised substantial question to be tried; it has established prima facie case of the violation by the respondents, their respective agents, officers, representatives and all other persons acting upon or under their respective instructions or authority of right or rights that the applicant might have. The applicant has shown more than the mere prospect or apprehension of injury; it has shown that the respondents, and their respective agents, officers, representatives and all other persons acting upon or under their respective instructions in doing that which the applicant alleges is in violation of its rights and that it is suffering in consequence thereof and that such suffering cannot be adequately compensated for by the award of damages in money. Further, that the balance of convenience in the matter favours the applicant. There will, therefore, be an order granting to theapplicant an interim injunction until trial, or until furtherorder, the terms of which are as follows: TERMS OF INTERIM INJUNCTION The respondents, and all agents, officers, representatives and members of said respondent Unions and any person acting on or under their instructions or authorization and any other person having notice of this order are enjoined until the trial of this action, or until further order, from: (a) besetting, watching or picketing the Construction Site and Entrance thereto adjacent to Whiteswan Drive and the H.M. Weir Pollution Control Plant at 470 Whiteswan Drive, Saskatoon, Saskatchewan, and legally described as follows: All that portion of NE 1/4-14-37-5-W3rd which lies to the left bank of the South Saskatchewan River as shown on plan of survey of said township dated January 17, 1895, and containing 62.60 acres, more or less, except that part taken by Plan of Survey 78-S-15186. ("the Construction Site") (b) from blocking or obstructing access to and exit from the Construction Site or from interfering with the Construction Entrance to the Site; (c) from interfering or attempting to interfere with, intimidating or attempting to intimidate or inducing or attempting to induce breaches of contract by any employees, agents, suppliers or contractors of the Plaintiff, or any other persons seeking peaceful entrance or exit from the Construction Site; (d) from picketing, parading or congregating at or near the Construction Site; (e) from interfering or attempting to interfere with the performance of the Plaintiff's construction contract; (f) from taking any action designed to or having the effect of inducing breach of contract between the Plaintiff and any of its servants, employees, subcontractors or suppliers; (g) from aiding, abetting, counselling, procuring or encouraging in any manner whatsoever, whether directly or indirectly, any other person to commit the aforesaid acts; (h) from obstructing, interrupting or interfering with the lawful use and improvement of the Construction Site and Entrance by the Plaintiff. At the request of counsel for the respondents, and with the consent of counsel for the applicant, the issue of costs is reserved with leave to the parties to speak to same on date and time convenient to them and myself and as may be arranged by counsel with me through the office of the local registrar of this Court.
PCL applied for an interlocutory injunction restraining the members of the Defendant unions from picketing the entrance to a construction site at which PCL was constructing an addition to the City's sewage treatment plant. The picketers were completely blocking the entrance to the construction site, were threatening the occupants of vehicles using the entrance and damaged one vehicle as it entered the site. No City employees were working on the site. ISSUES: 1)Is the picketing secondary picketing? 2)Is the manner of picketing unlawful in any event? HELD: Application allowed. 1)Picketing of the premises of an employer, where there is no direct dispute between him and the picketers or between him and his employees, is secondary picketing, is per se unlawful and cannot be jusified merely because the picketers are engaged in a legal strike against another employer who has business relations with the employer being picketed. 2)If the court had determined that the subject picketing was not secondary picketing, then, in the particular circumstances it would still have held that the subject picketing was unlawful, and ought to be restrained, as, on the whole of said evidence it was satisfied that the applicant had established that said picketing was not being carried on for the purpose of lawful communication, but, rather, was being carried on in a manner designed to obstruct, impede and interfere with the lawful performance by the applicant of its construction contract on the construction site.