2005 BCSC 1236 Telus v. T.W.U. et al

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Telus v. T.W.U. et al*
	2005 BCSC 1236

Date: 20050908
Docket: S054093
Registry: Vancouver

Between:

TELUS COMMUNICATIONS INC., TELE-MOBILE
COMPANY AND TM MOBILE INC.

PLAINTIFFS

And

TELECOMMUNICATIONS WORKERS UNION, ITS OFFICERS, MEMBERS, SERVANTS, AGENTS AND REPRESENTATIVES, AND JOHN DOE, JANE DOE AND OTHER PERSONS UNKNOWN TO THE PLAINTIFFS ACTING AS PICKETS AND/OR ATTENDING AT OR NEAR THE PREMISES OF THE PLAINTIFFS AS SET OUT IN SCHEDULE “A” AND “B” HERETO OR AT THE PREMISES OF CUSTOMERS OF THE PLAINTIFFS

DEFENDANTS

Before: The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(From Chambers)

Counsel for Plaintiffs	A.J. Hamilton, Q.C., D.L. Richards & C.J. Wiebe
Counsel for Defendants	M.D. Shortt, Q.C. P. Dumaresq
Date and Place of Hearing:	August 19, 22 & 23, 2005
	Vancouver, B.C.

[1] This is a Motion of behalf of the Plaintiffs that my August 5, 2005 Order be varied by adding that the Defendants, by themselves, their officers, members, servants, agents and representatives and otherwise be restrained, enjoined and prohibited until the trial of this action or further Order of this Court from:

(a) picketing, watching or besetting, trespassing, creating a nuisance or congregating at or near the residences of the Plaintiffs’ employees, management staff, agents, customers, suppliers or others in privity of contract with the Plaintiffs, or the residences of their families ;

(b) picketing, watching or besetting, trespassing, creating a nuisance or congregating at or near hotels and other temporary residences, or restaurants, used by the Plaintiffs’ employees, management staff, agents, customers, suppliers or others in privity of contract with the Plaintiffs; and

(c) molesting, assaulting intimidating, obstructing, threatening or interfering with the Plaintiffs’ employees, management staff, agents, customers, suppliers or others in privity of contract with the Plaintiffs.

[2] In support of the application, the Plaintiffs filed little affidavit material relating to incidents involving: “... the residences of ... agents, customers, suppliers or others in privity of contract with the Plaintiffs or the residences of their families....” Accordingly, the Order sought will not be granted in relation to the residences, hotels or other temporary residences of the agents, customers, suppliers or others in privity of contract with the Plaintiffs.

[3] In support of the application, there are a number of affidavits setting out incidents which were said to justify the extension of the injunction already in place:

(a) An employee who states that she was assigned to collect coins at payphones in Oliver, stopped at a fruit-stand in Oliver, was approached by a man who is alleged to have come within “a few inches from my face” yelling “you don’t belong here, go back to where you came from” and who is alleged to have grabbed her right arm and tapped it four times with his fingers;

(b) A Vancouver employee of the Plaintiffs temporarily residing in Campbell River and using a rental vehicle to travel between his temporary residence and the Campbell River office of the Plaintiffs and to go out for meals who alleges that he was approached by two individuals when he went to a local restaurant and, while outside the restaurant, that two individuals start to picket in front of the restaurant and handing out pamphlets and wearing signs that stated: “This business caters to TELUS scabs”. That incident occurred on August 8, 2005 and he alleges that similar incidences occurred on August 4, August 9 and August 10, 2005. He alleges that on August 9 at approximately 7:40 p.m. he spoke to a picketer and explained that there was a Court injunction prohibiting picketers from following private vehicles and alleges that the picketer responded by saying words to the effect that he had every right to follow as long as he at least ten feet behind. He records the picketer as saying: “... we would be kicked out of the Discovery Inn Hotel tomorrow, because the manager of that hotel was very upset.”;

(c) An employee reports an incident at a “compound” of the Plaintiffs located in Campbell River when he tried to enter the compound with a vehicle of the Plaintiffs but was blocked by a truck occupied by a picketer, who then stood in front of the passenger side of the Plaintiff’s vehicle so another occupant in the Plaintiff’s vehicle could not exit the vehicle to unlock the gate to the compound so that he left the vehicle to walk towards the gate to unlock it leaving the driver’s side door open and, when he walked back to the vehicle and tried to shut the driver’s side door a picketer “... pushed me with open palms against my shoulders” and “then pushed me with open palms that made contact with a pen I had in my mouth”;

(d) A Prince George employee who states that he and his wife were awoken at approximately 6:00 a.m. on August 9, 2005 by loud continuous blasts of a horn from a vehicle and then observed two men who were walking back and forth on the street in front of his home and driveway bearing signs “Telecommunications Workers Union-Locked Out by Telus”. On exiting his home, he states that one of the picketers yelled profanities and abuse at him and stated: “What is wrong with Telus and you, you are breaking the law. We will take you to the courts. We will fight lawlessness with lawlessness.” He also states that one of the picketers stated: “Where ... are you going to live after this [employee’s first name] ...?” He further states that he went to the home of another co-worker and that the two previous picketers yelled profanities and abuse at them at that location as well;

(e) The wife of the Prince George employee who confirms the statement made by her husband and states that, shortly after he left the home, she heard a “very loud truck” coming up the street, saw two men in the truck with a similar sign hanging from the driver’s side rear-view mirror and saw that the truck was parked so that “... the nose of the red truck was right up against the edge of my home’s driveway and the rear-end of the Red Truck was right up against the edge of [the driveway of their neighbour,] ....”

(f) The neighbour of the Prince George employee who states that he was awoken by continuous blasts from a car horn at approximately 6:05 a.m. on August 9, 2005, saw two men exit a vehicle and put on signs that read “Telecommunications Workers Union Locked Out by Telus”, that he walked towards the two men and asked the man with the moustache whether they were the ones honking the horn, states that he was advised “This has nothing to do with you”, states that the man with the moustache said something along the lines of “What right does [name of the employee] ... have to be a scab. He then ranted and raved about scabs and taking food from his family. He appeared to me to be getting agitated and more animated in his demeanour. He started to speak with a much louder voice and started to emphasize his words with profanity. At this point I was becoming concerned.” He states that, he would usually leave for work at 4:00 a.m. on August 10 but, because of the events of August 9, decided to leave for work at 6:00 a.m. “... around the time that the previous incidence occurred for fear for the safety of my family.”;

(g) Another Prince George employee who states that he saw two vehicles parked across the street from his home, saw two person wearing signs that read “Telecommunications Workers Union – Locked Out by Telus” walking back and forth on the sidewalk across the street from his home, went to his vehicle and heard one of the picketers say: “How is your son going to feel at the hockey rink this winter when he is called a son-of-a-scab.” This employee states in his affidavit: “I am very worried about the safety of myself and that of my family, my property and that of my neighbour’s.”;

(h) A Kamloops employee reported that, at approximately 6:15 a.m. on July 31, 2005 as he and his wife were pulling out of the driveway at their home, he saw a sign in front of the home that read “Telecommunications Workers Union – TELUS Scab Lives Here” with an arrow pointing towards his home and reports that he was advised by his wife that, at approximately 11:30 a.m., a mid-sized vehicle was parked outside their home and that a man with a Telecommunications Workers Union sign was walking back and forth on the street in front of his home. The man that was later in front of his home apologized stating: “If I have done anything illegal, I apologize”. The Kamloops employee states: “I am very concerned for my family and my family’s safety, my property and my neighbour’s. I feel that the use and enjoyment of my Home was put in jeopardy and that my privacy and the privacy of my family was intruded upon....”;

(i) An employee who normally works in Calgary but was working in Campbell River and was temporarily residing at the Discovery Inn Hotel was undertaking an installation and repair job in Comox. He described picketers as being “extremely loud and verbally abusive” making “offensive and obscene comments” to him and using “air-horns, which they blasted in our direction.” He described one picket as having approached them in a “threatening manner” and “while shaking with what appeared to be anger, ... clenched his fist, shouting expletives and called us names, such as “fucking scabs”. On August 10 at the Discovery Inn Hotel in Campbell River, he states that he and another co-worker and their two bodyguards were headed towards his “rented unmarked vehicle” which they found to be surrounded by five pickets wearing picket signs. He states that one of the pickets asked “How’s your family?” After they entered the rented vehicle, the pickets were said to have “walked extremely slowly out of my way, taking what I would describe as “baby steps” and that this took “approximately five minutes”. On August 11, he observed a picketer at the front door of the Discovery Inn Hotel and as well there were four picketers surrounding his rented vehicle. He states that once he got into the vehicle, three of the picketers moved in front of the car and blocked his way and one picketer stood at each side of the car so that when he attempted to drive out, the picketers blocked the car “and walked extremely slowly out of the exit path of the car”;

(j) A Prince George employee who stated that he and two other employees were followed from a parking lot to the Prince George office of the Plaintiffs with the men walking less than two steps behind the three and that one of them walked so closely behind him that he “stepped on my heel”. The employee states that he turned around and asked him “to give me some room” and that the person stated: “Read the injunction, there is nothing in there about that” and continued to say “I can follow right behind you”. He also described a number of occasions where a number of picketers were yelling loudly, blowing whistles, and blowing whistles into a megaphone. The employee states: “I have a hearing impairment that I have been aware of since 1972. The hearing impairment affects my ability to hear high frequency sounds and conduct conversations in noisy environments. The repeated close range whistle blowing has caused me great concern and I am fearful that it could cause further damage to my hearing”;

(k) An employee who states that she exited the Sullivan Station of Skytrain in Surrey when two picketers got out of the van and put on picket signs which stated “T.W.U. Locked Out” and began to yell at her and another employee of the Plaintiffs. She stated that a male picketer was about 10 feet from her when he shouted at what she thought were the words: “that I would get shot on the Skytrain going home.”;

(l) A person who states that he is engaged to provide security and private investigation services for the Plaintiffs in Cranbrook and who states that he was in his vehicle following at a safe distance behind the vehicle containing a picketer and that he was driving parallel to that vehicle when: “... all of a sudden I saw his vehicle stop, back up and drive straight at me. I was scared that the Ford was going to hit me, however, he slammed on his brakes within one-foot of [my vehicle]....” he also states that the picketer walked up to the driver’s side window of his vehicle and: “He then reached inside of my vehicle, grabbed my shirt and pulled my whole body against the inside of the vehicle door. Then with the same hand that he grabbed me with, he slapped the side of head with an open palm, hitting my left ear. I was shocked by how quickly the situation was escalating and I did not want to get out of my car. I felt very threatened. He then yelled, “Get out of your car you son-of-bitch.” He kept yelling in that fashion right into the open window of the Chrysler. He also yelled, “Get out of the vehicle, I’ll beat the shit out of you.”;

(m) An employee who states that she was driving towards her home in Abbotsford and was being followed by another vehicle. She pulled into her neighbour’s driveway which was approximately one block from her home so that the other vehicle would have to drive past her, the vehicle did pass her, and when she went home she found that the vehicle was parked at the bottom of her driveway blocking the entrance in a way that prohibited her entry into her own driveway.

[4] While a number of affidavits had been filed to refute what was stated in the affidavits relied upon by the Plaintiffs and while I will not necessarily attempt to reconcile the differences between the affidavits which deal with these events, I can reach the following conclusions without reconciling those differences:

(a) members of the union and supporters of members of the union are approaching employees of the Plaintiffs while they are at local restaurants both during and after their working hours with the Plaintiffs and are picketing the restaurants on the basis that the restaurants are catering to what they refer to as “TELUS scabs”;

(b) members of the union and supporters of members of the union are visiting the homes of employees of the Plaintiffs as early as 6:00 a.m., causing a disturbance by honking the horns on their vehicles and picketing the homes of employees of the Plaintiffs;

(c) signs are being placed on or near the property of employees indicating that a “TELUS Scab” occupies the home at that location;

(d) picketing is taking place in front of the homes of employees whether or not the employee happens to be there at the time;

(e) a number of incidents have resulted in employees of the Plaintiffs feeling intimidated and threatened by the activities of picketers and possibly even assaulted by picketers; and

(f) the actions of picketers have had the effect of obstructing and interfering with the duties of the employees of the Plaintiffs.

[5] Dealing with the ability of the Defendants to picket at the usual residences, temporary residences, or restaurants occupied by employees of the Plaintiffs, the Plaintiffs rely on a number of decisions that set out the principle that such activities will be enjoined. In their submissions, the Defendants rely upon the decision of the Supreme Court of Canada in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156 for the proposition that freedom of expression accorded to the Defendants will prevail over the rights of the employees of the Plaintiffs.

DECISIONS IN CANADA PRIOR TO THE PEPSI-COLA DECISION

[6] In British Columbia, this issue was first raised in a previous dispute between this Union and the predecessor company to the Plaintiffs. In British Columbia Telephone Co. v. Telecommunication Workers Union, [1978] B.C.J. (Q.L.) No. 14 (B.C.S.C.), Bouck J. dealt with the issue of picketing at the homes of management personnel as follows:

The peaceful dissemination of information and the freedom to inform others of a labor dispute is a basic right of every Canadian. It should not be lightly taken away. But where the exercise of these rights is abused, the law must interfere to restore order in society.

Besides the mass picketing mentioned above, the Defendant has picketed the homes of management personnel belonging to the Plaintiff company with signs reading "Scab lives here" and the like. Such conduct where it involves third parties unconnected with the dispute is not permissible because by law the company is the Union's adversary and not its management. At the very least this conduct amounts to an unlawful watching and besetting of a dwelling house. (at paras.4-5)

[7] In Western Cablevision Ltd. v. International Brotherhood of Electrical Workers Local 213, [1986] B.C.J. (Q.L.) No. 1501 (B.C.S.C.), Spencer J. dealt with an application to extend an injunction to prevent “... picketing, watching and besetting at the residences and chattels of the Plaintiff’s employees and their families.” In granting that part of the extended injunction, Spencer J. stated:

The last matter to be dealt with concerns an incident of picketing at the residence of one of the plaintiff's continuing employees. Although there is only one employee involved so far, there have been scarcely veiled hints to others that their addresses are known. The residence of an employee is not the place of business of the employer. There is no justification at law for what has happened at Mr. Wright's house. The incident there may well amount to a breach of section 381 of the Criminal Code. I do not intend to enjoin it as such, however, but in the context of unlawful picketing in this labour dispute. Although the criminal offence, if there was one, was directed at individuals, not parties to this action, the plaintiff has standing to complain of it because one of those individuals was its employee and the object of the picketing was clearly to try to coerce that employee to breach his contract of employment with the plaintiff. There will therefore be an order varying the original injunction to add to it a provision restraining the defendants, and anyone having knowledge of this order, from picketing, watching or besetting, trespassing, or creating a nuisance at the residences or motor vehicles of the plaintiff's employees or their families, or intimidating, coercing, threatening or obstructing the plaintiff's employees' family members. (at para. 5)

[8] Spencer J. also stated:

It is well-known, but in the pressure and frustration of a lawful strike often forgotten, that the purpose of picketing is to communicate information to members of the general public and to persuade them not to do business with the employer. It is not to coerce or intimidate the employer, its non-striking employees, or the public. See Williams v. Aristocratic Restaurants (1947) Ltd. [1951] 3 D.L.R. 769 (at para. 4).

[9] In Rogers Cable T.V. – British Columbia Ltd. v. International Brotherhood of Electrical Workers, Local 213, (Unreported September 9, 1986 Oral Reasons for Judgment) (Action No. C863806) (Vancouver Registry), Cowan L.J.S.C, as he then was, dealt with the erection of a sign on which was lettered the words “LOCKED OUT” and immediately below which were the pictures of five non-union employees of the Plaintiffs, the words “Non Union Workers Doing Our Jobs, the photographs of the non-union employees identified by name and most of them by title, and, some of the home addresses of the employees as well as the home telephone numbers of some of them. Cowan L.J.S.C. stated that the sign, to the extent that it communicated information that non-union employees were performing work formerly done by Union employees was “quite proper” but that:

... the addition to it of photos with phone numbers and home addresses takes it beyond mere communication of information. I am of the view that given all the circumstances surrounding this labour dispute as disclosed by the material in the file the effect of putting the additional information I have referred to on the sign can only have been intended to have the effect of intimidating the employees depicted and by so doing possibly lead to their breaching their contracts of employment.

[10] Similar decisions from Ontario are also relied upon by the Plaintiffs. In Attorney General of Ontario v. Dieleman et al (1995) 20 O.R. (3d) 229 (Ont. G.D.), the Court dealt with an application for an injunction enjoining picketing and other activities outside hospitals and clinics offering abortion services and outside the homes and offices of doctors who performed those services. In dealing with the residences of physicians, Adams J. stated:

In Frisby v. Schultz …[487 U.S. 474 (1988)], the United States Supreme Court held that an ordinance making it "unlawful" for any person to engage in picketing before or about the residence or dwelling of any individual was not facially invalid under the First Amendment. (at p. 325)

Against the construction that the ordinance spoke to "only focused picketing taking place solely in front of a particular residence" (p. 483), Justice O'Connor emphasized the privacy interests of the unwilling "captive" listener and the devastating impact of focused picketing on the quiet enjoyment of the home. In this respect, she stated at pp. 484-88:

We readily agree that the ordinance preserves ample alternative channels of communication and thus move on to inquire whether the ordinance serves a significant government interest. We find that such an interest is identified within the text of the ordinance itself: the protection of residential privacy. ....

"The State's interest in protecting the well-being, tranquillity and privacy of the home is certainly of the highest order in a free and civilized society." Carey v. Brown, 447 U.S., at 471. Our prior decisions have often remarked on the unique nature of the home, "the last citadel of the tired, the weary, and the sick," Gregory v. Chicago, 394 U.S. 111, 125 (1969) (Black J., concurring), and have recognized that "[p]reserving the sanctity of the home, the one retreat to which men and women can repair to escape from the tribulations of their daily pursuits, is surely an important value". Carey, supra, at 471.

One important aspect of residential privacy is protection of the unwilling listener. Although in many locations, we expect individuals simply to avoid speech they do not want to hear, cf. Erznoznik v. City of Jacksonville, supra, at 210-211; Cohen v. California, 403 U.S. 15, 21-22 (1971), the home is different. "That we are often `captives' outside the sanctuary of the home and subject to objectionable speech . . . does not mean we must be captives every where." Rowan v. Post Office Dept., 397 U.S. 728, 738 (1970). . . .

Here, in contrast, the picketing is narrowly directed at the household, not the public. The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way. Moreover, even if some such picketers have a broader communicative purpose, their activity nonetheless inherently and offensively intrudes on residential privacy. The devastating effect of targeted picketing on the quiet enjoyment of the home is beyond doubt:

To those inside . . . the home becomes something less than a home when and while the picketing . . . continue[s] . . . [The] tensions and pressures may be psychological, not physical, but they are not, for that reason, less inimical to family privacy and truly domestic tranquillity. Carey, supra at 478 (Rehnquist, J., dissenting, (quoting Wauwatosa v. King, 49 Wis. 2d 398, 411-412, 182 N.W. 2d 530, 537 (1971)).

In this case, for example, appellees subjected the doctor and his family to the presence of a relatively large group of protestors on their doorstep in an attempt to force the doctor to cease performing abortions. But the actual size of the group is irrelevant; even a solitary picket can invade residential privacy. . . . The offensive and disturbing nature of the form of the communication banned by the Brookfield ordinance thus can scarcely be questioned. . . .

The First Amendment permits the government to prohibit offensive speech as intrusive when the "captive" audience cannot avoid the objectionable speech. See Consolidated Edison Co. v. Public Service Comm'n of New York 487 U.S. 530, 542 (1980). . . . The target of the focused picketing banned by the Brookfield ordinance is just such a "captive." The resident is figuratively, and perhaps literally, trapped within the home, and because of the unique and subtle impact of such picketing is left with no ready means of avoiding the unwanted speech. . . . Thus, the "evil" of targeted residential picketing, "the very presence of an unwelcome visitor at the home," Carey, supra, at 478 (Rehnquist, J., dissenting), is "created by the medium of expression itself" . . . Accordingly, the Brookfield ordinance's complete ban of that particular medium of expression is narrowly tailored.

Of course, there is no such ordinance in the facts at hand. However, the tort doctrine of nuisance embraces an expansive set of principles aimed at protecting a person's entitlement to reasonable use and enjoyment of a particular property. Privacy is an integral component of reasonable residential use. A home-owner's interest in privacy is both self-evident and of a constitutional dimension: see Edmonton Journal v. Alberta (Attorney General) … [[1989] 2 S.C.R. 1326], at pp. 1345, 1362 and particularly at pp. 1376-78. A public nuisance arises because of the widespread nature of the home picketing tactic and from the critical involvement of physicians in the provision of the health care service in issue. The evidence reveals that the picketing has been highly intrusive and has had a demonstrable adverse effect on the family members of physicians and on neighbours. Indeed, in London, Ontario, one neighbour caught between two targeted doctors is in the process of selling his house because of the nuisance. Further, he has been advised that his house is not as valuable as it would otherwise be. The picketing at private residences has, therefore, occasioned very high bystander costs. Particularly illustrative is the incidental and unacceptable involvement of young children. It is reasonable to infer that this tactic deters doctors from providing abortion services.

The picketing of a particular home and a particular family is prima facie a private and public nuisance in the circumstances. The protestors' intentions clearly include the infliction of a nuisance. The doctors were warned before the picketing commenced that their homes would be picketed if they did not cease providing abortion services. The picketers were, therefore, fully aware of the objectionable nature of their conduct and intended their presence to be invasive as described in Frisby v. Schultz, supra. This is not the case of a slum landlord who has no office location to be picketed or of someone like a politician who may have, in certain circumstances, a potentially diminished expectation of privacy even at his or her home. Moreover, the nuisance arises not from a single episode of picketing but from the frequent and co-ordinated presence of picketers at one particular home in one particular neighbourhood or the reasonable apprehension of such frequency.

The tactic is designed to put pressure on a doctor through family, friends and neighbours. These intended "secondary effects" contravene a citizen's interest in residential privacy. This interest is consonant with constitutional values and protected by the law of nuisance: see Note, "Picketers at the Doorstep" (1974), 9 Harv. C.R.-C.L.L. Rev. 95 at pp. 105-09. The relationship between the sanctity of the home and constitutional values was discussed by Mr. Justice Black of the United States Supreme Court in Gregory v. Chicago, 394 U.S. 111 (1969), at p. 125, as follows:

Were the authority of government so trifling as to permit anyone with a complaint to have the vast power to do anything he pleased, wherever he pleased, and whenever he pleased, our customs and our habits of conduct, social, political, economic, ethical, and religious, would all be wiped out, and become no more than relics of a gone but not forgotten past. ... And perhaps worse than all other changes, homes, the sacred retreat to which families repair for their privacy and their daily way of living, would have to have their doors thrown open to all who desired to convert the occupants to new views, new morals, and a new way of life.... I believe that our Constitution, written for the ages, to endure except as changed in the manner it provides, did not create a government with such monumental weaknesses. Speech and press are, of course, to be free, so that public matters can be discussed with impunity. But picketing and demonstrating can be regulated like other conduct of men. I believe that the homes of men, sometimes the last citadel of the tired, the weary, and the sick, can be protected by government from noisy, marching, tramping, threatening picketers and demonstrators bent on filling the minds of men, women, and children with fears of the unknown.

While homeowners may have no absolute right to privacy, focused picketing is not prima facie justified in these particular circumstances. The doctor, family members and neighbours are held captive by the picketers in a manner completely at odds with free expression as previously discussed. The co-operation of physicians is vital to the provision of abortion services. Accordingly, the protest activity at the homes of physicians prima facie constitutes both a private and public nuisance and its prohibition, on an interlocutory basis, within a 500-foot radius of the affected doctors' homes, is constitutionally appropriate.

The repetitive presence of the picketers transcends its incidental communicative purpose and reveals a principal intent to harass physicians, their families and their neighbours by impairing their abilities to reasonably enjoy and occupy their homes and neighbourhoods. Various public statements by picketers and their mentors admit this purpose and, thereby, justify the constraints of nuisance-based interlocutory injunctive relief to the extent of 500 feet. ….

In my view, the evidence of focused residential picketing also constitutes a prima facie case of watching and besetting contrary to s. 423(1) of the Criminal Code. The conclusion that the defendants' conduct amounts to a public and private nuisance at all locations other than hospitals also leads to the prima facie finding of interference with economic interests by unlawful means. Reasonable alternative locations to residential sites exist for picketing including the hospital, clinic, and office locations in question. The restraining order pertaining to the clinic and office locations in no way renders nugatory picketing at those sites. (at pp. 325-9)

[11] Interforest Ltd. v. Weber (2000) 180 D.L.R. (4th) 176 (Ont. S.C.J.) involved an application to restrain union members from picketing at the residences of its employees and its sites where buses picked up and dropped off employees. In dealing with the residences of employees, Lederman J. stated: “Secondly, the picketing took place at private homes, not at any “place of business”. Lederman J. cites with approval the decisions in Western Cablevision Limited, supra, and British Columbia Telephone Company Co., supra. and then concludes:

Thirdly, the employees subject to the picketing at their homes were not the "alter ego" of the employer who is a party to the labour dispute with the picketing union employees. Moreover, the employees subject to the picketing were not acting in their capacity as the "agents" of their employer: they were not acting in the performance of their duties, nor were they acting at the employer's place of business. Rather, these employees, while subject to the picketing at their homes, were acting in their capacity as private citizens.

Fourthly, the picketing of the homes of these employees does not constitute "acts in connection with a labour dispute." When employees are not engaged in their employment role and are not attending at the company's place of business, but rather are living their personal domestic lives in the privacy of their homes, the acts directed towards them at their homes are outside the requirements of section 102 [of the Courts of Justice Act which defines a “labour dispute”]. The use of the term "secondary picketing" has not always found favour in the Ontario jurisprudence: see the judgment of Zuber, J. in Dominion Auto Transit, supra, at 643. Nevertheless, the law of "secondary picketing" maintains some currency at common law. In Maple Leaf Sports & Entertainment Ltd. v. Pomeroy [1999] O.J. No. 685 (Gen. Div.), at paragraph 32, Cameron, J. held that at common law, "secondary picketing" is not an "act in connection with a labour dispute". Cameron J., at paragraph 33, then defined "secondary picketing" as "picketing by people who have no business or contractual relationship to the subject of the picketing and where the subject of the picketing is not a party to the labour dispute and the subject's premises are not the place of business, in a broad sense, of the employer of the picketers" [emphasis added]. On the facts of this case, the picketing at the homes of employees was clearly a form of "secondary picketing". (at p.183)

[12] In dealing with the question of the balance of convenience, Lederman J. stated:

In the circumstances, the plaintiff's case is not frivolous and there is a serious issue concerning the tort of intimidation to be tried.

As for irreparable harm, where conduct is deliberately tortious and perhaps criminal, damages cannot be considered adequate compensation. Moreover, because the trade union itself is not a proper party to an action, the recovery of money damages from individual members of the trade union is not realistic.

As to the balance of convenience, the employees have to cross the picket line twice a day and then they must face further picketing at home. The importance of conveying the union's message to them once again at their homes is outweighed by the incidence of vandalism and harassment which may accompany the picketing, and by the value society places on the sanctuary of the home.

Accordingly, there should be an interlocutory injunction limiting the proximity of picketing around employees' homes. The order must be narrowly drafted in order to balance the competing legal rights to interfere as little as possible with the fundamental rights and freedoms of union members to convey information. As in Dieleman, supra, there will be an order enjoining the defendants and others from picketing within a 500 foot radius of where the property lines of employees intersect the public sidewalk or roadway at the residences of Interforest employees. (at pp.184-5)

[13] I am satisfied that the decisions in British Columbia Telephone Co., Western Cablevision Ltd., Rogers Cable TV, Dieleman, and Interforest, supra, state the law in British Columbia regarding the question of whether the homes of employees can be picketed. It is clear that they can not. However, the Defendants submit that the decision of the Supreme Court of Canada in Pepsi-Cola, supra, has changed the law in British Columbia as the Supreme Court of Canada has provided a clear message that the right of freedom of expression is paramount over the rights of property and privacy. I cannot reach that conclusion. I am satisfied that the learned Chambers Judge, the Saskatchewan Court of Appeal and the Supreme Court of Canada came to a different conclusion regarding the picketing of private residences of employees of Pepsi-Cola.

[14] Referring to the injunction that had been granted by the learned Chambers Judge, Cameron J.A. on behalf of the Court in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., (1998) 167 D.L.R. (4th) 220 (Sask. C.A.) stated:

In granting the injunction, the chamber judge said this:

Pepsi has established that the defendants have engaged in and are continuing to engage in numerous unlawful actions more particularly described in the statement of claim.

In particular there is no justification for the picketing of private residences of employees of Pepsi or intimidating or threatening the employees or their family members.

It is also illegal to interfere with the performance of contracts or to commit any act which is an interference with a person's enjoyment of his ownership or occupation of land. See: Gagnon v. Foundation Maritime Limited, [1961] S.C.R. 435; Western Cablevision Ltd. v. I.B.E.W., Local 213 [1986] B.C.J. no. 1501; Flint Construction (1970) Ltd. v. Busch, [1973] 6 W.W.R. 466 (Sask. C.A.).

The conduct of the defendants amount to intimidation, mischief and threats. This conduct is not only tortious but may be a violation of the Criminal Code. (at para. 17)

[15] The part of the interlocutory injunction referred to by the Court was as follows:

restraining all such persons from picketing, watching or besetting, trespassing, creating a nuisance or congregating at the residences of Pepsi's employees or their families, or intimidating, threatening or obstructing Pepsi's employees or their family members;

[16] In referring to that paragraph in the order that was granted, Cameron J.A. stated:

As for paragraph (4) of the order, the chamber judge restrained the picketing at the homes of the other employees of the company upon the principal authority of Western Cablevision Ltd. v. International Brotherhood of Electrical Workers Local 213 (B.C.S.C., Aug. 7, 1986, unreported). [now at [1986] B.C.J. (Q.L.) No. 1501] That case featured peaceful picketing at the home of one of the employees of Western Cablevision. The picketing was enjoined on the basis its object was to coerce the employee to breach his contract of employment with the cable company. The order also sounded in the tort of intimidation.

What occurred at the homes in the present case did not constitute peaceful picketing. Indeed it did not so much constitute picketing as such (though it took the outward form thereof), as it amounted to disorderly conduct accompanied by threats of harm to the resident employees of the company in an effort to have them refrain from doing what they had every right to do, namely come and go as they wished for whatever purpose. Chief among these purposes at the time in question was doing the work assigned to them by the company in consequence of the strike and lockout. That being so, the union can have no complaint over the restraint of this picketing. The actions of the striking employees amounted to intimidation, not of the company but of its other employees, which as noted earlier was actionable at the instance of the company. Their actions also amounted to a private nuisance. However, this would not as such have been actionable at the instance of the company, because it was the use and enjoyment of the property of these persons, not that of the company, that was unreasonably interfered with. In any event, the appeal against paragraph (4) of the order must fail, and nothing more need be said of the matter. (at paras. 61-62)

[17] In commenting on that portion of the Court of Appeal judgment, McLachlin C.J. and LeBel J. in their judgment on behalf of the Court stated:

With regard to the demonstration outside the homes of Pepsi-Cola's management personnel, we agree with the Court of Appeal that the injunction was well-founded, since the conduct was tortious. As Cameron J. A. stated, at pp. 243-44:

[18] I am satisfied that the picketing of the homes of employees of the Plaintiffs constitutes an unwarranted and unlawful watching and besetting, intimidation, public and private nuisance, and a clear attempt to coerce the employee to breach his or her contract with the Plaintiffs. The homes of employees are not places of business. All employees are entitled to reasonable enjoyment of their property and freedom from trespass. Whether or not the picketing of private homes to date has been contrary to the provisions of ss. 264, 175 and 423 of the Criminal Code dealing with causing a disturbance, harassment (whether or not including besetting and watching), and intimidation, I am satisfied that the picketing of homes which has occurred to date is prima facie a private and public nuisance which should be restrained and can be restrained on application by the Plaintiffs.

[19] This invasion of residential privacy is unwarranted. The interference in the privacy interest of an unwilling captive listener is not an attempt to educate or communicate but, rather, is merely a form of intimidation and coercion. When at home, employees are not acting as employees or agents of the Plaintiffs, they are not performing duties as employees, and they are not at places of business of the Plaintiffs. The picketing of homes is merely an unlawful interference with the person’s enjoyment of his or her ownership or occupation of property, an attempt to harass and intimidate, and, through harassment and intimidation, an attempt to induce an employee to breach the contract of employment that he or she may have with the Plaintiffs. The picketing of private homes is an activity which must be enjoined.

[20] These comments can also be said of temporary residences such as hotels and motels. The picketing of those locations also creates a private and public nuisance, and constitutes harassment, an attempt to intimidate, and a watching and besetting which must be enjoined. A temporary residence at a hotel or motel should be treated no differently than the usual residence of an employee.

[21] As well, employees of the Plaintiffs should be allowed to take their meals without picketers being present. Picketing at restaurants where employees are gathered either during the work day or before or after the work day can only be for the purpose of intimidation and harassment or for the purpose of inducing employees to breach their contracts of employment. Restaurants are not places of business of the Plaintiffs. Employees are only temporarily occupying restaurants and, when doing so, are not performing duties as employees. Picketing of restaurants is merely an attempt to harass and intimidate and, through harassment and intimidation, an attempt to induce an employee to breach the contract of employment that he or she may have with the Plaintiffs. I am satisfied that such picketing constitutes a private and public nuisance which should be enjoined.

[22] In addition to the reasons noted above, picketing at hotels, motels, and restaurants may also have the effect of interfering in the contractual relations between the employer at those hotels, motels, and restaurants and the employees at those establishments who may feel obligated not to cross a picket line or remain at work behind a picket line. That intended or unintended result of such picketing will not likely have the positive effect hoped for by the Defendants as they exercise their freedom of speech when they picket and may well constitute a private and public nuisance which could be enjoined at the instigation of the employer of those working at hotels, motels, and restaurants.

[23] I find that the conduct complained of amounts to a public and private nuisance leading to a prima facie finding of interference with economic interest by unlawful means. I am satisfied that the balance of convenience lies with the Plaintiffs so that the activities noted should be enjoined. In the circumstances, the August 5, 2005 Order should be varied in order to add the following further provisions:

(a) picketing, watching or besetting, trespassing, creating a nuisance or congregating at or near the residences of the Plaintiffs’ employees or management staff, or the residence of their families;

(c) molesting, assaulting, intimidating, obstructing, threatening or interfering with the Plaintiffs’ employees or management staff.

“G.D. Burnyeat, J.”
The Honourable Mr. Justice G.D. Burnyeat