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.”

Section 74 of the Ontario Labour Relations Act provides that a Union “shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit.” The wording of the section is significant. Unlike professionals such as doctors, lawyers, accountants, engineers and others, who are held to a standard of care not to act in a manner that is professionally negligent, Unions are protected from liability so long as they act in good faith. Decisions of the Labour Relations Board have commented on this duty in the context of termination grievances. In a case that I was involved in, Lenahan v. Canadian Auto Workers Local 222, [2004] O.L.R.B. Rep. 591, the Vice-Chair of the Board stated:

“The Board’s test for determining whether a trade union has violated its duty of fair representation is well established. The trade union can make mistakes. It is not the role of the Board to second guess the trade union. However, as was stated in Sharon Parker, [2003] O.L.R.B. Rep. July/August 653, the trade union must provide a persuasive account for its decision not to process the grievance further. In doing so, the trade union must prove that it put sufficient consideration into its decision in accordance with the seriousness and complexity of the matter. A termination grievance is among the most serious of grievances. In providing the Board with a persuasive account of why a grievance relating to termination is not pursued, the trade union must demonstrate that it has carefully considered the matter.”

Claims against Unions can be difficult to win. However, as set out in decisions of the Labour Relations Board, the Union must carefully review a termination grievance before deciding that it is not worthy to proceed through a hearing before an Arbitrator. Given the importance of such matters to the affected employee, that is how it should be.