Tuesday, June 5, 2012

An injunction may go to restrain conduct that is not, in itself, a tort

Great Canadian Railtour Company Ltd. v. Teamsters Local Union No. 31,  2012 BCCA 238 holds that an injunction can be granted to enjoin harassment.  In doing so the Court held an injunction may be granted to restrain conduct that is not, in itself, a tort:

[48]         The Union submits that as there is no common-law tort of harassment, it was not open to the chambers judge to enjoin conduct that constitutes “harassing in any manner”.  It submits that the decision of the Supreme Court of Canada in the Pepsi-Cola case stands for the proposition that picketing activity that does not constitute a recognized tort cannot be enjoined.  It relies on the following from the judgment of Chief Justice McLachlin and Mr. Justice LeBel, with particular emphasis on the words that I have underlined:

103      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.

[49]         The Union also relies on Prince Rupert Grain Ltd. v. Grain Workers’ Union, Local 333, 2002 BCCA 641, 8 B.C.L.R. (4th) 91.  In that case, this Court set aside an interlocutory injunction restraining picketing at a grain terminal because the employer had failed to establish a prima facie case that the union had interfered with the employer’s contractual relations.  In particular, the Union cites the following passages from Mr. Justice Donald’s reasons as support for its argument that conduct which is neither a tort nor a crime can never be enjoined:

[3]        At the conclusion of the hearing of the appeal, we allowed the appeal and set aside the injunction with reasons to follow.  The appeal was allowed because the respondent failed to establish that the picketing involved the commission of a tort.


[5]        ... Pepsi-Cola further decided that the interference with the right of free expression through picketing can only be justified in preventing a wrongful act, either a tort or a crime.

[50]      In summary, the respondent failed to make a prima facie case that the union committed a tort in the course of picketing and accordingly the injunction cannot stand.

[50]         For a number of reasons, I do not accept that Prince Rupert Grain stands for the proposition the Union seeks to extract from it.  The first is that those passages of Donald J.A.’s reasons cited above were not concurred in by the other members of the division, Mr. Justice Mackenzie and Mr. Justice K. Smith.  Second, Prince Rupert Grain is a case in which, as Donald J.A. stated at para. 50, the injunction failed because the employer did not establish a prima facie case with respect to the only tort alleged.  I do not agree that the requirement articulated by Donald J.A. at para. 3—that it must be established “that the picketing involved the commission of a tort”—means that only conduct which standing alone constitutes a tort (or crime) can be restrained.  The last reason is that Mackenzie J.A. (K. Smith J.A. concurring), in agreeing that the injunction should be set aside, referred (at para. 55) to the fact that in Pepsi-Cola the Supreme Court of Canada had “emphasized the need for flexibility in the ‘wrongful action’ approach”.

[51]         In my view, the Supreme Court in Pepsi-Cola did not, in adopting the wrongful action approach, intend to preclude courts from ever enjoining conduct that is neither tortious nor criminal in and of itself.  Rather, it left it open to courts to fashion remedies responsive to the situation at hand.  After expressing the view (at para. 103) that “[s]pecific torts known to the law will catch most of the situations”, the Chief Justice and LeBel J. went on to state:

106      Despite some anomalies, it is safe to assert that a wrongful action-based approach will catch most problematic picketing – i.e. picketing whose value is clearly outweighed by the harm done to the neutral third party.  Moreover, the law of tort may itself be expected to develop in accordance with Charter values, thus assuring a reasonable balance between free expression and protection of third parties.

107      Moreover, to the extent that it may prove necessary to supplement the wrongful action approach, the courts and legislatures may do so.  Doubtless issues will arise around the elaboration of the relevant torts and the tailoring of remedies to focus narrowly on the illegal activity at issue.  Doubtless too, circumstances will present themselves where it will become difficult to separate the expressive from the tortious activity.  In dealing with these issues, the courts may be expected to develop the common law sensitively, with a view to maintaining an appropriate balance between the need to preserve third-party interests and prevent labour strife from spreading unduly, and the need to respect the Charterrights of picketers. ...

[Emphasis added.]

[52]         There is no requirement that every prohibition in an injunction be directed at conduct that itself amounts to a tort.  In many cases it may be the combined effect of the various conduct, or the frequency of its repetition, which results in the commission of a tort (or crime).  The primary issue in considering whether an injunction should be granted is whether there is conduct that amounts to a tort (or crime).  To succeed on an application for an interim injunction, an applicant must make out a prima facie case that a tort (or crime) has been committed or is reasonably apprehended.  It is only after that test has been met that a judge will consider what specific injunctive terms are necessary to address the wrongful conduct.  When, as in the case at bar, a prima facie case of intimidation has been made out, it is open to a judge to enjoin not only that tort, but also related conduct, which although not tortious on its own, forms part of, or contributes to, the commission of that tort.  The important question is whether the later prohibition is reasonably necessary to prevent a repetition of the tort.  In this regard, I note that at the hearing of this appeal the Union accepted that harassing conduct can form part of the tort of intimidation.

[53]         An example of such a reasonably necessary term is one limiting the number of picketers.  While congregating in numbers is not a stand-alone tort, placing a limit on the number of picketers may be reasonably necessary in response to a prima facie showing that picketers have committed such torts as intimidation, interference with contractual relations, or nuisance.  Although in Vancouver Museums and Planetarium Assn. v. Vancouver Municipal and Regional Employees’ Union (1981), 27 B.C.L.R. 73 (C.A.), this Court set aside the term in an injunction limiting the number of picketers on the basis that it was not warranted in the circumstances, Mr. Justice Craig recognized (at 76, 77), that “such an order may become necessary if the union is unable or unwilling to control its members and there is obstruction of access”.

[54]         Indeed, in Pespi-Cola, the Supreme Court, in affirming an injunction on demonstrating at the homes of company employees, upheld a term prohibiting forms of conduct that did not, standing alone, constitute a tort.  This was because, in the circumstances, such conduct had been shown to amount to intimidation and private nuisance:  para. 117.

[55]         The evidence before the chambers judge in this case established that the first injunction—granted only eight days before—had failed to deter the Union from continuing to engage in tortious conduct.  Indeed, that evidence demonstrated that the Union had become more aggressive in its efforts to interfere with Great Canadian’s operations.  It was entirely appropriate for the chambers judge, in tailoring his order with a view to de-escalating the situation and preventing the further commission of torts, to enjoin the Union from harassing Great Canadian’s employees, passengers, and third-party suppliers.  The evidence supported a finding that harassing conduct had occurred and had contributed to the commission of the tort of intimidation.  The judge was also rightly concerned that a continuation of the harassing conduct could lead to a breach of the peace.

[56]         In concluding on this ground, I note that anti-harassment provisions have been used before in this province:  see TNL Construction Ltd. v. British Columbia and Yukon Territory Building and Construction Trades Council, [1994] B.C.J. No. 3181 at para. 27 (S.C.); Sun-Rype Products Ltd. v. Teamsters Local Union No. 213, 2008 BCSC 165 at para. 7; Adams Laboratories Ltd. v. Retail, Wholesale & Department Store Union, Local 580 (1980), 23 B.C.L.R. 74 at 75 (C.A.).  Further, the injunction in Pepsi-Cola contained such a provision (see para. 7), although it was not in issue on the appeal.

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