Cite as: Royal Bank of Canada v. United Steelworkers of America, Local 9271, 1990 NSSC 5 1990 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: THE ROYAL BANK OF CANADA, corporate - and UNITED STEELWORKERS OF AMERICA, 9271, Sydney, Nova Scotia (representing striking Bank workers) and ANDY GILLIS (Business Representative) and KEN DEMONT, GLENN MILLER, and DON SIMM HEARD: at Halifax, Nova Scotia the Honourable Mr. Trial Division, on October 1st, 1990 DECISION: October 1st, 1990 hearing) COUNSEL: Donald H. McDougall, for the plaintiff Raymond F. Larkin the defendant, United Steelworkers of America, Local 9271 S. H. No. 74471 a body PLAINTIFF LOCAL DEFENDANTS (in Chambers), before Justice David W. Gruchy, (orally at conclusion of Q.C. and Cathy Gaulton, and Leanne MacMillan, for
1990 IN THE SUPREME COURT OF NOVA SCOTIA
TRIAL DIVISION
BETWEEN: THE ROYAL BANK OF CANADA, corporate - and UNITED STEELWORKERS OF AMERICA, 9271, Sydney, Nova Scotia (representing striking Bank workers) and ANDY GILLIS (Business Representative) and KEN DEMONT, GLENN MILLER, and DON SIMM GRUCHY, J.: (Orally) First of all, I would like to express my thanks to counsel. That is frequently I am very sincere, in that, you a bit of work, and that work is particularly helpful. I want to say before the decision, as well, my sole from the affidavit evidence. matters as fact, such statements reflect only the allegations in the affidavits, and do not represent findings S. H. No. 74471 a body PLAINTIFF LOCAL DEFENDANTS done by the courts and gentlemen have done quite I get into the body of source of information is If I appear to state any of fact
- in the usual sense, that is, such matters or credibility of witnesses. Eleven employees on Union Street in Glace Bay, by the United Steel Workers of America, union certified for collective bargaining purposes. August 27th, 1990 that union against that branch of the bank. According to the affidavits filed, of activities on the picket various dates in the latter part of September, non-unionized employees of the entering the bank. Consequently, opened or operated on various nine days. The non-striking prevented from errte r Lnq the bank standing in, and blocking, the main entrance to the bank. The blocking was physical and abuse and threats directed toward Glace Bay Police Department entry for the non-striking could have gained the entry, but warned the employees that they might not be able to get them out of the 2 I have not been able to assess of the Royal Bank of Canada Nova Scotia are represented Local 9271, a trade Since has been in a legal strike as a result line outside the branch on 1990, other bank were prevented from the bank could not be occasions, for a total of employees were physically by "about thirty" people was accompanied by verbal the non-strikers. The was unable to gain peaceful employees: or alternatively, bank later
- in safety. The police advised the bank manager an injunction". On September 17th, and operated by non-striking employees were prevented from twenty-five picketers", some prevented its opening. Physical assaultive action against the employees is, again, alleged to have occurred. The picketers outside the bank have consistently included a considerable number of the defendants, Ken Demont active in such picket line, and neither of them is a employee. As a result of perceived threats from the people on the picket line, the bank August 31st. Those same people were involved in preventing non-striking employees from lot. At that time, as well, made by the defendants, Ken Demont and Glenn Miller. of the picketers, who are not in various ways to the striking employees. From time to time, picketers have taken actions "besetting" . Access to the been prevented from time to time. 3 "to obtain the bank had been opened replacement employees. The leaving the bank by "about of whom blocked the door and of non-bank employees. Two and Glenn Miller, have been bank was not opened on Friday, leaving the bank's parking there were perceived threats Some bank employees, are related certain of the non-bank which are best described as bank's night depository has Striking employees have
- 4 sat in lawn chairs placed in such a or partly obstruct, the main door of the branch. On September 12th, Department found it necessary, Union Street because of "a front of the bank". On that the advice of the police, the not taken to the bank, and business. The Chief of the Glace Michael MacLean, has filed an He has outlined the types of police from the various Royal Bank employe~s. Mr. MacLean has situation at the bank, and, that the police may not be able to prevent harassment of the bank employees. He has discussed the police involvement in the matter and their attempts under control. At p. 3 of his affidavit, he stated: 1110. THAT the picketers which also include various who are not employees of the been regularly and continuously front of the Royal Bank and have been picketing the Royal Bank and difficulties for the obstructing their ability and by using various and gestures toward the manner as to obstruct, the Glace Bay Police or advisable, to block off very large, unruly crowd in day, as on other days, on replacement employees were the bank did not open for Bay Police Department, affidavit in this matter. complaints received by the been concerned about the in particular, is concerned to keep the situation at the Royal Bank, and numerous men Royal Bank, have attending in causing significant replacement staff by to enter and exit, intimidating comments Royal Bank replacement
- 5 staff when they are either entering or leaving the Royal Bank premises and surrounding area;" The Chief was, the relevant time period, concerned for the safety of bank employees. to be involved on several occasions employees into, or out of, were physically obstructing the entrance to the bank. picketers obviously ignored The Chief stated at p. 6 of his affidavit: "26. THAT I am very picket lines are able to continue in the numbers and manner that they have Police Force will not safety of the Royal as they enter and leave the Bank premises;" He refers to the the number of picketers ... and their increasingly aggressive attitude" . He has requested at the Royal Bank should be 5". [see p. 6, paras. 26 and 27 of his affidavit] other affidavits filed by various bank employees outlined the assaultive or tortious actions picketers, including the throwing of the bank and a clear threat of further physical violence. The action herein originating notice (action) and on various occasions during about violence, and His police force had to escort replacement the bank when the picketers The the requests of the police. concerned that if the to date, that our be able to ensure the Bank replacement staff "ever-increasing size in "that the number of pickets reduced in numbers to about taken by the of a rock at a window was commenced by an statement of claim dated
- 6 September 25th, 1990. By September 25th, 1990 the Royal injunctive relief. Notice of to the various defendants, is on file herein. The court is naturally reluctant action which may appear to relations, and which might limit a perfectly legal activity. It is necessary to determine equitable to grant the relief sought. The tests to be applied were set forth clearly by Beetz, J. of the Supreme (A.G.) v. Metropolitan Stores at p. 127 as follows: " The case law is abundant as well as relatively fluid with regard to the the courts in order to the situations in which it is just and equitable to grant an interlocutory injunction. it is the function of doctrinal analysis rather than that of judicial simply propose to give three main tests currently applied. The first test is a preliminary and tentative assessment of the merits of the case, but there is more than one way to test. The traditional whether the litigant who seeks the interlocutory injunction can make out The injunction will be Chesapeake and Ohio Railway Co. v. Ball, O.R. 843, per McRuer C.J.H.C., The House of Lords has first test in American Cyanamid interlocutory notice dated Bank of Canada has requested that application was given and an affidavit of service to take any be an interference in labour if it would be just and Court of Canada in Manitoba Ltd., [1987] 1 S.C.R. 110 tests developed by help better delineate Reviewing decision-making and I a bare outline of the describe this first way consists in asking a prima facie case. refused unless he can: [1953] at pp. 854-55. somewhat relaxed this Co. v. Ethicon
- 7 Ltd., [1975] 1 All E.R. that all that was necessary to meet this test was to satisfy the Court that there was a serious question to be tried as opposed to a or vexatious claim. Estey himself and five other in a unanimous judgment not comment upon this Financial Services Ltd. 1 S.C.R. 2, at pp. 9-10. American Cyanamid has point in many Canadian it has also been rejected instances and it does not appear to be followed in Australia •.. The second test consists in deciding whether the litigant who seeks injunction would, unless granted, suffer irreparable not susceptible or difficult to be in damages. Some judges time the situation of the other party to litigation and ask themselves granting of the interlocutory injunction cause irreparable harm if the main action fails. the view that this last part of the balance of convenience. The third test, called convenience and which ought perhaps to be called more appropriately the balance of inconvenience, is a determination of which of the two parties will suffer the greater or refusal of an interlocutory pending a decision on the merits." This case was referred the Supreme Court of Newfoundland Ltd. v. I.A.M., Lodge 950 67 A.:P.R. In that case, the learned trial 504, where it held frivolous J. speaking for members of the Court referred to but did difference in Aetna v. Feigelman, [1985] been followed on this and English cases, but in several other the interlocutory the injunction is harm, that is harm compensated consider at the same the whether' the would to this other party Other judges take aspect rather forms the balance of harm from the granting injunction, to by Adams, J. in in Easteel Industries Nfld. and P.E.I.R. 319; 206 judge reviewed
- 8 the decision of Beetz, J. and the review of it by Goodridge, J. (as he then was) in Labatt Brewing Co. v. Carling O'Keefe Breweries Canada Ltd. (1985), A.P.R. 66, is both instructive these cases American Cyanamid, supra, was reviewed. In our own court, of the issues involved herein in his oral decision in Brett Pontiac Buick GMC Ltd. v. N.A.B.E.T., 90 N.S.R. (2d); 230 A.P.R. 342. picketing, but many considerations are questions in that case and the He said at p. 347: "[22] In this proceeding it is the applicant to establish for the relief it seeks, which may befall it is compensable in damage, and balance of convenience of the injunction. [23] The Judicature Act court has the discretion to issue an injunction when it is just and provision is only an overriding which a court must be its discretion. Before that discretion the applicant burden of proof to which and in this case the applicant it has a substantive right or and establish a prima facie case that the right has or will be infringed harm will flow therefrom." 53 Nfld. & P.E.loR. 66; 156 and helpful. In each of Davison, J. reviewed some Local 920 et al. That case involved secondary common to both the questions involved here. incumbent on a prima facie case proof that any harm irreparable and not a finding that the favours the granting stipulates that the convenient, but that principle by guided in exercising resort can be had to must meet the I have made reference; must establish cause of action and that irreparable
- 9 And later, in the same case, Davison, J. said: "I 33] The solicitor for proceeding before me takes comfort in the Dolphin Delivery case, and states the proposition that before restrain a party from exercising the fundamental right of freedom of expression it must be shown that the Union is liable in tort. there is nothing startling proposi tion. The applicant to establish a cause of action before obtaining relief even if principles Charter were not involved, action in labour disputes founded in tort. In Ltd. and TIW Industries Association of Journeymen the Plumbing and Pipefitting United States and Canada, [1988] 1. W.W.R. 289; 59 J.A., of the Saskatchewan Court of Appeal stated at page 320: 'This court recently standard. We held of Sask. Mining Ltd. 2 W.W.R. 481, that interlocutory injunctive cases of this nature must show he has a fair question to be tried; he must establish a case. This is so first, in cases of this granting an injunction in the nature of a final order; second, the competing interests their nature, make start with a balanced weighted at the outset the plaintiff. It is, therefore, applications for the weigh the relative parties' cases and to the extent required by the standard, that the plaintiff of action: (i) that has a legal right the Union in the that it stands for the court should In my opinion about this would have had emanating from the and that cause of would probably be Sherritt Gordon Mines Ltd. v. United and Apprentices of Industry of the Locals 179 and 264, Sask. R. 104, Cameron, settled this in Potash Corp. v. Todd, [1987] an applicant for relief in do more than strong prima facie for two reasons: kind an order is. most often at stake, and it necessary to scale, not one in favour of necessary on these judge to carefully strengths of the satisfy himself, has a good cause the plaintiff and (ii) that the
- 10 defendant is interfering right. Each of the constituent elements of the cause of action out with sufficient certainty, of the governing standard, the sought-after relief. With that, I turn of principle upon which case rested. I begin general observations Corp. v. Todd: "These actions are, rooted in the And since picketing is not actionable on during lawful is not subject in civil actions involves the a tort of concern plaintiff, one that for example, with or enjoyment of in trespass or with his person (defamation), or economic relations procuring or inducing of contract or So to the extent may be accompanied independent tort trespass, defamation· and form an essential of another such breach of contract, itself constitute as that of nuisance, picketing may plaintiff's legal being interfered restrained. Otherwise not. And such may be put upon should not in beyond the tortious complained of and with that must be made in light to warrant to the foundation the companies' with the same I made in Potash of course, law of tort. per se when carried strikes, it to restraint unless it commission of to the inferferes, the ownership his land (as nuisance), or or reputation with his (as in breach intimidation) . picketing by an such as intimidation, so on or may ingredient as inducing or may a tort such then that so far as the rights are with be it may restraint as the defendant general extend conduct established
- 11 by the plaintiff. So the determination application for relief in a civil action arising out of a trade just as it does action, with The statement constitutes the upon which the have built his interlocutory relief It is necessary, to go first to of claim and to identify which of the potentially torts the plaintiff upon. Having is then necessary in detail the tort or torts to be able to framework of principle the lawfulness of falls to be determined."'" In the present examine the statement of claim what it is that is being claimed to make certain that the relief sought is appropriate. of claim herein. There are allegations of tortious conduct and resulting damages found in paras. document, which read as follows: "6. On various occasions since the commencement of the strike, the Defendants Bank Workers have been picketing the Plaintiff's premises in such a way that: (a) The Defendants Workers have illegally private property of the Plaintiff including of an injunctive dispute begins, in any other the pleadings. of claim foundation plaintiff will case for the he seeks. therefore, the statement applicable is relying done that, it to recall nature of the in issue so as construe the by which the picketing context, it is necessary to herein to determine just I have examined the statement 6, 7 and 8 of that and Striking and/or Striking Bank trespassed on the
- specifically the part in picketing the parking lot and the Plaintiff's Glace of which is the private Plaintiff; (b) The Defendants Workers have from obstructions t.o the the doorway and the night depository areas, directly in front of the Plaintiff' s Bay branch. These included vehicles or in part across driveway, the setting including lawn chairs Defendants and Striking front of the driveway, night depository of the Plaintiff's branch, and physically restraining exit by the front doorway. (c) The Defendants Workers have authorized, and/or taken part Plaintiff's Glace Bay branch with excessive numbers of pickets; (d) The Defendants defamatory comments staff in public in front of the Plaintiff's Glace Bay branch and a number of other persons staff of the Plaintiff; (f) The Defendants Workers have physically harassed staff of been working at Bay branch since the strike; (g) The Defendants Workers have verbally harassed customers Plaintiff as they and/or depart from Bay branch; 12 setting up and taking at the side door, in in the driveway of Bay branch, all property of the and/or Striking Bank time to time set up driveway entrance, Glace obstructions have being placed in whole the entrance to the up of lawn chairs, occupied by the Bank Workers in doorway and/or entrance and and/or Striking Bank consented to in picketing of the Andy Gillis has made to one of the Bank's in the presence of including other and/or Striking Bank and verbally the Plaintiff who have the Plaintiff's Glace commencement of the and/or Striking Bank and physically and suppliers of the have sought to enter the Plaintiff's Glace
- (h) The Defendants Bank Workers have threatened and intimidated staff of the Plaintiff at the Glace Bay branch during the strike, which threatening included the blocking staff of the Plaintiff exit from the Glace from parking areas Bay Branch; 7. The actions of the Striking Bank Workers 6 have continued notwithstanding written requests by representatives Plaintiff to the Defendant and Defendant Gillis that immediately. 8. By reason of the action of the Defendants, and others, the Plaintiff and is suffering irreparable harm." On the basis of affidavits and argument before me, I have reached the following conclusions: ( 1 ) The plaintiff has there is a substantial issue established, as well, a strong I conclude that the test in the applicable test in Nova Scotia, it is my finding that even the more stringent test been met. ( 2 ) I conclude, on the evidence before me, that unless the injunction sought herein (or an injunction with similar the plaintiff (or even parties not 13 and/or the Striking who have worked and intimidation has and preventing of as they seek to Bay branch and exit close to the Glace Defendants and the set out in Paragraph verbal and of the Steelworkers Union such actions stop has suffered damage established, not only that to be tried, but it has prima facie case. While American Cyanamid, supra, is of a prima facie case has basis of the affidavit provisions) is granted, involved herein) will,
- 14 in all probability, suffer irreparable harm~ not susceptible or difficult to be compensated in damages". The affidavit evidence has convinced definitive action is taken, there will be further obstruction to the entry to, and the exi t the opinion (subject to what of Po Li.ce j and I, accordingly, assaultive and tortious activity herein the words of Doherty, Electrotypers Ltd. v. Fell et al., s.c.), when he said: " ... It does not rest well with me that the court should tell members of acting in a law abiding manner that they should run the risk of being assaulted or their property deliberately at some future point person who assaulted them or to pay them some money. damages provide an inadequate inappropriate remedy. Substantial injury which cannot be adequately or appropriately compensated in damages constitutes irreparable harm ... " (3) On the question of the balance of convenience, I find that this balance certainly favours It is not intended by this order that the legal right to picket, and to strike, will be limited. that the picketing will be done manner. It is intended only that excesses which are unlawful will be prohibited. that is, "harm me that unless some from, the bank. I accept I say below) of the Chief conclude that further is probable. I adopt J. in Photo Engravers and 90 C.L.L.C. 12,005 (ant. the community who are of having damaged because a court may order the caused the damage In cases like this and indeed an the plaintiff. It is only intended in a lawfully acceptable
- 15 I might say, as that I had some reservations --J----- ..--- F defendant union and the defendant, presume to tinker with that form of order. I have some concerns I must express. The action was the site of the activi ty complained of is in Cape County. There is no reason why the matter should not have been commenced and heard in involves residents of Cape Breton, to attend the court hearings, first hand, the court proceedings them. I also express expressed many times by our courts, the last six weeks in Nova independent expressions of concern in labour disputes. It has courts that frequently injunctions ignored or disobeyed. On some you might have already noted, about the form of the order r-------J. ----r-- - Gillis. I will not about this case which commenced in Halifax, but Breton Sydney. The subject matter who ought to be able and to see and to hear, at which directly concern a concern which has been in particular, within Scotia there have been four about the court's role been the experience of the are granted, and then occasions, contempt orders
- 16 are granted. Then, however, on the main subject matter of approach the court to withdraw The effect, however, is that into disrepute by the failure to proceed with the contempt proceedings. That effect must be avoided. Recently, Glube, decision Cape Breton Development Corp. v. United Mine Workers District No. 26 et al. (S.H. 73931 unreported) at p. 2: " On August 17, after injunction, Mr. Justice interim injunction which August 22. The Order essence, restrained the members of the Union or their instructions from interfering or attempting to interfere with persons or vehicles entering on the plaintiff's premises threat of force, intimidation, other unlawful means. In essence, it prevented the Union from causing to or in the vicinity of the premises conspiring to have any any of these acts. Finally, the order indicated that lawful and 'peaceful the purposes of disseminating not prohibited. On August Labour Relations Board which among other things members to return to work happen. On August 23, a further injunction was granted by Mr. Justice Gruchy containing the same terms as the earlier injunction to the Corporation. This to be in effect until after the trial or further Order of the court. The see it, was commenced on August 23." the parties reach agreement the dispute, and agree to the contempt proceedings. the court has been brought C.J.T.D. said in an oral an application for an Davison granted an was to last until which was granted, in Defendants and all persons acting under by any force or coercion, or a nuisance adjacent and from other members commit picketing solely for information was 18 the Canadian issued a declaration required the Union and this did not which was granted new injunction was court action, as I
- 17 I am not saying justified in this case. I am the parties have experienced and that they have shown here, a willingness to work together to solve the problems that the parties are facing. I hope that the cooperation that you gentlemen have displayed before the court imparted to the parties who ought to be at the bargaining table working out their difficulties. An order, in the morning, will be granted. Halifax, Nova Scotia October 1st, 1990 that these concerns are comforted by the fact that and knowledgeable counsel, on behalf of their clients, can somehow or other be amended form sought this
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