Great Canadian Railtour workers and union lose bid to overturn injunction in B.C. Court of Appeal
A three-member B.C. Court of Appeal panel has dismissed an application by Teamsters Local 31 and several workers against the operator of the Rocky Mountaineer train.
In a June 1 ruling, Justices David Frankel, Daphne Smith, and Nicole Garson upheld a B.C. Supreme Court decision last year granting a second injunction against locked-out employees of Great Canadian Railtour Company Ltd.
The second injunction prohibited them from:
• Harassing replacement workers in any manner.
• Unlawfully watching or besetting any employees.
• Following or pursuing employees, customers, suppliers, and others.
In June 2011, B.C. Supreme Court Justice Nate Smith granted the first injunction after viewing evidence demonstrating that picketers had delayed vehicles from entering and leaving the company's stations for up to 20 minutes.
"The Union conceded that such action was illegal, but argued that it was too early in the dispute for the court to intervene," Frankel wrote on behalf of the panel in the recent B.C. Court of Appeal ruling. "It submitted its leadership should be given more time to gain control of the picket line."
The second injunction was granted by B.C. Supreme Court Justice Kenneth Affleck after Great Canadian Railtour filed an application seeking an order to stop the union and its members from following, intimidating, or harassing its employees.
One of the Great Canadian Railtour employees alleged that when she and four others disembarked from a train in North Vancouver and tried to get on a shuttle bus, picketers labelled them "scabs" and accused them of taking their jobs. The bus was allegedly followed into Vancouver.
This was followed by four other incidents in which either Great Canadian Railtour employees or railway passengers were harassed, according to the Court of Appeal ruling.
Under the Canada Labour Code (unlike the B.C. Labour Relations Code), federally regulated companies can employ replacement workers in the event of a strike or a lockout.
In the B.C. Court of Appeal case, the union maintained that there is no common-law tort (civil wrong) of harassment. Therefore, according to Teamsters Local 31, Justice Affleck had no legal authority to enjoin activity that constituted "harassing in any manner", according to the B.C. Court of Appeal ruling.
The panel of judges on B.C.'s highest court didn't accept that argument.
"In my view, the word 'harass' is well understood and is sufficiently precise to put picketers on notice as to the type of conduct in which they are not to engage," Frankel wrote, before citing various dictionary definitions of the word.
The union also argued that "yelling and pointing is protected speech and does not amount to grounds for an injunction". However, Frankel concluded that this "ignores the context in which the yelling and pointing occurred and, in particular, what words were used".
He cited one decision in which the word "scab" was deemed to be "a term of abuse and contempt".
"I am not suggesting that the mere use of derogatory words on a picket line is sufficient to support an injunction," Frankel wrote. "However, in the present case there can be no doubt that the word 'scab' was used on both June 27 and July 1, 2011...as a component of conduct aimed at threatening and intimidating Great Canadian's employees and passengers."
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