Telus Communications Inc. et al. v. Telecommunications Workers Union et al., 2005 ABQB 719

• Judge: Hughes, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 05, 2005
• Citations: 2005 ABQB 719;(2005), 385 A.R. 43 (QB)

Telus Com. Inc. v. TWU (2005), 385 A.R. 43 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. OC.076

Telus Communications Inc., Tele-Mobile Company, and TM Mobile Inc. (plaintiffs/applicants) v. Telecommunications Workers Union, Its Officers, Members, Servants, Agents and Representatives, and John Doe, Jane Doe and Other Persons Unknown to the Plaintiffs acting as Pickets and/or attending at or near the Premises of the Plaintiffs (defendants/respondents)

(0501 11065; 2005 ABQB 719)

Indexed As: Telus Communications Inc. et al. v. Telecommunications Workers Union et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

October 5, 2005.

Summary:

Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute. Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees.

The Alberta Court of Queen's Bench dismissed the application.

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - [See Injunctions - Topic 1701 ].

Injunctions - Topic 1701

Interlocutory or interim injunctions - Variation of interim injunction - General - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - The Alberta Court of Queen's Bench held that the applicable threefold test for granting an injunction was equally applicable on an application to vary an injunction - A judge had to make a preliminary assessment of the merits of the case and, once satisfied that the case was neither frivolous nor vexatious, proceed to consider the second and third parts of the test - However, the circumstances of this case fell within an exception, i.e., the result of the interlocutory motion would in effect amount to a final determination of the action - Accordingly, a more extensive review of the merits was called for and Telus had to establish a prima facie case in its application to vary the injunction previously granted before proceeding to the second and third parts of the test - See paragraphs 7 to 24.

Injunctions - Topic 6303

Particular matters - Injury to trade - Picketing (incl. secondary picketing) - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - The Alberta Court of Queen's Bench dismissed the application - Secondary picketing per se was not unlawful - It was the nature of the conduct that had to be assessed to determine whether the impugned conduct ought to be enjoined, i.e., whether the picketing was accompanied by a civil and/or a criminal wrong - Telus had failed to establish a prima facie case of torts that were actionable at Telus' own instance, notably, intimidation, inducing or procuring a breach of contract and/or interference with economic relations by unlawful means, that had interfered with its right to operate a business during a strike in an actionable manner - See paragraphs 25 to 76.

Labour Law - Topic 8164

Industrial relations - Picketing - Right to picket - Secondary picketing - [See Injunctions - Topic 6303 ].

Labour Law - Topic 8870

Industrial relations - Remedies - Injunctions - Interim - Picketing - To restrain - [See Injunctions - Topic 6303 ].

Torts - Topic 1004

Nuisance - General principles and definitions - Actionable nuisance - What constitutes - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - Telus argued that the picketers had committed the unlawful act of private nuisance - The Alberta Court of Queen's Bench held that Telus had established a prima facie case of private nuisance on the basis that some of the targets of the picketing were concerned or disturbed by the conduct - There were no allegations of physical threats or attempts to block employees from leaving their homes - However, some conduct did cross the line, specifically cases of shouting, hanging over a fence, horn honking, staking signs into lawns and picketing at 5:20 a.m. and telephoning the house and speaking to a child - See paragraphs 43 to 53.

Torts - Topic 3002

Trespass - Trespass to land - What constitutes - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - Telus argued that the picketers had committed the unlawful act of trespass - The Alberta Court of Queen's Bench held that Telus had established a prima facie case of trespass where the picketers had placed signs on the private property of the employees, threw eggs at their houses and hung over a fence and looked into the yard - See paragraphs 60 and 61.

Torts - Topic 5003

Interference with economic relations - General - Secondary picketing - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - Telus argued that the picketers had committed the tort of interference with economic relations - The Alberta Court of Queen's Bench rejected the argument - The picketing was in some measure directed against Telus - While there was a prima facie case of trespass and private nuisance, there was no evidence that the conduct interfered with Telus' business - Nor was there any evidence that Telus suffered economic loss as a result of the unlawful conduct - See paragraphs 67 to 69.

Torts - Topic 5208

Interference with economic relations - Contracts - Inducing or procuring breach of contract - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - Telus argued that the picketers had committed the tort of inducing or procuring breach of contract on the ground that one employee left for work one hour later than usual - The Alberta Court of Queen's Bench rejected the argument - The evidence included no statement to the effect that the employee was late for work or indicated what time he was expected to start work that day - Nor was there any evidence as to the terms of his employment contract - See paragraphs 64 to 66.

Torts - Topic 5282

Interference with economic relations - Intimidation and duress - Elements of - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - Telus argued that the picketers had committed the tort of intimidation - The Alberta Court of Queen's Bench rejected the argument - There was no evidence that any of the targets of the picketing submitted to any threats - Even if the conduct amounted to a threat to commit an unlawful act, it did not cause any of the employees to discontinue working for Telus - See paragraph 63.

Torts - Topic 5286

Interference with economic relations - Intimidation and duress - Acts not constituting intimidation - [See Torts - Topic 5282 ].

Torts - Topic 5410

Invasion of privacy - General - Violation of privacy - Statutory tort - Telus Communications Inc. and its employees, represented by the Telecommunications Workers Union, were involved in a labour dispute - Telus applied to vary an injunction restraining the union from picketing at the homes of Telus employees - Telus argued that the picketers had violated the employees' privacy by obtaining their addresses from union records, contrary to Alberta's Personal Information Protection Act (PIPA) - The Alberta Court of Queen's Bench rejected the argument - Even if a breach of the PIPA could be considered an illegal act, there was no evidence that the addresses were obtained from union records - It was equally plausible that the addresses were obtained from a phone book or from the exchange of personal information before the strike - Accordingly, there was no prima facie case of a breach of privacy - See paragraphs 54 and 55.

Cases Noticed:

Dreco Energy Services et al. v. Wenzel et al. (2004), 365 A.R. 135; 2004 ABQB 842, refd to. [para. 9].

Toronto Transit Commission v. Ontario Public Service Employees' Union et al., [1996] O.J. No. 885 (Gen. Div.), refd to. [para. 9].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385; 54 C.P.R.(3d) 114, refd to. [para. 11, footnote 1].

Potash Corp. of Saskatchewan Mining Ltd. v. Todd et al., [1987] 2 W.W.R. 481; 53 Sask.R. 165 (C.A.), refd to. [para. 20].

Sherritt Gordon Mines Ltd. and TIW Industries Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Locals 179 and 264, [1988] 1 W.W.R. 289; 59 Sask.R. 104 (C.A.), refd to. [para. 20].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al., [1999] 8 W.W.R. 429; 172 Sask.R. 40; 185 W.A.C. 40; 167 D.L.R.(4th) 220 (C.A.), affd. [2002] 1 S.C.R. 156; 280 N.R. 333; 217 Sask.R. 22; 265 W.A.C. 22; 2000 SCC 8, appld. [para. 26]; refd to. [paras. 20, 39].

Prince Rupert Grain Ltd. v. Grain Workers' Union, Local 333 et al. (2002), 174 B.C.A.C. 305; 286 W.A.C. 305; 8 B.C.L.R.(4th) 91; 2002 BCCA 641, refd to. [para. 20].

Telus Communications Inc. et al. v. Telecommunications Workers Union et al., [2005] B.C.T.C. 1236; 2005 BCSC 1236, dist. [para. 25].

Reach M.D. Inc. v. Pharmaceutical Manufacturers Association of Canada (2003), 172 O.A.C. 202; 65 O.R.(3d) 30 (C.A.), refd to. [paras. 38, 72, footnote 27].

Garry v. Sherritt Gordon Mines Ltd. - see Sherritt Gordon Mines Ltd. and TIW Industries Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Locals 179 and 264.

Sherritt Gordon Mines Ltd. and TIW Industries Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Locals 179 and 264, [1988] 1 W.W.R. 289; 59 Sask.R. 104 (C.A.), refd to. [para. 40].

Torquay Hotel Co. v. Cousins, [1969] 2 Ch. 106; [1969] 1 All E.R. 522 (C.A.), refd to. [para. 42].

Tock and Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181; 104 N.R. 241; 82 Nfld. & P.E.I.R. 181; 257 A.P.R. 181, refd to. [para. 43, footnote 23].

R. v. Elford (1947), 87 C.C.C. 372 (Ont. Mag. Ct.), refd to. [para. 57].

Everywoman's Health Centre Society (1988) v. Bridges (1993), 109 D.L.R.(4th 345 (B.C.S.C.), refd to. [para. 58, footnote 25].

Pacific Western Airlines Ltd. v. International Union, United Automobile Aerospace and Agricultural Implement Workers of America et al., [1986] 3 W.W.R. 531; 70 A.R. 67 (C.A.), refd to. [para. 74, footnote 28].

Authors and Works Noticed:

Encyclopaedia of Words and Phrases Legal Maxims (1987) (49th Cumm. Supp.), p. 350 [para. 58].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (2nd Ed. 2002), generally [para. 38].

Klar, Lewis N., Tort Law (3rd Ed. 2003), generally [para. 38, footnotes 17, 18]; p. 102 [para. 61, footnote 26].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), pp. 525 [para. 43, footnotes 21, 22]; 533 [para. 53].

Sharpe, Robert J., Injunctions and Specific Performance (2004 Looseleaf Supp.), paras. 2.660 to 2.690 [para. 18, footnote 7].

Counsel:

Anthony L. Friend, Q.C., and John R. Gilmore, for the plaintiffs/applicants;

William J. Johnson, Q.C., for the defendants/respondents.

This application was heard on September 19 and 28, 2005, by Hughes, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on October 5, 2005.