Case: Purolator Inc. v. Canadian Union of Postal Workers, 2026 ONCA 515 (CanLII)
Keywords: labour law; picketing; ss. 101 and 102 of the Courts of Justice Act, R.S.O. c. C. 43
Synopsis:
The Canadian Union of Postal Workers (“CUPW”) commences a legal nationwide strike against Canada Post; CUPW members picket outside a Purolator facility in Scarborough, Ontario. Purolator trucks are stopped by CUPW members for between 15 and 31 minutes as they exit the facility. Purolator seeks and obtains an ex parte interim injunction pursuant to s. 101 of the Courts of Justice Act, R.S.O. c. C. 43 enjoining CUPW members from picketing Purolator’s Ontario properties for a period of 10 days. (See para. 8).
The Motion Judge (Koehnen J.) notes that Purolator did not follow the procedure set out in s. 102 of the Courts of Justice Act (i.e., the requirement to give notice), but interprets this section such that “s. 102 only applie[s] where an injunction seeks to restrain picketing of a ‘disputant’ in a labour dispute” and that “picketing…of a third party not involved in the labour dispute was not captured”. (See para. 9).
On appeal, CUPW argues that s. 102 applies; an ex parte injunction was unavailable/jurisdictionally invalid in these circumstances without notice. (See paras. 3, 6, 18). The Court of Appeal (Copeland, Monahan, and Gomery JJ.A.) allows the appeal and sets aside the injunction. (See para. 5).
Importance:
Citing the principles described in Borowski v. Canada (Attorney General), 1989 CanLII 123 (SCC) at pp. 353-56 and the more recent decision in Taylor v. Newfoundland and Labrador, 2026 SCC 5 at paras. 42-43, the Court of Appeal found that a “proper interpretation of s. 102 of the CJA is an important general issue of law that has never been resolved by this court and one that might otherwise evade appellate review”. (See para. 22). It therefore concluded that the issue should be resolved by the Court, despite its mootness (i.e., because there is no longer a “live controversy” with respect to picketing at the Purolator facility).
As described by the Court of Appeal,
Section 102(2) of the CJA provides that, subject to certain limited exceptions, injunctions restraining an “act in connection with a labour dispute” shall not be issued without notice…CUPW’s picketing of Purolator’s premises falls within the meaning of “an act in connection with a labour dispute” contemplated by s. 102 of the CJA and an injunction prohibiting the activity could only have been issued in accordance with the notice requirements of that section. (See para. 6).
The Court of Appeal addressed the interpretation of s. 102 on the correctness standard and in accordance with the “modern approach” (i.e., “examining the words of the provision in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”). (See paras. 30-31; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), at para. 21.). For the Court, the Motion Judge erred by “failing to give sufficient regard to the text of the provision as well as its context and purpose” – specifically, the focus of s. 102 is not whether the party seeking the injunction is a “disputant”. Rather, the proper question is whether the picketing by CUPW was an act “in connection with” its labour dispute with Canada Post. (See para. 34).
The Court of Appeal engaged in a detailed review of jurisprudence interpreting the words “in connection with” and the historical background of s. 102 at paras. 36-41. Bearing this in mind, the Court set out its “expansive interpretation” of s. 102 as follows:
I interpret s. 102 of the CJA as being engaged whenever an injunction is sought to restrain picketing that has an identifiable and distinct connection with an underlying labour dispute. Such a connection would necessarily be established where the Moving Party is itself a disputant in a labour dispute or steps into the shoes of the employer, in accordance with the definition of “labour dispute” in s. 102(1) of the CJA and the test set out in Trudel. But s. 102 will also be engaged where there is some other identifiable and distinct connection between the Moving Party and one or both of the parties to a labour dispute. (See para. 42).
The Court of Appeal went on to outline the pros and cons of its approach at paras. 43-45. The Court sought to balance the need for clarity as to the applicable procedure where an injunction is sought to restrain picketing and avoid “unproductive and wasteful litigation” over that procedure. Regarding the potential negative impact on third parties who are not directly involved in a labour dispute (i.e., imposing the procedural barrier to ex parte injunctions), the Court observed that s. 102 is “essentially a procedural mechanism” and s. 102(8) provides that “informal notice may be provided by telephone or otherwise”. In other words, the Court sought to add “flexibility” to “ensure that the application of s. 102 does not work injustice or undue hardship in a particular case”. (See para. 45).
In the circumstances here, the Court found:
- CUPW “established the existence of an identifiable and distinct connection between its picketing of Purolator and the underlying labour dispute between CUPW and Canada Post”;
- Canada Post’s majority ownership of Purolator enables it to exercise significant influence which is “significant to distinguish Purolator from other courier companies operating in the Canadian marketplace”; and
- the injunction was issued without jurisdiction and must be set aside. (See paras. 46-48).
Counsel for the Appellant: Stephen Moreau and Ryan White (Cavalluzzo, Toronto)
Counsel for the Respondent: Christopher Rae and Adam Gilani (Fasken, Toronto)