Ontario Court of Appeal Clarifies Path for Secondary Picketing Injunctions

The majority of the Court of Appeal concluded that the statutory definition of “labour dispute” is broad enough to capture secondary picketing even where the picketers and target are not in a direct employer-employee relationship, meaning that motions to restrain such conduct must follow the stricter procedural regime in section 102. The dissent maintained that the injunction granted below was properly issued under the general interlocutory-injunction provision in section 101 and that any appeal therefore lay to the Divisional Court (and not the Court of Appeal for Ontario). In the result, the picketed company’s motion to quash the union’s appeal was dismissed.

Quick Hits

• The majority read section 102 expansively, holding that its definition of “labour dispute” expressly includes disputes “regardless of whether the disputants stand in the proximate relation of employer and employee,” thereby capturing secondary picketing.
• Because an order made under section 102 is appealable to the Court of Appeal “without leave,” the majority determined that it—not the Divisional Court—had jurisdiction to hear the union’s appeal.
• The dissent stressed the formal route chosen by the motion judge (section 101), emphasizing that appellate jurisdiction turns on the nature of the order actually made, not on whether a different provision should have applied.

Majority vs. Dissent: A Snapshot

Majority (Gillese and Pomerance JJ.A.)

The majority applied a purposive, contextual reading of section 102, anchored in its legislative history. Relying on the “regardless of whether” language, the majority rejected the traditional distinction between primary and secondary picketing, aligning the statute with the Supreme Court’s approach in a 2002 decision addressing the legality of secondary picketing at common law. It ruled that the motion judge had erred in proceeding under section 101 and that the injunction—substantively aimed at restraining conduct “in connection with a labour dispute”—could only be granted under section 102. Consequently, the union’s appeal properly came to the Court of Appeal without leave, and the motion to quash was dismissed.

Dissent (Gomery J.A.)

The dissent adopted a different view, focusing on the order the motion judge actually made. Because the judge explicitly relied on section 101 and granted the injunction ex parte—something section 102 generally forbids—the dissent characterized the order as a section 101 order, making the Divisional Court the correct appellate venue. Whether the judge should have used section 102 was, in the dissent’s view, a merits question for the proper appellate court, not a basis for the Court of Appeal to assume jurisdiction.

Key Takeaways for Employers

• Secondary picketing now presumptively falls within section 102. The majority opinion indicates that when third-party businesses seek to enjoin picketers whose dispute lies elsewhere, they must proceed under the labour-specific framework in section 102, which imposes notice requirements, limits on ex parte relief, and short duration caps on interim orders.
• Expect more procedural hurdles. Section 102 demands advance notice (subject to rare emergencies), caps interim relief at four days, and offers an automatic right of appeal to the Court of Appeal without leave.
• Jurisdictional clarity remains important. Because the majority’s reasoning points businesses toward section 102, careful drafting of injunction motions and orders will be essential to avoid jurisdictional challenges and delays.
• Strategic planning is critical. Companies that encounter picketing related to a dispute not their own should prepare evidence and timelines that satisfy section 102’s procedural safeguards. Early engagement and rapid information-gathering will help navigate the procedural requirements for interim relief.

This decision signals that the procedural playing field in Ontario has shifted in matters of secondary picketing: employers facing secondary picketing will want to plan to meet the higher bar set by section 102.

Ogletree Deakins’ Toronto office will continue to monitor developments and will provide updates on the Cross-Border and Traditional Labor Relations blogs as additional information becomes available.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts