IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Compass Group Canada et al v. Hospital Employees' Union et al,
2004 BCSC 51
Date: 20040116
Docket: S034063
Registry: Vancouver
Between:
Compass Group Canada (Health Services) Ltd.
Compass Group Canada (Beaver) Ltd. and
Compass Group Canada Ltd.
Plaintiffs
And
Hospital Employees' Union, and its members, servants
and agents, and persons acting or purporting to act
on its behalf
Defendants
Before: The Honourable Madam Justice Garson
Reasons for Judgment
(In Chambers)
Counsel for Counsel for the Plaintiffs
J. G. Howard and
K.A. Krenn
Counsel for the Defendants
Hospital Employees' Union
G.J. Baugh and
V. Black
Counsel for the Intervenor,
British Columbia Federation of Labour
J. Rogers
Date and Place of Hearing:
December 8 and 9, 2003
Vancouver, B.C.
Introduction
[1] This is an
application to set aside an ex parte order
pronounced by another judge of this Court on July 25, 2003 (the
"Order"). The Order restrained the defendants and anyone having
knowledge of the Order from picketing the plaintiff's job fairs to be
conducted at certain places in Vancouver and Victoria. The full terms
of the Order will be described in more detail below.
[2] The
defendant, the Hospital Employees' Union (the "HEU"),
applies to set aside the Order on several grounds: including that this
court has no jurisdiction because the dispute between the parties is a
labour dispute and therefore within the exclusive jurisdiction of the
British Columbia Labour Relations Board; that the Order ought not to
have been granted on an ex parte basis because it was not a matter of
urgency; that the plaintiffs failed to provide the ex parte hearing
judge with full disclosure of all material facts and misrepresented
certain facts concerning service of the materials; that the injunction
constituted a final determination of the action and the plaintiff did
not have a strong prima facie case on the merits of the claim; and that
the impugned picketing did not meet the test for any of the alleged
torts, that is interference with contractual relations, intimidation,
nuisance, or defamation.
[3] The
defendants apply, in the alternative, for an Order
varying the ex parte order on the grounds that the Order is too broad
and enjoins conduct that could be described as freedom of expression,
and also on the grounds that the Order included a police enforcement
Order contrary to British Columbia authority and in the circumstances a
police enforcement clause was unnecessary.
[4] HEU
applies to strike portions of the affidavit upon
which the Order was obtained on the basis that the evidence contained
therein is inadmissible.
[5] The
plaintiffs say in reply that the application to
enjoin the picketing was extremely urgent. The first job fair had been
cancelled owing to the defendants' picketing. The next job fair was to
be held in Victoria on the day that the ex parte Order was granted and
the following job fair was to commence four days later. The plaintiffs
say that this is not a matter within the exclusive jurisdiction of the
Labour Relations Board because the enjoined picketing was a political
campaign embarked upon by the Hospital Employees' Union and not a labour
dispute. The plaintiffs refute the allegations that they failed to
properly disclose material facts. They refute the defendants' assertion
that they did not make out a prima facie case principally for the tort
of interference with contractual relations.
Facts
[6] The
defendant is a trade union certified under the Labour
Relations Code of British Columbia (the "Code"). The plaintiffs
("Compass") are related companies which hold contracts for work
previously performed by members of HEU.
[7] On July
25, 2003, the plaintiffs applied for and were
granted an ex parte Order. The primary activities restrained by that
Order were picketing, defamation, interference with contractual
relations and obstruction.
[8] The
plaintiffs allege that the picketers were members of
HEU. The picketing occurred outside the Plaza 500 Hotel, in Vancouver,
where Compass was holding a job fair to recruit employees. HEU has been
organizing employees of companies that have received contracts for work
formerly performed by HEU members in the health care sector in British
Columbia.
[9] Since
September, 2002, HEU has been certified for workers
employed by Compass at Renfrew Care Centre in Vancouver doing
housekeeping and dietary work. HEU also has certification applications
pending before the British Columbia Labour Relations Board for workers
employed by Compass at the Vancouver General Hospital, Richmond Kinsmen
Adult Daycare Centre, Evergreen Baptist Care Society and Normana Rest
Home.
[10] HEU has also filed an unfair
labour practice complaint dated
January 22, 2003, against the Compass Group with the Labour Relations
Board of British Columbia. The unfair labour practice complaint is in
relation to the alleged efforts of Compass to prevent its employees from
joining HEU. On September 12, 2002, one of the divisions of Compass
distributed a memorandum entitled "Dear Employee." This
memorandum said
in part, the following:
We exercise our legal right to communicate with you concerning the HEU
certification . . .
In choosing trade union representation or not we ask only that you make
an informed decision. Below please find certain important information
concerning the HEU, the Union which has applied to represent you . . .
In short, the HEU has publicly stated that the purpose of its law suit
is to terminate contracts like ours at Renfrew and to take your jobs
here from you and give them back to the HEU members that had them before
you. DO YOU WANT TO BE REPRESENTED HERE BY, AND PAY DUES TO, A UNION
THAT IS ATTEMPTING TO TAKE YOUR JOBS AWAY BY DEFEATING THE LAW THAT
MAKES YOUR JOBS HERE POSSIBLE?
[11] The dispute discussed in the
September 12, 2002, memo refers
to the activities HEU conducted in opposition to the enactment of Bill
29. Bill 29 enabled provincial health authorities to contract out
certain services to the private sector, notwithstanding provisions in
the existing collective agreements prohibiting such contracting out.
HEU mounted vigorous political opposition to the enactment of Bill 29
and also brought a constitutional challenge to the legislation.
[12] As part of HEU's organizing
efforts, according to the
affidavit of Lila Murao, she and two other Union organizers attended the
job fair conducted by Compass on July 24, 2003, and stood outside the
hotel from approximately 12:00 noon until 12:15 p.m. and from 1:30p.m.
until 3:30p.m. about 12 feet from the main entrance to the hotel. Their
stated purpose was to meet job fair applicants and inform them about the
HEU in case the job applicants decide to organize. She said they handed
out their business cards, organizing cards and fridge magnets to some
job fair applicants who were leaving the hotel and spoke to them
briefly. Lila Murao says that at approximately 3:00 p.m. she saw 30
people carrying signs arrive outside the hotel.
[13] On this application, the Union
does not take responsibility
for those 30 picketers, or acknowledge that the picketers were part of
their Union's organizing campaign. However, photographs of the
picketers, taken by a Compass employee, depict pickets carrying placards
clearly depicting the HEU logos.
[14] Penelope Woodward, the Human
Resources Generalist with the
Compass Group, swore in her affidavit that she attended at the Plaza
Hotel job fair on July 24, 2003. She swore that the banquet manager of
the hotel advised her about the presence of the protesters outside the
hotel, at about 3:00 p.m. He was upset and asked her to cancel the job
fair, which she did. She made no reference in her affidavit to
observing the three organizers referred to in Ms. Murao's affidavit.
[15] Brenda Brown, the Vice President
of Human Resources of
Compass Group, swore in her affidavit that she observed 20 protesters
assembled in an organized fashion, marching and carrying placards.
Slogans on their placards included the following:
(a) Compass hates employees;
(b) Laundry stains love Compass;
(c) Honk for health care;
(d) Compass poverty wages;
(e) Liberals love Compass;
(f) Bloody sheets stay with Compass; and
(g) Patients or profit.
[16] Ms. Brown says that the
protesters appeared to be affiliated
with the HEU as the placards bore the HEU logo. She says that the
picketers were congregating regularly in front of and blocking the
public entrance to the hotel.
[17] The evidence conflicts as to
whether the protesters
dissuaded job fair applicants from entering the hotel. Ms. Murao says
that she did not observe anyone walk toward the hotel and turn away.
Ms. Brown says:
I verily believe that the presence of the picketers and some of the
comments made by them to persons seeking to enter the hotel, some of
whom were likely attending the job fair, may have persuaded them not to
enter the hotel.
[18] Ms. Brown also deposes that it
was the manager of the hotel
who became extremely upset by the protesters and asked them to cancel
the job fair. Apparently on booking the hotel a Compass manager advised
the hotel manager that there might be some protests and Compass had
agreed that if that were the case Compass would cancel the job fair.
[19] Ms. Brown testified that her
concern was that similar
protests would be held at the sites of the up-coming job fairs and that,
if those job fairs could not proceed, Compass would be unable to fulfill
its contracts to provide services to facilities with which Compass had
contracts.
Review of the Ex Parte Order
[20] The ex parte order was pronounced
on Friday, July 25, 2003.
It provides in part:
THIS COURT ORDERS THAT:
1. the Defendants and anyone having knowledge of this Order be
restrained until further order of this Court from:
(a) obstructing, blockading, impeding or in any way interfering with
any person or person, including, without limitation, the Plaintiffs'
employees or job applicants, attending the Plaintiffs' job fairs (the
"Job Fair Sites"), including the job fairs to be held at the following
dates and locations:
(i)
Friday, July 25, 2003
· Howard Johnson Hotel and
Suites, 4670 Elk Lake Drive,
Victoria;
(ii) Tuesday, July 29, 2003
· Holiday Inn Vancouver Centre,
711 West Broadway, Vancouver;
(iii) Wednesday, July 30, 2003
· Radisson Hotel Burnaby, 4331
Dominion Street, Burnaby;
(iv) Thursday, July 31, 2003
· Sheraton Guildford Hotel,
15269 - 104th Avenue, Surrey;
(b) watching or besetting, or congregating at or blocking the
entrance
to or all entrances and exits to and from the Job Fair Sites and the
areas therein used by the Plaintiffs to conduct the job fairs and
intimidating the Plaintiffs' employees and job fair applicants;
(c) interfering with the business, contractual or economic or
prospective economic relationships between the Plaintiffs and the owners
of the Job Fair Sites and between the Plaintiffs and persons attending
the job fairs;
(d) creating a nuisance in, at or near the Job Fair Sites;
(e) publishing orally or in writing, including by means of placards,
statements defamatory of the Plaintiffs; or
(f) ordering, aiding, abetting, inducing, conspiring or counselling
with any other person or persons to commit any of the acts set forth
herein in subparagraphs above.
2. The Defendants may, on giving two clear days' notice to the
Plaintiffs, apply at any time to set aside or vary this Order.
3. The Plaintiffs have leave to apply to vary this Order and
seek
directions with respect to its enforcement on two hours clear notice to
the Defendant Hospital Employees' Union.
[21] All the parties agree that as I
was not the judge who
pronounced the Order, this matter should proceed de novo, meaning that
Compass has the burden of proving that the order ought to have been
granted. It is open to the reviewing judge to consider fresh evidence,
in addition to the material filed on the original ex parte application.
(Bank of Credit and Commerce International (Overseas) Ltd. (Liquidator
of) v. Akbar, 2001 BCCA 204)
Urgency and Service
[22] The circumstances under which
this order was granted are a
little unusual. The plaintiffs' lawyers prepared their material during
the late afternoon and presumably into the night of Thursday, July 24,
2003. The material was ready for filing at court by 10 a.m. on Friday
July 25, 2003. Although counsel had concluded that the proper course
was to apply for an ex parte injunction, he decided nonetheless, to
deliver the material to a law firm he knew to be counsel for HEU. At
the hearing before the chambers judge at 2 p.m. on July 25th, he advised
the chambers judge that he had delivered the materials to the offices of
solicitors for the HEU at 10:03 that morning. He said that he left his
own office to come to the court house at 1:30 p.m. and had not yet heard
from anyone representing HEU. He advised the court that his
understanding was that the law firm at which he had delivered the
materials was "their regular counsel that represents them in all labour
and employment matters." Later in his submissions he advised the
chambers judge that:
As I say, we did serve all the material on the Union's counsel. And the
fact that they're not here, I would suggest, perhaps gives you a little
bit of comfort. And I think you can safely assume that, if they haven't
bothered to show up that they perhaps don't have any major legitimate
interest that they argue would make this application improper, or that
they would argue that it should not be granted. I think, at the very
least, we can perhaps take that much comfort from the fact they are not
here.
[23] Immediately following this
submission the chambers judge
granted the order requested. She said, "I've read the material, and
based on what you've told me and the fact that the HEU's solicitors have
been served, you can take your order."
[24] After hearing submissions and
reading the evidence I advised
all counsel at the hearing that I would make the following findings of
fact: I accept that counsel for Compass, Mr. Howard, thought that
Granville & Pender Labour Law Office was the solicitor for the HEU. I
accept that he had reason to think so because of his past dealings on
related matters between Compass and HEU, and I accept that Granville &
Pender law office are not exclusive solicitors for the HEU.
[25] There was no evidence before me
as to what happened to the
delivered materials or if the delivered materials came to the attention
of anyone with authority to appear on behalf of HEU by 2:00 p.m. that
day. The alleged misrepresentation to the chambers judge concerns the
fact that the Granville & Pender Labour Law Office was not the exclusive
solicitors for HEU.
[26] In Gulf Islands Navigation Ltd.
v. Seafarers International
Union of North America (1959), 18 D.L.R. (2d) 216, aff'd 18 D.L.R. (2d)
625, Wilson J., discussed the role of the reviewing judge:
If there was non-disclosure the order must be dissolved. But even if
there was full disclosure, I do not think it can be assumed, as it might
be in reviewing a contentious proceeding, that all facets of the facts
and all applicable law were canvassed before the Judge who made the
order. Manson J. had before him many pages of affidavits which appended
exhibits. In the absence of opposing counsel, and with the utmost good
faith on the part of the applicant, it is still entirely possible that
my learned brother might, on an ex parte application, have overlooked
some part of the material or some legal authority which would have led
him to refuse the order. If he had done so and this were pointed out to
him on motion, I am sure he would wish to rescind his order, and,
standing as it were, in his shoes (vide Kay J. in Bidder v. Bridges) I
think I should do the same thing. In doing so, I would not feel that I
was purporting to overrule him in the exercise of his discretion - I
would feel that I was exercising discretion in regard to matters not
brought to his notice. But if there is nothing to indicate that he did
not perceive and consider all relevant facts and law before exercising
his discretion, then, even although I might have decided differently, I
should not interfere.
[emphasis added]
[27] Although his judgment was
affirmed on appeal Sidney Smith,
J.A. said at p. 631:
In view of the principles that I think govern, I hold that Wilson J.
unduly restricted the role he should play in examining Manson J.'s order
when he said he would merely enquire whether Manson J. had had all
material facts before him and whether he had overlooked any settled
principle of law.
[28] Mr. Baugh, for HEU on this
application, says that the Order
should be set aside because of the misrepresentation of Mr. Howard for
Compass at the ex parte hearing. He says that a brief phone call to the
office of Granville & Pender Labour Law Office would have assisted Mr.
Howard in determining if that firm could accept service on behalf of
HEU. Rule 11(2)(c) of the Rules of Court specifies that service on a
trade union is effected by leaving a copy of the document with a
business agent of the trade union. He says that "This failure to
comply
with the Rules of Court on service makes it especially improper for
counsel for the Plaintiffs to invite the Court to draw any inferences
about the Defendants' failure to appear. It was especially
inappropriate given that the materials were delivered on the day of the
hearing."
[29] The facts concerning the urgency
to obtain this order were
before the chambers judge. By the time of the court appearance on the
application the job fair scheduled for Friday, July 25, 2003, in
Victoria was in progress. Mr. Howard says he left his office at 1:30 to
come to the court house. If there had been picketers disrupting that
job fair, evidence or submissions would no doubt have been made to the
chambers judge, and evidence of such picketing would have been before
me. I therefore conclude that no pickets were present at the Friday,
July 25, 2003, job fair. The next job fair was scheduled for Tuesday,
July 29, 2003.
[30] There were several options open
to Compass. Compass could
have applied for short leave on Friday morning returnable for late in
the day, or as there did not appear to be any disruption at the Victoria
job fair, at least by the time of the court appearance, the plaintiff
could have, on Friday, applied for short leave returnable for Monday,
July 28, 2003. Plaintiff's counsel could have sought an order for
substitutional service if he was concerned about being able to find the
appropriate union officer to serve.
[31] The only information before me
that was not before the
chambers judge and drawn to her attention is the fact that Granville &
Pender Labour Law Offices were not the exclusive solicitors for HEU.
There is nothing to indicate that the chambers judge did not perceive
and consider all relevant facts and law on the question of urgency and
service before exercising her discretion. I do not think that the
judgment of Sidney Smith, J.A. in Gulf Islands should be taken to mean
that the reviewing judge ought to interfere with a discretionary aspect
of an order just because the reviewing judge on the same facts and law
might have decided the case differently. Here I cannot identify any
fact or legal proposition not before the chambers judge and now before
me on the issue of urgency or the appropriateness of proceeding without
notice to the defendants. I do not think that if the chambers judge had
been told that Granville & Pender Labour Law Office was not the
exclusive solicitors for HEU it would have affected her decision
particularly because Mr. Howard was dealing with Granville & Pender law
office on matters between Compass and HEU. I therefore conclude that I
ought not to interfere with the Order on this basis, even if I might
have decided differently.
Does this court have jurisdiction or is the dispute a matter over which
the British Columbia Labour Board has exclusive jurisdiction?
[32] Compass says it was unaware of
the activities of Lisa Murao
and her colleagues, who were providing information to job fair
participants as they arrived or left the job fair. Compass does not
object to such activity and concedes that the injunction if it is not
set aside should be amended to permit such lawful activity. But Compass
says the picketers, not Ms. Murao and her colleagues, were engaged in a
political campaign and their activities could not be described as
legitimate organizational activities concerning a labour dispute.
[33] HEU argues, correctly, that the
Code applies to
pre-certification relationships, such as organizing campaigns. Compass
does not dispute this assertion (KTL Transport Inc., BCLRB No. B485/99).
But if there is no dispute, as that term is defined in the Code, then it
cannot be said that exclusive jurisdiction over issues concerning
picketing resides with the Labour Relations Board. According to s. 136
of the Code, the Labour Relations Board only has exclusive jurisdiction
where there is a dispute as defined by the Code. Here it is argued by
Compass that the picketers were engaged in a political campaign, not a
labour dispute, and consequently this Court, not the Labour Relations
Board, has jurisdiction.
[34] Dispute is defined in s. 1 of the
Code:
[A] difference or apprehended difference between an employer or group of
employers, and one or more of his or her or their employees or trade
union, as to matters or things affecting or relating to terms or
conditions of employment or work done or to be done.
[35] HEU did have a dispute with
Compass. HEU had filed an
unfair labour practice complaint against HEU in connection with the
September 12, 2002, memorandum described above. HEU had various
applications pending before the Labour Board for workers employed by
Compass at various health care facilities. HEU was already certified
for at least one of the Compass facilities. On the other hand, Compass
job fairs sought employees for a variety of positions, some of which
were entirely unrelated to the health sector and accordingly unlikely to
engage the organizational activities of HEU. I conclude that the
purpose of the pickets was to dissuade individuals from applying for any
sort of employment with Compass. The advertisements for the job fairs
do not specify the particular facilities Compass seeks employees for and
some of those facilities do not relate to jobs previously performed by
HEU workers. The pickets attempted to, and did, frustrate Compass's
recruitment efforts insofar as the job fair was cancelled. Another
relevant consideration is the content of the signs. The signs relate to
HEU's opposition to Bill 29. The signs cannot be said to relate to
organizational efforts of HEU. For example, "Honk for health care," or
"Liberals love Compass," a reference presumably to the present British
Columbia Liberal government, which enacted Bill 29. At the hearing
before me, HEU took the position that it took no responsibility for the
pickets, and also did not admit that the picketers were HEU members.
[36] HEU relies on the decision of Maz
Tudor Inns Ltd. et al. v.
CASAW et al., [1985] 68 B.C.L.R. 396, (C.A.) which held that a dispute
concerning non-certified employees who had sought the assistance of a
union to support an allegedly wrongfully fired employee engaged the
jurisdiction of the Labour Board and not the court. Maz Tudor is
distinguishable on its facts. Here HEU cannot argue that the pickets
relate to a dispute with Compass, or were organizational in nature, both
of which engage the jurisdiction of the Labour Board, and at the same
time disavow any knowledge or responsibility of the activities or
identities of the pickets. In other words if HEU takes the position
that the pickets were part of its general organizational endeavours,
then it cannot distance itself from the pickets in its submissions to
this court, which it did. I conclude that the pickets were engaged in a
political demonstration concerning privatization of health sector jobs,
a matter over which this court does have jurisdiction. This is similar
to the situation in Certispec Services Inc. v. Internaiton Longshor and
Warehouse Union, Local 518, [1998] B.C.J. No. 2318 (S.C.) in which
McEwan J. held that the labour relations board did not have jurisdiction
over the application to restrain the defendant union from picketing or
creating a nuisance proximate to Certispec's business. The Labour
Relations Board did not have exclusive jurisdiction because the
picketing did not relate to a dispute between Certispec and its own
employees, but rather to the Union's opposition to the contracting with
non-union workers (which Certispec did do). Although the activities of
the union in the Certispec case were more political in nature than the
activities of HEU, the same finding with respect to jurisdiction applies
to the present case.
[37] The activities of Lila Murao and
her colleagues were
organizational in nature, but Compass concedes that its application was
not based on their conduct and the Order was not intended to enjoin
their organizational activities.
[38] I reject the jurisdictional
argument made by HEU for setting
aside the ex parte order.
Did Compass materially misrepresent facts to the chambers judge and if
so should the ex parte order be set aside on that ground?
[39] In this part of my judgment I am
not addressing the alleged
misrepresentation concerning "service" of the ex parte application
materials on the Granville & Pender Labour Law Office. Rather, I now
address HEU's submissions that Compass made material misrepresentations
or material non-disclosure concerning the ongoing disputes between the
parties, most importantly the unfair labour practice complaint filed at
the Labour Board.
[40] It is argued by HEU that an
injunction granted ex parte
should be dissolved if there was some material or authority which would
have led to refusal of the order and that material or authority was
overlooked at the ex parte hearing. I accept the correctness of this
proposition (Evans v. Silicon Valley IPO Network, 2003 BCSC 954, at ¶34
and cases cited therein.) However it is not correct to say that where
the reviewing judge is hearing the matter de novo, as here, that the
reviewing judge is bound to dissolve the injunction upon proof of
material misrepresentation or non-disclosure regardless of the effect of
all the evidence including new evidence adduced at the hearing.(Bank of
Credit and Commerce at ¶ 39 and 40)
[41] HEU alleges in its Outline that
Compass failed to disclose
two material facts:
(a) that HEU is currently actively organizing Compass employees in
the
health care sector in British Columbia.
(b) that HEU filed an unfair labour practice complaint dated January
22, 2003, at the Labour Board.
[42] These allegations of
misrepresentation or non-disclosure
relate to the jurisdictional issue.
[43] Compass's Outline, filed in
support of the ex parte
application, and brought to the attention of the Chambers Judge, states:
Subsequent to Compass Group obtaining Contracts to provide food and
housekeeping services in certain health facilities in which HEU had
previously held certifications, HEU has made certain applications to the
LRB to be certified as bargaining agent for the Compass Group employees
or to oppose competing applications for certification. Compass Group is
opposing those applications. HEU holds one certification at a Compass
Contract facility but the conduct sought to be restrained is, by its
nature, unrelated to labour relations at that facility, where there is
no strike in progress.
[44] The statement in the Outline that
"there is no strike in
progress" is not in my view relevant to the jurisdictional issue. The
Supreme Court does not gain jurisdiction because no strike is in
progress, as is discussed above. The Outline quoted above did convey to
the Chambers Judge that Compass and HEU were engage in the
organizational process. Compass did not disclose to the Chambers Judge
that it was the subject of an unfair labour practise complaint filed by
HEU.
[45] The question comes down to
whether the undisclosed fact is
material. The memorandum that is the subject of the unfair labour
practise is set out above. The Compass memorandum exhorts Compass
employees not to join the HEU because the HEU is engaged in a law suit
to terminate Compass contracts and therefore give Compass jobs back to
the HEU members who previously held them. Without commenting on
whether this memorandum does constitute an unfair labour practice, I
would say that it relates to organizational issues. As the chambers
judge accepted that this court has jurisdiction in this case, and as I
have already found that such jurisdiction is based on the activities of
the unidentified picketers being political and not organizational or
arising out of a dispute so as to be within the exclusive jurisdiction
of the Labour Relations Board, I conclude that the unfair labour
practise issue would not be relevant to the chambers judge's
considerations. I therefore reject HEU's argument that the Order should
set aside because of the non-disclosure by Compass of HEU's unfair
labour practise complaint.
Did the activities of the pickets constitute tortious conduct?
[46] Compass alleges that the pickets'
activity constituted
tortious conduct in several ways:
·
The pickets interfered with the
Compass' contractual relations with the Plaza Hotel.
·
The pickets committed the tort of
intimidation.
·
The pickets committed the tort of
nuisance.
·
The pickets defamed Compass.
[47] Before considering whether on the
evidence, any of these
torts have been made out to the requisite standard of proof for an
interim injunction, I observe that picketing is not an inherently
unlawful activity. The right to picket enjoys the protection of the
Charter and is included within the constitutional right to freedom of
expression. The right to picket was described this way in Retail,
Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada
Beverages (West) Ltd., 2002 SCC 8, ¶32 and ¶ 103 per MacLachlin C.J.C.
and Lebel J.:
Picketing, however defined, always involves expressive action. As such,
it engages one of the highest constitutional values: freedom of
expression, enshrined in s. 2(b) of the Charter. This Court's
jurisprudence establishes that both primary and secondary picketing are
forms of expression, even when associated with tortious acts: . . . The
Court, moreover, has repeatedly reaffirmed the importance of freedom of
expression. It is the foundation of a democratic society. . . . The
core values which free expression promotes include self-fulfillment,
participation in social and political decision-making, and the communal
exchange of ideas. Free speech protects human dignity and the right to
think and reflect freely on one's circumstances and condition. It
allows a person to speak not only for the sake of expression itself, but
also to advocate change, attempting to persuade others in the hope of
improving one's life and perhaps the wider social, political, and
economic environment. [internal citations are omitted]
At this point we may usefully review what is caught by the rule that all
picketing is legal absent tortious or criminal conduct. The answer is,
a great deal. Picketing which breaches the criminal law or one of the
specific torts like trespass, nuisance, intimidation, defamation or
misrepresentation will be impermissible, regardless of where it occurs.
Specific torts known to the law will catch most of the situations which
are liable to take place in a labour dispute. In particular, the
breadth of the torts of nuisance and defamation should permit control of
most coercive picketing. Known torts will also protect property
interests. They will not allow for intimidation, they will protect free
access to private premises and thereby protect the right to use one's
property. Finally, rights arising out of contracts or business
relationships also receive basic protection through the tort of inducing
breach of contract.
. . . the new rule acknowledges that the expressive activity involved in
conveying information and trying to persuade will not be considered a
sufficient ground for enjoining picketing. It is reasonable to expect,
however, that the realities of labour relations will inject their own
limits to prevent the unchecked spread of picketing beyond the primary
parties.
Interference with Contractual Relations
[48] With the principles stated in the
Pepsi judgment in mind, I
turn next to examine the assertion by Compass that HEU interfered with
its contractual relations.
[49] An applicant for an interlocutory
injunction must establish
that there is a serious question to be tried. But where, as here, the
injunction may amount to a final determination of the action, the
appropriate threshold test of merit, for the injunction is whether the
applicant has established a strong prima facie case. (RJR-MacDonald Inc.
v. Canada (Attorney General), [1994] 1 S.C.R. 311; Prince Rupert Grain
Ltd. v. Grain Worker's Union, Local 333, 2002 BCCA 641.) This action is
substantially concerned with preventing the defendants from picketing
the plaintiffs' job fairs. That objective has been fulfilled by the
interim injunction. Any other claims included in Compass' statement of
claim are minor and ancillary to the central point of the law suit. I
conclude that the appropriate test to be applied to the evidence is a
strong prima facie case.
[50] The applicant must also establish
that it will suffer
irreparable harm if the relief is not granted. The Court must also
assess the balance of convenience to the parties if the relief is
granted compared to a refusal to grant the relief. In this case I have
found that Compass has not made out a strong prima facie case that the
activities of the defendants were tortious and consequently it is
unnecessary to examine the issues of irreparable harm or balance of
convenience.
[51] The ingredients of the tort of
interference with contractual
relations are: the existence of a valid and enforceable contract;
awareness by the defendants of the existence of a contract; breach of
the contract procured by the defendants; wrongful interference; and
damage suffered by the plaintiff (Potter v. Rowe, [1990] B.C.J. No. 2912
(S.C.)). It is not seriously in contention that there is evidence of
the first three ingredients in connection with the contract between
Compass and the hotel, but HEU argues that picketing cannot constitute
the unlawful or wrongful means required to constitute the third element
of the tort. Donald J.A said in Prince Rupert Grain at ¶ 46 that to
constitute the "unlawful means" element of the tort of inducing breach
of contract, ". . . it is necessary, according to my reading of
Pepsi-Cola, to show some act other than peaceful persuasion itself,
which is per se lawful."
[52] Brenda Brown describes the
conduct of the pickets in her
affidavit:
They were congregating regularly in front of and blocking the public
entrance to the Hotel. Some of the slogans on the placards were
directed to Compass Group and were false and misleading.
The protesters were also shouting slogans at people driving and walking
past the Hotel, including people wishing to enter the Hotel. I verily
believe that the presence of the picketers and some of the comments made
by them to persons seeking to enter the Hotel, some of whom were likely
attending the Job Fair, may have persuaded them not to enter the Hotel.
The protesters created a loud disturbance and caused confusion in front
of the Hotel entrance, which I believe would have discouraged any
potential applicants or patrons of the Hotel from entering the premises.
The protesters also incited passing cars to honk their horns, adding to
the overall confusion.
The manager of the Hotel approached me at this time and expressed that
he was uncomfortable with having protesters actively picketing outside
the Hotel. He requested that Compass group halt the Job Fair activities
and vacate the premises as soon as possible. The manager of the Hotel
was very upset with the protesting, and expressed concern that the
general public would be confused as to whether the protesting was
directed towards the Hotel.
I proceeded to stop the Job Fair. . . .
[53] As already noted there is a
dispute on the evidence as to
whether the picketing did result in any potential job applicants turning
away. The strongest evidence on this point is Brenda Brown's statement,
that in her belief the pickets would discourage an applicant.
[54] In order to establish a strong
prima facie case Compass
would have to establish the element of "wrongful means".
Picketing in
and of itself is not wrongful. In my view the pickets would have to be
impeding access to the Hotel, threatening Hotel patrons, or acting in an
unruly or coercive manner. There is not a strong prima facie case that
the business of the Hotel was unreasonably interfered with by the
Pickets. The sensitivity of the Hotel manager, while understandable,
does not render the actions of the pickets engaged in a political
protest unlawful. Similarly there is not a strong prima facie case,
even on Ms. Brown's evidence, that any job applicant was deterred from
attending the job fair. I therefore find that the plaintiff has not
established the element of wrongfulness.
[55] HEU also argues that there is no
damage suffered by Compass
due to the breach of the contract with the hotel. The damage that
Compass says it will suffer is the damage caused by its inability to
staff its contracts with the health authorities and other entities for
whom it is contractually bound to provide service. HEU argued that this
alleged loss cannot satisfy the damage element, because the damages
alleged by Compass result from a breach of a contract that is different
from the contract upon which the plaintiff founded its claim for
interference with contractual relations. No authority on this point was
cited by either side. Certainly, in the usual course, damages for
interference with contractual relations compensate for the loss of the
contractual bargain interfered with, not for the loss of related
bargains that might be affected by the disruption of the original
bargain (Philip H. Osborne, The Law of Torts (Toronto: Irwin Law,
2000)). There appears to be no logical reason why foreseeable
consequential damages should not be recoverable for this tort,
particularly in this case, where arguably the disruption to the business
dealings of Compass was one of HEU's objectives. However, given my
finding on wrongful interference, it is not necessary for me to make a
finding on this issue.
[56] Accordingly on the evidence I am
not satisfied that there is
a strong prima facie case that HEU has interfered with the contractual
relations of Compass.
Nuisance
[57] Compass has not proven the tort
of private nuisance because
to do so, it is necessary that the nuisance have occurred on the private
property of the plaintiff (Cicconi v. Van Idour, [1985] B.C.J. No 903
(S.C.)). Here, the picketing occurred on a public sidewalk. To
constitute a public nuisance, it was held in Cicconi at page 4
A nuisance occurred, the public was affected by it, and the plaintiff
suffered particular damage other than and beyond the general
inconvenience and injury suffered by the public.
[58] In Cicconi the Court found that
an action in public nuisance
must fail, as the public was not inconvenienced or endangered, or
otherwise affected, given that the number of people affected was not
large enough to constitute the public.
[59] In this case there is no evidence
that meets the requisite
standard of proof that the public was damaged beyond the general
inconvenience caused by congestion. Compass says that although the
picketing was undertaken on the public sidewalk, the commotion and
obstruction constituted a public nuisance that interfered with the
normal use of the hotel. The picketing had the intended effect - the
job fair was terminated.
[60] A distinction must be drawn
between the right of the pickets
to publicly express their views about Compass, and to try and persuade
prospective Compass job applicants not to work for Compass on the one
hand, and actual interference in the business of Compass, on the other
hand. If the presence of the pickets impeded or obstructed the
entranceway to the hotel such that prospective job applicants could not
enter the hotel, that conduct would indeed be actionable public nuisance
at the instance of Compass. I have already said that the evidence here
does not satisfy me there is a strong prima facie case that any job
applicant was deterred from attending the job fair. I reject nuisance as
a basis for the injunction.
Intimidation
[61] The tort of intimidation is not
made out on these facts.
Defamation
[62] The parties agree injunctive
relief to restrain alleged
defamation is an exceptional remedy which should be granted in only the
rarest and clearest of cases. The Court should only issue such relief
when the words complained of are so manifestly defamatory that any jury
verdict to the contrary would be considered perverse by the Court of
Appeal. (Lasik Vision Canada Inc. v. TLC Vancouver Optomoetric Group
Inc., [1999] B.C. J. No. 2834, ¶ 20 (S.C.))
[63] In addition, there must be
evidence of an intention, or
grounds to infer, that the alleged defamation will be repeated or
published R.T. Investment Counsel Inc. v. Werry, [1999] BCJ No. 756
(S.C.) paragraph 15.
[64] Of the statements recorded by
Compass from the placards
carried by the pickets, only the following are alleged to be defamatory:
· Compass Hates Employees
· Laundry Stains Love Compass
· Bloody Sheets Stay Bloody
With Compass
· Patients or Profits
(the "Defamatory Slogans")
[65] The Order enjoins HEU from
"publishing orally or in writing,
including by means of placards, statements defamatory of the
Plaintiffs." Compass conceded at the hearing that this clause of the
Order was too broad. Compass proposes the following language: "HEU
shall not publish the Defamatory Slogans or any words similar thereto."
[66] In Lasik Macaulay J. discussed
the onerous requirements for
the test to enjoin defamation prior to trial. He said:
The roots for this test can be traced from the often quoted early
English decision in Bonnard v. Perryman, [1891] 2 Ch. 269 (C.A.):
Until it is clear than an alleged libel is untrue, it is not clear that
any right at all has been infringed; and the importance of leaving free
speech unfettered is a strong reason in cases of libel for dealing most
cautiously and warily with the granting of interim injunctions.
The traditional balance of convenience comprising part of the American
Cynamid test is inapplicable in the circumstances....
[67] Brenda Brown says in her
affidavit "Some of the slogans on
the placards were directed to Compass Group and were false and
misleading." On the application before me there was no evidence at
all
adduced by the defendants to support the truth of the impugned
statements or to characterize them as fair comment. There is no onus on
Compass to disprove the negative in the absence of some evidence from
the defendants.
[68] HEU pleads in its statement of
defence that the words
complained of were fair comment and made in good faith on a matter of
public interest. The message which the pickets intend to convey is that
Compass's work is inferior and that Compass treats its employees poorly.
Although I am troubled by the absence of evidence on this point, I do
not believe the message which I conclude the pickets intended to convey
is necessarily defamatory to the standard of proof which I am required
to apply. The cautious approach to such injunctions suggests that the
rather general statements made by the pickets, in the context of the
obvious connection to HEU's political opposition to Bill 29, ought not
without more specific allegations, be restrained. Furthermore I do not
think that such general statements would necessarily cause Compass
irreparable harm.
Should the Order be set aside?
[69] I have concluded that this Court
does have jurisdiction over
the alleged claims. I have also concluded that I ought not to interfere
with the discretionary decision made by the chambers judge that the
application was urgent and appropriately dealt with on an ex parte
basis. I have concluded that there is not a strong prima facie case
that the activities of the defendants were tortious. I have also
concluded that is would not be appropriate to continue the injunction,
even as Compass suggests it be amended, to enjoin future defamatory
statements. Consequently the Order will be set aside in its entirety.
Application to strike part of affidavit relied on
[70] HEU objects to the admissibility
of certain portions of the
affidavit evidence relied on by Compass. I have not found it necessary
to rely on any of the impugned evidence.
Costs
[71] The parties have requested an
opportunity to make
submissions concerning costs following delivery of these reasons. I
will hear those further submissions at a time convenient to all counsel.
"N. Garson, J."
The Honourable Madam Justice N. Garson