Civil contempt of court in the labour context

March 12, 2020 | Jeff N. Grubb, Amy Groothuis

An ongoing and high profile Saskatchewan labour dispute between Consumers’ Co-Operative Refineries Ltd. (the “Co-Op”) and Unifor Canada, Local 594 (the “Union”) spilled over into the courts recently, providing an opportunity to examine the court’s powers to find a party to a labour dispute in contempt of a civil order.

On December 5, 2019, after being served with a strike notice, the Co-Op locked out its approximately 800 unionized employees represented by the Union, which then established picket lines around the refinery’s Regina, Saskatchewan complex.  The Union sought to prevent or delay access to the Co-Op’s refinery, which in late December prompted the Co-Op to apply for an interim injunction preventing the picketers from impeding, obstructing, or interfering with the access to or from the Co-Op’s property, “except for the purpose of conveying information and/or soliciting support, to a maximum of five minutes,” which it received on December 23, 2019.  On December 27, the interim injunction was amended to increase the time from five minutes to ten minutes.

The Co-Op quickly discovered that the interim injunction limiting the amount of time picketers could legitimately prevent access to the Co-Op’s refinery complex was not being followed, so the Co-Op filed two applications seeking a finding of civil contempt by the Union and certain of its officials for breaching the injunction.  The decision on the first contempt application was released on January 22, 2020 (2020 SKQB 17) and the second on February 12, 2020 (2020 SKQB 38).  In both instances, the Union was found guilty of civil contempt resulting from repeated breaches of the interim injunction to limit interference with access to the Co-Op’s refinery complex.  In the second application, the Union was further found guilty of establishing a complete blockade preventing any access to the refinery, and one individual union member was found guilty of breaching the interim injunction (this individual was sentenced to complete 40 hours of community service).

The Co-Op had the onus of proving the alleged contempt on the criminal standard of proof beyond a reasonable doubt.  There are three elements to a finding of civil contempt, as set out by the Supreme Court of Canada in Carey v. Laiken, 2015 SCC 17, namely:

  1. The order must state clearly and unequivocally what should and should not be done;
  2. The alleged contemnor must have actual notice of the order; and,
  3. The alleged contemnor must have intentionally done the act that the order prohibits or intentionally failed to do the act that the order compels.

In both contempt applications, the Chambers Judge was satisfied beyond a reasonable doubt that the December, 2019 interim injunction order clearly stated what should and should not be done.  Similarly, in both instances the Union’s legal counsel was served with and acknowledged receipt of the interim injunction order, though in the first contempt application the Union argued for a “grace period” as the initial alleged breach of the interim injunction order occurred approximately 4 hours after counsel was served with the order.  The Chambers Judge rejected this argument, noting that the Union “would have had ample time to get the word out.”

With respect to the third element, in the first contempt application, the Chambers Judge was “easily satisfied” that the Co-Op had proven beyond a reasonable doubt that the Union intentionally disobeyed the order by obstructing the refinery’s entrance and exit.  In the second contempt application, the Union acknowledged that there were delays beyond the limit permitted by the interim injunction and that the entrances and exits to the refinery had been completely blockaded by January 20; however, the Union argued that the evidence did not prove who was responsible for obstructing the entrance to the Co-Op’s property.  More particularly, the Union argued that the Local was not responsible for the blockade, with the subtext to this defence being that the Union had effectively lost control of the situation, with the parent Unifor Canada possibly being responsible.

The Chambers Judge dismissed this argument completely, noting that it is the Union’s picket line, and if “outside agitators … hijacked the dispute” then the Union would be expected to seek assistance to restore its control over the picket line.  The evidence showed that the Union controlled and managed its picket lines, and that while national officials from Unifor Canada came to Regina to show support, the Union could not allow participation from outside supporters and then subsequently disown responsibility for the resulting actions.

Having found the Union guilty of civil contempt in both applications, the Court was then faced with imposing an appropriate sanction.  Interestingly, many of the decisions cited by legal counsel on the quantum of sanction occurred in illegal strike actions, not picketing, making these a somewhat unusual application.  In both instances, the Chambers Judge considered a number of aggravating and mitigating factors.  In the first contempt application, there were no mitigating factors, and the Chambers Judge was “satisfied a proper level of deterrence is required to bring home to the respondent the need to follow court orders, particularly those intended to bring some level of stability to a tense labour dispute” (2020 SKQB 17 at paragraph 31), which led to a fine in the amount of $100,000.00.  The Chambers Judge specifically identified the Union’s lack of apology or remorse for breaching the order as an aggravating factor.

In the second contempt application, the Chambers Judge highlighted the “multiple breaches” of the interim injunction and the previous contempt finding as aggravating factors, the latter of which “had no apparent effect in restoring respect for the court’s authority” (2020 SKQB 38 at paragraph 74), which led to a fine in the amount of $250,000.00.  The Union was provided with the option of paying half of the fine ($125,000.00) to a local community based organization that provides programming and shelter for underserved youth in Regina and the other half to the province as in the normal course.  Finally, the interim injunction was also amended to add a clause authorizing police to take any lawful measure deemed necessary to enforce the injunction and remove the blockade.

The parties have not yet reached a new collective bargaining agreement, though the province has appointed a special mediator to assist them in negotiations.  Regina Police Services removed the blockades preventing access to the Co-Op’s refinery complex, and the picketing continues.  Time will tell whether the fines totalling $350,000.00 will act as a deterrent to further breaches of the interim injunction, but the two contempt decisions provide a reasoned application of the law on civil contempt to labour disputes, and will be important authorities for future disputes involving picketing actions that contravene an injunctive order.

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