Strikes, Picketing and Injunctions in Quebec
Roy L. Heenan *
In the recent decision rendered by the Court of Appeal in the
case of Gaspg Copper Mines v. United Steelworkers of America,1 it
is of interest to note the following topical comments by the Judges
on labour relations in this Province.
Brossard, J.:
I1 est d~cevant d’atre oblig6 de constater qu’A une 6poque et dans un pays
qui se disent civilis~s et ofi le recours h la conciliation est impos6 comme
devoir par un l~gislateur anxieux d’assurer la solution pacifique des conflits
d’int~r~ts, des hommes ayant assum6 la lourde responsabilit6 de diriger et
. eux-mgmes, au
prot~ger les travailleurs cherchent encore h se faire droit
m6pris fondamental de la loi, par le recours 4 la violence et 4 la force
brutale, par la violation volontaire et pr6m6dit6e des ordres des tribunaux
charges d’appliquer la lol.
Taschereau, J.:
Toutefois, le droit de gr6ve ne confhre aucun privil~ge particulier aux
ouvriers. Ils demeurent, comme les autres citoyens, soumis aux mimes lois
et, comme ceux-ci, tenus de r~pondre de leurs d4lits devant des cours de
juridiction civile et criminelle.
Malheureusement, trop de chefs syndicaux et de travailleurs m~connaissent
ce principe de base et ont recours, pour atteindre leurs fins, aux menaces, h
l’intimidation, A la violence, au sabotage ainsi qu’A d’autres d6lits de mame
nature contre la personne et les biens d’autrui.
Si les tribunaux tol6raient de telles infractions, au m6pris des principes les
plus 616mentaires de l’ordre et de la justice sociale, il s’ensuivrait que toute
personne croyant avoir une juste r~clamation contre une autre pourrait
.galement tenter de se faire justice A elle-mgme et d’user des mames pro-
c~d~s. Ce serait dire que la loi de la jungle pr6vaudrait, que l’anarchie serait
substitute h l’ordre et que la soci~t6 toute enti re vivrait sous un r6gime de
terreur.
Pour rem~dier h ces dangers, la loi met h la disposition des tribunaux deux
rem~des prineipaux dont Pun, Pimjonction, qui a pour but de prdvenir
l’infraction, alors que l’autre, laction en dommages-int~rAts, a pour objet
d’6tablir la responsabilit6 des d~fendeurs et de fixer une compensation
ad6quate pour les dommages r~sultant des infractions dont ils se sont rendus
coupables.
Of the Bar of Montreal.
As of yet unreported Judgment of the Quebec Court of Appeal No. 6587
(Que.) rendered 16 March 1967.
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What make these statements of particular importance is that
they were written at the very time that organized labour has
launched a determined attack against the use of injunctions
in
labour disputes.
The main argument invoked against the use of injunctions appears
to interfere with the
to be that they are used –
strikers’ legal right to picket at the time of a strike.2
and granted –
The purpose of this study is to examine the use of injunctions
in Quebec in the light of the above criticism and to review the
jurisprudence of our courts in this connection.
The real problem which presents itself is that labour appears
to hold a different concept of the purpose of picketing and strikes
than that recognized by law. Thus, when an injunction is granted
to apply the law as it actually is, unions feel that they have been
treated unjustly by the courts. The law as it has developed is that
after a given time of negotiating, employees may withdraw their
services from the employer and attempt peacefully to persuade their
fellow workers to do the same. Further, they may picket for the
purposes of informing the public of their complaint against the
employer. Lastly, the law provides that no person shall cease to
be an employee for the sole reason that he has ceased to wyork in
consequence of a strike (The Labour Code 1964 R.S.Q. Ch. 141 s. 98).
Labour, however, has come to consider its right to strike and
picket as something sacred. The mystique of the picket line has
developed to such an extent that the strikers seem to believe that
the picket line must be respected and that if anyone crosses it, he
does so at his peril. Not only has the object of the picketing become
to prevent any other employees from working, but also to prevent
the employer from operating his enterprises at all and, to this end,
to prevent any supplies from reaching the enterprise and any fin-
ished goods from leaving it. Some unions go further and ‘believe
that they are entitled to forbid all access’ to the property –
even
2 In other jurisdictions the objection is also raised that injunctions are granted
ex parte on affidavit evidence alone. In Quebec the interlocutory injunction is
granted only after proof and hearing (of which due notice has been served in
advance on the defendant). Article 753 of the Code of Civil Procedure does
provide that “In case of urgency, a Judge may nevertheless grant it provisionally
before it has been served, but for a period that will not exceed ten days”. Within
ten days the opposite party must be heard and can force plaintiff to make his
proof. As a matter of fact, few provisional injunctions are granted for more
than three or four days in view of the desirability of allowing the defendant to
hear plaintiff’s proof and present his defense.
No. 31 PICKETING AND INJUNCTION IN QUEBEC
369
by the owner or his representatives –
until the strike is settled.
Since these goals are not recognized by law, they can only be achieved
(In this connection one can only
by Violence and intimidation.
deplore the direction that has been given to many ‘ strikes by the
usually permanent employees of
p.ofessional “Strike Directors” –
the unions who have not been involved in the negotiations and
whose purpose is to direct the activities against the employer. In
many cases it is these professionals who encourage the employees
to believe’that acts which would be illegal and criminal if done by
the individual are legal when done by the collectivity and are sanc-
tioned by the right to strike.3)
If the law is not respected, the right to enjoin must exist, be
exercised, and enforced. Injunctions are the only effective means
of dealing with situations where a mob of picketers has taken the
law into its own hands, to forbid free access by the owner to his
property. It is not the exercise of the right of picketing that leads
to restraint by injunctions but the abuse of that right.
The injunction is an exceptional measure which should be issued
only after serious proof has been made that the peaceful picketing
is serving merely as a cloak for illegal (and often violent) acts.
But in a Province that over the last few years has known much
violence’and even more illegality at the occasions of strikes it is
submitted that to eliminate the injunction would merely return us
to the law of the jungle referred to by Mr. Justice Taschereau.4
One example of what could happen if injunctions were abolished
and of what does happen when the authorities fail to enforce the law
Will suffice.
A strike by the syndicates of the Confederation of National Trade
Unions (C.S.N.) against five mills of the Dominion Textile Com-
pany Limited started in March and April 1966 at the different
mills, and continued until August 30th, 1966. At the Magog Mill,
where two thousand employees were on strike from the 13th of April,
1966, the supervisors and guards were expelled from the mill by
the strikers on the 15th of April 1966 and from that date until the
30th of August not one representative of the Company was allowed
3 The following statement by Hyde, J. in the Gaspi Copper case (Supra, foot-
note 1) is particularly apt*
“The principal victims. of this sorry situation are the workers themelves and
their families who were led-and encouraged by Appelants’ representatives ‘to
.believe that they could ignore ,the law to achieve their legitimate ends. -They
were entitled to more responsible leadership.”
,
4 In the Gasp6 Copper case, see supra, footnote 1.
McGILL LAW JOURNAL
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on to the property,5 (in spite of injunctions and proceedings for
contempt of court, all of which were successful). For those four
and one half months the Company was powerless to protect its
property, there was much damage to its machinery through lack
of maintenance and there was no surveillance against fire which
could have meant the complete destruction of the mill with the
consequent loss of jobs.0 What makes the case even more startling
is that there was never any question that the Company would
attempt any production during the strike –
the strikers merely
were determined to see that no one entered, and the police force
at Magog (11 men) were powerless to enforce the injunction.
The reasoning behind this totally irresponsible act of the Syndi-
cate is hard to follow although it was said that it was hoped that
insurance companies would put pressure on the Company to settle.
If the above case was an isolated example of labour irrespon-
sibility in Quebec it would in itself be serious, but similar cases
involving violence and complete disregard for law are manifold,7
to say nothing of the increased incidence of illegal strikes and/or
“study sessions”. At the time of writing, for instance, two employees
have been stabbed and seriously wounded on a picket line in an
illegal strike at Canadian Vickers Ltd.
This flagrant defiance of the law in the Province by some
and the failure of the authorities to enforce the law –
unions –
leads to a more serious question for the lawyer, namely whether
the rule of law exists at present in strike situations in view of the
fact that in many cases the law can be broken with impugnity, the
final settlement providing for a general amnesty. In some cases the
governments have been party to these agreements.
5It is interesting to note that on the same day or within a day or two the
same tactic was invoked by the syndicates against the Company mills in Sher-
brooke and Drummondville. In some of these after the first few weeks, the
Insurance Company insuring the mills was able to persuade the syndicate to
allow a guard in to the plant –
but only if he was accompanied by a union
member who had to be paid five dollars an hour ! At Magog even this was not
allowed.
6 At one Sherbrooke Mill a fire did break out amongst some of the supplies and
the city firemen themselves had to negotiate before being allowed to enter. The
damage was substantial.
7 See for instance the acts reported in Griffin Steel Foundries Ltd. v. Syndicat
des M6tallurgistes [1959] C.S. 566, in Gasp6 Copper Mines v. United Steelworkers
of Amnerica [1965] C.S. 51, in Seafarers International Union v. Upper Lakes
Shipping Limited [1964] B.R. 737, in Acton Vale Silk Mills Ltd. v. LdveillU et al
(1940) 78 C.S. 19.
No. 3] PICKETING AND INJUNCTION IN QUEBEC
371
It is not surprising, therefore, in this context to find a Quebec
judge reminding leaders of an international union of the late Presi-
dent Kennedy’s statement of the rule of law.8
The educated man knows that for one man to defy law or Court order he
does not like, is to invite others to defy those which they do not like, leading
to a breakdown of justice and order. He knows that every fellow man is
entitled to be regarded with decency and treated with dignity. Any educated
citizen who seeks to subvert the law, to suppress freedom, or to subject other
human beings to acts that are less than human, degrades his heritage, ignores
his learning and destroys his obligation. Certain other societies may respect
the rule of force, we respect the rule of law.
To this Mr. Justice Lacourci~re might have added Lincoln’s
dictum: 9 “There is no grievance that is a fit object of redress by
mob law”.
There follows a review of the Quebec jurisprudence of the use
of injunctions in strike situations.
Injunctions in an Illegal Strike
There has been an interesting development in this Province in
the judicial reasoning as to whether picketing, even if peaceful,
should be enjoined if it occurs in support of an illegal strike.
Whereas in the late 1950’s it was generally accepted that peaceful
picketing would not be enjoined, it has more recently been held that
if the strike is illegal, the picketing becomes illegal also and should
therefore be restrained.
The earlier jurisprudence began with the case of Windsor Shoe
and Slipper Company v. Union des Ouvriers de la Chaussure, Local
500 10 which held:
A judgment dismissing an application for an interlocutory injunction on
the ground that the defendant Union had not committed any illegality
or abuse in the manner of picketing, and finding that the plaintiff company
failed to prove threats, intimidation or violence, should be maintained, if a
prima facie case was not shown.
Whether a contract between the parties is legal or null and whether the
strike was legal or illegal are questions to be decided on the merits of
the case.
The decision which was most often cited was that rendered by
Mr. Justice Montpetit in Borek v. Amalgamated Meat Cutters and
sCited by Mr. Justice Lacourci6re in Gasp6 Copper Mines Limited v. United
Steelworkers of America [1965] C.S. 51 at 95.
,9 Address before the Young Men’s Lyceum of Springfield, Illinois January 27th
1838.
10 [19543 B.R. 266.
McGILL LAW JOURNAL
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Butcher Workmen of North America’1 which, ‘although issuing an
injunction, held:
In my opinion, and although there are very few instances in this province
Athat I am aware of where ‘peaceful picketing’ took place’ without astrike
(legal or illegal) being called or being in the process of being called, I still
feel that, in law, one can exist and- be resorted to without the other.
Both of the above cases were cited with approval by Mr. Justice
Demers in Jqrry Automobile Limit6e v. International Association of
Machinists, Lodge 712, A.F. of L.’ 2 and in Louis Donolo Inc.. v. The
Building and Construction Trades Council of Montreal et al 13 and
by Mr. Justice Brossard in a comprehensive study in Oberman et
at v.- Amalgamated Meat Cutters and Butcher Workmen of North
America et al.14
In -this latter case, which unfortunately remains unreported, the
petition for injunction was dismissed without costs but Mr. Justice
Brossard added:
Having regard to the foregoing, it would therefore, in the present instance,
be premature to stop by interlocutory injunction all acts which might be
interpreted as being acts of picketing on the ground of the illegality of
the strike. In
the present instance, the so-called strikers having not
themselves been heard at the request of either party, it is neither possible
nor would it be in the interest of justice to hold at the present stage that
they actually went on Strike with a view to obtaining better conditions of
employment and did not, in . fact; definitely ‘abandon
their employment.
If they went on strike, then there is no reason to doubt thatthe’ essenitial
purpose of the following picketing, was
the
Petitioners, to grant them better conditions of employment and the legality
or illegality of thd strike would then seriously affect the legality or illegality
of the acts of, picketing reproached. If they were not on strike but had
definitely quit their employment, then the legality of the acts 6f picketing
must be considered in the light of these acts alone.
Finally, in a 1958 decision, Mr. Justice Challies (as he then -was)
while issuing an injunction in the case of Hyde Park Clothes Limited
their employers,
to force
11 11956] C.S. 333, Mr. Justice. Montpetit in coming to his decision considers
Oakville Wood Specialties Ltd. vs Muktin [19501 O.W.N..735, where an injunction
was issued to eliminate picketing”during an illegal strike and Genera Dry
Batteries of Canada Ltd. v. Brigenshaw (1951) 4 D.L.R. 414 and Peerless
Lauzdi’y and Cleaners Ltd. v. Laundry and Dry Cleaning Workera’Union , (1952)
4 D.L.R. 475 which; while both issuing injunctions, stated that peaceful picketing
was legal during an illegal strike. These last two Common law decisions are
now of questionable value in view of the Gagnon v. Foundation Maritime Ltd.
dcision of the Supreme Court of Canada, infra, and the several decisions which
have followed it.
‘2 Unrfiported JUdgrhbnt C.S: Mbfhtreal 400,514 rendered 15 October lOSS.
13Unreported Judgment C.S. Montreal 428,736 rendered
9 October 1957.
14 Unreported Judgment C.S. Montreal 388,146 rendered ‘7 March. ‘i95.’
No. 3] PICKETING AND INJUNCTION IN QUEBEC
373
V. The Amalgamated Clothing Workers of America et al ‘ stated:
The court should not by injunction intervene in a labour dispute in favour
of either side unless it is absolutely necessary to do so.
Peaceful picketing
is not illegal and cannot be restrained by way of
injunction so long as it is exercised in a way not contrary to the Criminal
Code, local by-laws or regulations, or any article of the Civil Code.
Peaceful picketing per se does not become illegal because it is in aid of
an illegal strike.
In the present case the court considers that it should not decide whether
or not the strike or strikes were illegal…
In 1961, however, the Supreme Court, on appeal from a judgment
of the Supreme Court of New Brunswick, upheld an injunction
restraining all picketing on the ground that the strike was illegal:
Gagnon et al v. Foundation Maritime Limited.6
The facts of the case were that certain union organizers requested
recognition of their unions from the plaintiff company. The company
refused the request on the grounds that they were not certified by
law. A picket line brought the operations to a halt and the company
obtained an injunction to stop the picketing. The Supreme Court
of Canada confirmed the decision.
Mr. Justice Ritchie expressed his reasons in his notes at p. 438
of the case as follows:
… Although the picketing itself was, in my opinion, peaceful, it would
be totally unrealistic to regard it as an exercise of any right of employees
to peacefully inform other persons that they were on strike. There is no
evidence that there was anything in the nature of a strike in progress
before the placards were paraded and the picket line established. The
purpose of picketing and parading of placards was not to inform other
people’ that a strike existed but rather to create a situation which would
result in a cessation of work, constituting a strike within the meaning of
the Labour Relations Act,…
This decision appears to have settled the matter in the rest of
Canada, 17 and the reasoning was applied in Quebec by Mr. Justice
Lafleur in the case of Sanguinet Automobile Limit6e v. La Fraternitd
Canadienne des Cheminots et al’ s in which he held that peaceful
picketing should be enjoigned because it became illegal because of
the illegal nature of the strike.
La prohibition 6dict~e par l’article 24, paragraphe 1, de la Loi des relations
ouvribres, quant A toute gr6ve et contre-grAve, ne comporte aucune exception
et doit, dans lint6rat public, 6tre appliqu6e rigoureusement.
15Unreported Judgment C.S. Montreal 442,402 rendered 20 May 1958. See
also Noe Bourassa Ltie v. United Packinghouse Workers [1961] C.S. 604 at 609.
16 [1961] S.C.R. 435.
17 See Carrothers, Collective Bargaining Law in Canada (Toronto, 1965) at
pp. 428 and 470.
18 [1964] C.S. 544.
McGILL LAW JOURNAL
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Aucune association, soit de salaries ou d’employeurs, ne peut, pour des
motifs qu’elle estime justifi6s, n6cessaires ou mme urgents, se faire justice
en violant les dispositions imperatives de la loi pour imposer par la force
lacceptation de certaines conditions litigieuses et le r~glement de certains
griefs entre un employeur et ses employ~s.
Un piquetage, m~me paisible, au soutien d’une gxave illgale et ex6cut~e
contrairement aux dispositions de la loi, devient lui-mgme illegal, A moins
d’6tre autoris6 par la loi, et peut faire l’objet d’une injonction.
I1 appartient au l~gislateur de d~finir l’acte de piquetage et d’en determiner
l’usage et l’application; le tribunal n’est pas autoris6 A suppler au silence
du l~gislateur dans ce domaine.
L’injonction est la procedure appropride pour faire cesser les actes domma-
geables et nuisibles que constituent le recours A la gr~ve par une union
de salaries avant m6me que ne soit commence la n~gociation relative h une
convention de travail,…
In support of his decision, Mr. Justice Lafleur cited the Ontario
case of Nipissing Hotels & Farenda Co. Ltd. v. Hotel and Restaurant
Employees and Bartenders International Union (C.L.C., A.F. of L.,
C.I.O.)19 and the passage of Ritchie, J. in the Foundation Maritime
case quoted above.
Following Mr. Justice Lafleur’s decision, there have been numer-
ous recent judgments eliminating picketing in illegal strikes. In
Vapor Heating Limited v. United Steelworkers of America et al,20
Mr. Justice Auclair after stating that:
La raison principale invoqu6e par la requdrante c’est que la grave A laquelle
ont particip6 les intim~s est ill6gale.
considered the facts of the case and accorded the injunction banning
all picketing.
In the Queen Elizabeth Hospital of Montreal v. Raoul Gagnon
et a121 Lamarre, J. held that:
Les ennuis d6jA subis…. par un piquetage injustifi6 devant les premisses
de la requdrante, parce qu’il n’y a pas de grave l~gale, doivent 6tre de
nouveau 6vit6s et contr~l~s.
Again in Freight Aide Limited V. The Cartage and Miscellaneous
Employees, local 931,22 Langlois, J. held:
Des faits ci-dessus, le tribunal d6duit que la grave 6tait ill~gale et aussi,
par consiquent, le guet.
See also ,the deciions of Pothier, J. in Dominion Textile Company
Limited v. Gaston Gagnon,2 3 and of Sabourin, J. and Deslauriers, J.
19 (1963) 36 D.L.R. (2nd) 81; (1963) 38 D.L.R. (2nd) 675.
20 Unreported Judgment C.S. Montreal 709,636 rendered 19 April
1966.
See 13 M.L.J. 181.
21 Unreported Judgment C.S. Montreal 724,006 rendered 12 January 1967.
1966.
22Unreported Judgment C.S. Montreal 706,559 rendered 15 March
1966.
23Unreported Judgment C.S. Montreal 713,387 rendered 20 June
No. 3] PICKETING AND INJUNCTION IN QUEBEC
375
in Imprimerie Montreal Offset Inc. – Montreal Offset Printing Inc.
v. L’Union Typographique Jacques-Cartier, local 145.24
While these recent decisions appeared to indicate a trend in the
jurisprudence, the decision of Puddicombe, J. in Arden Fur Corp. v.
Montreal Fur Workers Union,25 has left the issue subject to some
doubt. After holding that an injunction would not issue to stop
peaceful picketing, he cites with approval the finding of the 1958
decision in Hyde Park Clothes Limited v. Amalgamated Clothing
Workers of America et a120 that peaceful picketing cannot be en-
joined even if it is in support of an illegal strike. No mention,
however, is made of either the Foundation Maritime or Sanguinet
Automobile decisions or of the more recent jurisprudence.
It is submitted, with respect, that if the purpose of the picketing
is to support a strike which is illegal, then the picketing itself be-
comes illegal even if peaceful, and should be restrained by injunc-
tion. It seems illogical to pretend that although the employees do
not have the right to strike, they do have the right to picket to
support the strike that they are not supposed to be on. It follows,
therefore, that the court even on the hearing of the interlocutory
injunction should decide the legality of the strike if this is sub-
mitted in proof for decision.
The reason that our courts are taking a more severe view of
picketing in illegal strikes is perhaps due to the changed purpose
of picketing, the increased incidence of illegal strikes, and the
to in Ontario as “The
application of what has been referred
Rule’ ‘ 27 –
that the picket line shall be respected by other workers.
When the changed purpose and the rule are applied to an illegal
strike situation, it seems obvious that the picketing itself has become
enjoinable.
Mr. Justice Brossard foresaw the problem and the consequences,
in 1956, when he wrote :28
24 Unreported Judgment C.S. Montreal 634,831 rendered 26 February 1964
and 25 March 1964.
25 [1966] C.S. 417.
26Supra, see footnote 15.
27Hersees of Woodstoclk Ltd. v. Goldstein (1963) 38 D.L.R.
(2nd) 449,
Aylesworth J. at 453.
28 In Oberman v. Amalgamated Meat Cutters and Butchers Workers, Unreported
Judgment C.S. Montreal 388,146 rendered 7 March 1956. See also the Ontario
cases of Smith Brothers Construction v. Jones [1955] 4 D.L.R. 255, McLennan
J. at 264 and Hersees of Woodstock Ltd. V. Goldstein (1963) 38 D.L.R. (2nd)
449, Aylesworth J. at 453 and the study by Innis Christie on Inducing Breach
of Contract Vol. 13 McGill Law Journal 101 at pp. 144 ff.
McGILL LAW JOURNAL
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The reference to the present general tendency of labour organizations to
instruct their members to refrain from crossing a picket line raises however
an interesting question. Should the tendency become, in the future, a policy
invariably followed by all organized labour, then it could become possible
to argue that the acts of picketing are no longer done for the purpose of
legally communicating information, but for the very purpose of preventing
an enterprise from carrying on its operations; should it become so, organized
labour would itself render illegal any form of picketing unless the legislator
intervenes.
One last consideration on illegal strikes; it has recently become
the practice for certain unions in Quebec to disguise an illegal strike
by calling their members to attend “study sessions” during working
hours, in the hope, presumably, that the public or the courts will
be confused as to the true nature of the situation. These unions
argue that these “study sessions” are not strikes but are provided
for in section 98 of the Labour Code which provides in part.
Nothing in this code shall prevent an interruption of work that is not a
strike or a lock-out.
It goes without saying that a change of name does not change
the nature of the act, and it is submitted that the so-called “study
sessions” are clearly covered by the definition of “strike” in the
Labour Code [Section 1(h)].
the concerted cessation of work by a group of employees.
Strike: –
Such was the finding of the Court in a decision rendered by Mr.
Justice Lamarre in The Queen Elizabeth Hospital v. Gagnon and
the National Syndicate of Queen Elizabeth Hospital Employees
(C.N.T.U.) 29 in which he declared that the study session amounted
to an illegal strike and issued an injunction, enjoining the respond-
ents from:
(a) Holding, organizing, instigating or participating in any “study session”
or meetings during working hours of the employees, or other forms of
illegal strike;
(b) Encouraging, inviting, or authorizing any employees of the Hospital
to attend or participate in any illegal strike, including meetings and/or
“study sessions” during the working hours of these employees;
(c) Picketing, watching and besetting the premises of the Hospital, at 2100
Marlowe Street in Montreal;
(d) Forbidding the free access to the Hospital;
(e) Preventing in any way the normal Hospital operations or interfering
with the normal work of the Hospital employees.
29 Unreported Judgment C.S. Montreal 724,006 rendered 12 January 1967.
No. 3] PICKETING AND INJUNCTION IN QUEBEC
377
Legal Strikes
Quebec courts have frequently made reference to the common
law tort of nuisance as the justification for granting injunctions in
labour disputes, although, presumably, in civil law terms the in-
junction was being issued to prevent an offense under Article 1053
of the Civil Code. Since, however, the law of injunction in Quebec
comes from the common law3 o it is not unusual to see judgments
of other Canadian provinces cited in our jurisprudence and inevi-
tably certain common law concepts introduced. Thus in the case
of Union Nationale des Employ6s de Vickers V. Canadian Vickers
Limited,3 ‘ Mr. Justice Hyde cites with approval Mr. Justice Kerwin’s
holding in Williams v. Aristocratic Restaurants Ltd.32 that watching
or besetting if carried on in a manner to create a nuisance is at
common law wrongful and without legal authority; that picketing
is a form of watching and besetting; and that it is a question of
fact to be decided in each case whether it amounts to a nuisance.
Mr. Justice Hyde goes on to say that these statements are equally
applicable in Quebec. s3
The circumstances under which injunctions have been issued are
legion, but, in general, the courts have based their decision on the
necessity of the injunction either because grave and irreparable
damage was being caused8 4 or because the acts committed were
clearly illegal and should be restrained.35 In most cases, of course,
the combination of the two grounds will be invoked.
The objection that the injunction should not issue because the
plaintiff has other recourses has been considered and disposed of
by the courts. In particular it has been held on several occasions
that, although the facts alleged by plaintiff may entitle him to
3oRap. Com. Ch. XXXVIII. See also Wills v. Central Railway Company of
Canada (1915) 24 K.B. 102 (PC), Lord Moulton at 106-107.
3′ [1958] B.R. 470 at 476. See also International Ladies Garment Workers
Union v. Rother (1923) 34 B.R. 69 at 72; Aird & Son Ltd. v. Local 500,
International Union of Shoe & Leather Workers [1948] 3 D.L.R. 114; and
Tricot Somerset Inc. v. Le Syndicat Catholique du Tricot Somerset Inc. [1954]
R.L. n.s. 93.
32 [1951] S.C.R. 762 at 780.
33 In Drysdale V. Dugas (1897) 22 S.C.R. 20, Strong- C.J. states at p. 23
that “Mr. Justice Jett6 in his judgment in Crawford v. The Protestant Hospital
(M.L.R. 5 C.S. 70) observes that the English and French law on the subject
of nuisance are exactly alike”. It
is submitted that this is at best an over-
simplification of Mr. Justice Jett6’s decision.
34 See for instance, Sauv6 Frares Limitie v. Amalgamated Clothing Workers
of America et Autres [1959) C.S. 341 and Noe Bourassa Limit~e V. United
Packinghouse Workers of America [1961] C.S. 604.
35 See infra.
378
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recourses before the Criminal Courts, this does not prevent him
from obtaining an injunction from the Civil Courts. This was held
by Mr. Justice Greenshields in International Ladies Garment Workers
v. Rother 31 and has been followed in Society Brand Clothes V. Ama!-
gamated Clothing Workers of America 37 and Foundation Company
of Canada et al v. The Building and Construction Trades Council of
Hull.88 The same has been held 83 for recourses provided under the
Labour Relations Act (1941 R.S.Q. ch. 162A –
now replaced by
The Labour Code 1964 R.S.Q. ch. 141). Finally, the objection that
plaintiff has a recourse in damages which he did not take with his
petition for injunction has also been rejected. 40
It now remains to consider what acts our courts have considered
legal and what other ones they have enjoined and held to be illegal.
It is to be remembered that the main criticism against tribunals in
issuing injunctions is that they interfere with strikers’ rights.
In the case of legal strikes peaceful picketing should not be
enjoined unless picketing becomes merely a front or instrument
to cloak other activities so that together they may have a harmful
effect.41
Quebec jurisprudence has given the following definitions and
illustrations of peaceful picketing, and the rights it confers:
In Shane v. Lupovich,42 Mr. Justice Archambault (sitting ad hoe)
states:
L’existence lgale des unions ouvriires, des conventions collectives, le droit
de grave, sont maintenant reconnus par la loi. Ce n’est plus un crime de
surveiller ou d’6pier un 6tablissement industriel (watch and beset) dans
le but de donner ou d’obtenmir des informations, de soliciter et de tacher
de persuader paisiblement des ouvriers h se joindre A une union ouvribre et
m6me de tenter de convaincre les ouvriers sans menace ni violence qu’il
est de leur int6r~t de cesser de travailler pour certains patrons.
In the same case, Mr. Justice Barclay 48 writes:
But under our law.., employees have the right to strike… ; they have
the right peaceably to counsel and urge other workers to go on strike or
36 (1923) 34 B.R. 69 at 77.
37 (1930) 48 B.R. 14 Mr. Justice Bond at 30.
38 [1961] C.S. 21.
39 L’Association des Employis du bas fagonni de St-Hyacinthe Inc. V. Gotham
Hosiery Company of Canada Ltd. [1959] R.P. 52.
40 See National Electrical Contracting Co. Limited v. Le Syndicat National
de la, Construction Hauterive [1965] R.P. 18 and Griffin Steel Foundries Ltd.
V. Syndicat des Mitallurgistes Inc. [1959] C.S. 566.
41.Mr. Justice Batshaw in Noe Bourassa v. United Packinghouse Workers
of America et aZ [1961] C.S. 604 at 611.
42 [1942] B.R. 523 at 530.
43Ibid, at 529.
No. 3] PICKETING AND INJUNCTION IN QUEBEC
379
join a union; they may watch and beset for the purpose of obtaining
information; peaceful picketing is not prohibited so long as it does not
constitute a common law nuisance…
In Borek v. Amalgamated Meat Cutters 44 at page 337:
From the above provisions, it appears very plainly that “watching” and
“besetting” an establishment… “for the purpose of obtaining or com-
municating information”…
is not prohibited by the Criminal Code and
does not constitute an offence under the said Code.
As mentioned by Tremeear, the words “besets or watches” in section 501,
par. (f) (which is substantially the same as art. 366, par. (f), above
quoted) are not defined in the Code, but they refer to the conduct commonly
called “picketing”, and although that term is not used in the Code, it is
generally regarded as synonymous. The word “picketing”
is defined in
the Encyclopaedia Britannica, quoted by Rivard J. in Int. Ladies Garment
Workers Union v. Rother, as “a term used to describe a practice resorted
to by workmen engaged in a trade dispute, of placing one or more men
near the works of the employees with whom the dispute is pending with
the object of drawing off his hands or acquiring information useful for
the purposes of the dispute”.
The Courts, however, not having an actual text of law to interpret,
have been more concerned with the legality or illegality of the actual
acts committed in any given case, which were defended as picketing,
than with the -actual practice itself. it dis therefore not surpriskng
that we have more illustrations in our jurisprudence on what acts
should be enjoined and are not to be qualified as peaceful picketing
than we have positive studies of the right to picket.
In the first place, it goes without saying that acts of violence
and intimidation are illegal and will lead to an injunction if the
judge is of the opinon that the picketing is a cover for them.4 5
While violence or intimidation have in most cases accompanied
them, the following acts have also been held to be illegal by our
courts.
(1) Preventing the operations of a company or scheming to
do so. 6
Seafarers International Union of Canada v. Upper Lakes Shipping
Limited:
47
-4 [1956] C.S. 333, see footnote at p. 337. Note, however, the comment by
Carrothers op. cit. at p. 442.
45 See the cases referred to in footnote 7 as examples.
46 See also Acton Vale Silk Mills v. L6veillg et al (1940) 78 C.S. 19; Noranda
Mines Limited v. The United Steelworkers of America [1954] C.S. 27 and
the notes of Mr. Justice Brossard in United Steelworkers of America V. Gasp6
Copper Mines Limited, unreported judgment of Quebec Court of Appeal No. 6587
(Que.) rendered 16 March 1967.
47 [1964] B.R. 737 at 740.
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[Vol. 13
However peaceful the picketing may have seemed, he had reason to believe
that it was a vital part of a scheme to prevent by illegal means the carrying
on of respondent’s business, and events seem to have proved him right.
Appellants may have legitimate grievances against respondent, but for
these they are seeking redress before the courts. If, in addition, they desire
to publicize their grievances,
they had better adopt some means other
than picketing, which seems in this case liable to lead to breaches of the
peace and to interfere with the economic life of the whole community. The
appeal should be dismissed.
(2) Preventing other workers from working or entering their
place of work.48
The Foundation Company of Canada Ltd. et al V. The Building
and Construction Trades Council of Hull:49
If employees have been frightened away from their work by means of
threats, intimidation and other deterrent and coercive measures, the mere
subsistance of a picket line, even without additional threats, would serve
as a constant reminder of past punishment and miseries and of possible
present and probable future retaliation, and a diluted injunction forbidding
only such illegal abuses of the right to picket would be totally ineffective. In
such circumstances picketing should be prohibited in its entirety.
In this connection the practice of certain unions of establishing
a “Pass System” has also been considered by our courts. Under the
system the union determines who they will allow to cross the picket
lines and issue passes to them. By implication and in fact any other
person is not allowed to enter. The use of the system simplifies
proof of illegal acts and has led to injunctions in the cases of
Dominion Textile Company Limited v. Le Syndicat Catholique des
Ouvriers du Textile de Magog Inc. (C.N.T.U.)O and Union Natio-
nale des Employis de Vickers v. Canadian Vickers Limited.1
(3) Massing of large number of pickets.52
Lupovich V. Shane:5s
Individual workers and representatives of Unions are entitled, during a
strike or at other times, to establish “pickets” in reasonable numbers, in
the neighbourhood of an establishment with respect to which there is an
industrial dispute, for the purpose of obtaining or communicating informa-
tion; but if the number of the pickets exceed what is reasonably necessary
4sSee also International Garment Workers v. Rother (1923) 34 K.B. 69;
Tricot Somerset Inc. v. Le Syndicat Catholique du Tricot Somerset Inc. [1954]
R.L. n.s. 93.
49 [1961] C.S. 21.
5OUnreported Judgment C.S. St. Frangois 31,520. Judgment rendered April
25, 1966.
51 [1950] B.R. 570. See also Carrothers op cit. at p. 434.
82 See also International Garment Workers Union v. Rother (1923) 34 B.R. 69
and Union Nationale des Employis de Vickers v. Canadian Vickers Limited
[1958] B.R. 470, Mr. Justice Montgomery at 472.
53 [1944] 3 D.L.R. 193 at 203 (Superior Court).
No. 3] PICKETING AND INJUNCTION IN QUEBEC
381
in the circumstances, the number itself may be considered as constituting
a threat or intimidation.
(4) Trespassing on private property.
Norand Mines Limited v. The United Steelworkers of Americ: 54
L’art. 501 par. (g) C. Cr., permet h un ouvrier qui se trouve sur les lieux
de son travail on pros de cet endroit, alors qu’il a cessd de travailler, de se
justifier si sa presence a pour objet d’obtenir ou de communiquer des
renseignements, mais ne lui donne pas le droit d’empi6ter sur le terrain
d’autrui, contre le gr6 ou sans le consentement de celui-ci.
(5) S’econdaiy boycotting.
In Verdun Printing and Publishing Inc. v. Union Internationale
des Clicheurs,55 Mr. Justice Deslauriers held:
Dans l’exercice du droit de gr~ve, reconnu par les lois de notre pays, une
certaine esplce de boycottage
(primary boycott) peut 6tre idgale pour
promouvoir les intfr6ts d’un groupe, comme lentente parmi certains membres
d’une union de cesser de faire affaires avec une personne contre qui une
action concert~e est dirigde. Il n’est pas permis cependant de recourir
h des machinations dans le but de nuire A une personne en forgant d’autres
personnes A lui nuire aussi (secondary boycott).
This decision was cited with approval in both Noe Bourassa V.
United Packinghouse Workers of America et al 55 and Sauv6 Fr~res
Limitie v. Amalgamated Clothing Workers.57
In a more recent decision of Canuk Lines Limited v. Seafarers
International Union of Canada and Others,55 Mr. Justice Lafleur
goes further than the previous cases. While agreeing that a second-
ary boycott (and for that matter a symphatic strike) was illegal,
he decides that intimidation, coercion or threats of injury are
essential elements of a boycott and by so doing suggests that any
form of boycott is unlawful. Since any strike will contain elements
of a primary boycott, it is submitted that his statements must be
read in the context of secondary boycott.
Conclusions
I In Quebec there has been frequent recourses to injunctions at the
time of strikes. There has also been a long history of violence and
disorder associated with strikes. Both facts are cause for concern.
But to restrict injunctions without protecting against the disorder
would be unrealistic. When any group takes the law into its own
hands, our courts will be called on to intervene.
54 [1954] C.S. 27.
55 [1957] C.S. 204.
56 [1961] C.S. 604.
57 [1959] C.S. 341.
58 [1966] C.S. 543.
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[Vol. 13
It is suggested by some that these situations should be removed
from consideration by the civil courts and given to a special labour
tribunal. The implication is that our Judges are not trained in labour
law and therefore are out of their depth in these labour disputes.
This is just not so. There is no great mystery to the law governing
strikes and picketing and it certainly does not take an expert in
labour law to appreciate when a group of people are resorting to
violence or intimidation. Our Judges are called upon to resolve far
more complex problems than these in other fields of law. Frankly,
whether it be a Judge of the Superior Court, or of the Criminal
Court or of a Labour Court, the result would still be that an order
would issue to prevent illegal acts from being committed under the
guise of peaceful picketing. Surely, neither the legislator, nor the
courts, are going to license a group to commit acts which are illegal
to an individual.
Professor Christie in his excellent study on Inducing Breach of
Contract in Trade Disputes 59 suggests that what is needed in the
area of picketing is legislation that provides for the issue of injunc-
ti;ons only in specdfic fact situadons, but that these situations must
be spelled out to leave scope for effective peaceful picketing. With
respect, it is submitted that the solution must go much deeper.
What does “effective peaceful picketing” mean? Do we really
need picketing at all? If the purpose of picketing is only to inform
the public, then in today’s era of mass communication far more
effective ways are available, and picketing has become obsolete.
There is far more intimidation than information coming from today’s
picket line. Most labour leaders will admit openly that this is the
purpose of the line. It is a warning to all that cross it of reprisals
either social, economic or physical.
There is a strong case to be made for preventing new employees
from replacing the strikers during the strike. If a moderate view
suggests that what the picketer is really doing is protecting his
own job, and that the economic battle between the employer and the
union becomes one sided when the striker can be replaced, then the
legislator should prohibit such hiring during a strike. Having done
so, could he not also ban the practice of picketing which has led to
so much disorder?
The ground rules of a strike should be reconsidered by the
legislator and then made very clear in law. This done, is it too
much to hope that the law will be respected?
59 (1967) 13 McGill L. J. 101 at p. 151.
