Many Canadians are aware that employees who are members of a union enjoy the right to collectively strike if they feel they have been mistreated in some manner by their employer. Few, however, are aware of what the right to strike encompasses and any limitations that may be placed on such activity.

For example, striking often includes picketing by striking members on and around the employer’s premises. But how far does the right to picket extend? Are employees permitted to interfere with the operation of the employer’s business? Or to interfere with the operation of other area businesses in the vicinity where picketing occurs?

Such questions arose in the context of the recent Canada Post strike. The court’s decision in this case is important for unionized employees and employers alike in terms of clarifying the boundaries of the right to picket as part of striking.

Canada Post Employees Picket at Purolator Facility

The case of Purolator Inc. v John Doe et al. arose in the context of the recent Canada Post strike, which endured for several weeks throughout November and December of 2024. Canada Post owns 91% of Purolator, though 93% of those shares are held by Purolator employees through an employee share purchase plan. While Purolator employees are unionized, they belong to a different union than Canada Post workers.

During the strike, Canada Post workers picketed outside many locations, including a Purolator facility in Scarborough, Ontario. Since they were protesting at a workplace that wasn’t their own, this is called secondary picketing. The facility had only one entrance and exit. At first, the picketers didn’t physically block the way, but over time, they started stopping vehicles from leaving for 15–30 minutes. On November 29, only 27 of the 78 scheduled delivery vehicles were able to leave.

The Nature of the Facility at Which Picketing Occurred

The facility in Scarborough where employees were picketing was designated as a hub for next-day deliveries to hospitals, pharmacies, police department and medical service providers, amongst other entities. The court noted that deliveries to medical institutions are particularly critical and that such delivery delays could cause significant detrimental impacts to medical care providers and patients alike.

The Picketers’ Attempt to Accommodate Timely Medical Deliveries

When the picketers were advised by Purolator employees that a particular delivery truck included medicine or other medical supplies that were urgently needed, the picketers would remove their barriers to allow trucks to exit the property. However, it was noted that many of the trucks that the protesters blocked from leaving may have also contained urgently required medical materials, given that such products are often distributed throughout a fleet of delivery trucks rather than contained in only one truck.

Purolator Seeks Injunction to Prevent Secondary Picketing

Purolator brought an application to the court seeking an immediate injunction to prevent secondary picketing on its premises at the Scarborough location. The company cited the obstruction of delivery trucks that contained urgently needed medical materials as the reason for the injunction.

The Test for Granting an Injunction

In considering whether to grant a requested injunction, the court considers a four-part test. The test requires that the party seeking the injunction prove the following:

  • that there is a serious issue to be tried;
  • that the person seeking the injunction would suffer irreparable harm in the event the injunction is not granted;
  • that the balance of convenience favours the granting of the injunction; and
  • that the party who seeks the injunction has suffered damages as a result of the actions of the party against whom the injunction is sought.

Serious Issue to be Tried

In this case, the court considered the first criterion of the test for an injunction, whether there existed a serious issue to be tried.

The court noted that the picketers’ delays in preventing vehicles from leaving the Scarborough facility had resulted in 19.5-hour delays in product delivery to intended recipients. These delays had caused significant issues for third parties awaiting delivery of their products, which had nothing to do with the Canada Post labour dispute.

Striking: a Balance

Moreover, blocking access to property may constitute, under the Criminal Code, wilful obstruction, nuisance, or interference with a property owner’s right to enjoy their property. However, this must be balanced against the right of unionized employees to strike and to picket, which are constitutionally protected Charter rights.

Although the court acknowledged the right of the Canada Post employees to picket, it also noted that the significant delays caused to Purolator by the picketers’ actions and the consequences for innocent parties such as hospital patients awaiting crucial medications rendered such actions a nuisance. Purolator had proven that there existed a substantial issue to be tried in this case.

Irreparable Harm

The court easily disposed of the second factor of the test for an injunction in that “It is well-established in law that where protesters engage in tortious or criminal actions, damages are not an adequate remedy. The remedy for intentional, unlawful conduct ought to be an order to cease and desist”. Additionally, Ontario courts have ruled in previous decisions that the blocking of an exit to another’s property is considered to cause irreparable harm to the owner. As such, the court concluded that Purolator had demonstrated that it would suffer irreparable harm if the court declined to grant the injunction.

Balance of Convenience

Consideration of the third branch of the test for an injunction, the balance of convenience, requires a court to consider which of the parties to the action will suffer greater damage or harm in the event the injunction is denied or granted.

In this case, the court was satisfied that the balance of convenience favoured Purolator. If an injunction were not granted, Purolator would continue to experience significant deprivation of its right to free use of its property, and many customers would be denied timely delivery of products that were greatly needed for medical purposes. As nothing prevented the Canada Post employees from moving their picket line several feet away from the entrance to the Purolator property, the court was satisfied that the balance of convenience favoured Purolator.

Damages

As Purolator had provided an undertaking in damages to the court, it had satisfied the fourth criterion of the test.

Injunction Granted, Canada Post Employees Ordered to Picket in Designated Areas Only

As Purolator had satisfied all four branches of the test for an injunction, the court granted the request for the injunction, and ordered that Canada Post employees were entitled to picket only in a designated area in the Purolator parking lot. The employees would be permitted to undertake their Charter right to picket, while Purolator would be afforded the right to continue their services without unnecessary delay.

Contact Grosman Gale Fletcher Hopkins LLP for Assistance with Your Labour Dispute Today

If your employees are involved in a labour dispute, or a labour dispute is taking place on your premises in the form of secondary picketing, then you can benefit from experienced legal advice to help protect your rights throughout a legal matter. Fortunately, Grosman Gale Fletcher Hopkins LLP is here to help.

From our offices in downtown Toronto, Ontario, Grosman Gale Fletcher Hopkins LLP is proud to provide experienced advice and effective solutions to employers and employees from all over Southwestern Ontario. Contact us today, either online or via telephone at (416) 364-9599, and one of our staff will be pleased to schedule a confidential consultation to assess your needs and help you resolve your matter.