For some three weeks, public sector employees of the City of Toronto have been engaged in a lawful strike. The absence of garbage removal has understandably received the most attention. City workers have picketed at the entrance of transfer stations, at times interfering with access to those dump sites. This raises the question as to the rights of the parties in these circumstances.
There is no doubt that picketing is an important right, consistent with the fundamental freedoms of peaceful assembly and association set out in section 2 of the Charter of Rights and Freedoms. Where private parties are involved, section 102 of the Courts of Justice Act requires that reasonable efforts to obtain police assistance to prevent damage to property, personal injury or interference with lawful entry or exit from premises have been unsuccessful before an injunction to prevent the picketing can be obtained. These provisions represent a careful balancing of the rights of the parties in these highly charged and emotional situations: a recognition of the importance of picketing and an acknowledgment that, where the activity transcends lawful bounds, police action and if necessary Court intervention can be called upon. In a leading decision in this area, the Court of Appeal for Ontario made the following important statements:
Strikes and the picket lines that go with them are evolving human dramas where risks of property damage, personal injury or obstruction of lawful entry are best controlled by flexible and even handed policing. Only where this fails should the court, with its blunt instrument of the injunction, be resorted to.
The number of picketers is an important expression of solidarity in the taking of collective job action. Pending police assistance, there may well be some inconveniencing or impeding of those seeking to pass trough the picket line. The police response to requests for assistance will not always be immediate given their other policing responsibilities. The first failure of the police to respond instantaneously to a request for help does not necessitate the conclusion that police assistance has failed and that therefore the court can be resorted to. Absent questions of property damage or personal injury, a robust society can accommodate some inconvenience as a corollary of the right to picket in a labour dispute before the court will conclude that police assistance has failed, and that it has jurisdiction to intervene with injunctive relief.