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Labour - Picketing. R.W. Tomlinson Limited v. Labourers’ International Union of North America, Local 527
In R.W. Tomlinson Limited v. Labourers’ International Union of North America, Local 527 (Ont CA, 2025) the Ontario Court of Appeal partially allowed an appeal, here brought against a decision which "dismissed the action for lack of jurisdiction". The context is one of labour arbitration and related non-party civil litigation.
Here the court considered labour arbitration jurisdiction over labour picketing issues, and how it has shifted from the courts after Weber:(a) The Law on Arbitral Subject-Matter Jurisdiction
[17] Before Weber v. Ontario, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, the prevailing view was that tortious or criminal picketing fell to the courts, not arbitrators, because it engaged general common law doctrines rather than specialized labour relations principles: Re Canex Placer Ltd. and CAIMAW, Local 10, [1975] 1 Can. L.R.B.R. 269 (B.C.L.R.B.), at pp. 275-6; Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 1983 CanLII 3072 (NB CA), 47 N.B.R. (2d) 205 (C.A.), at paras. 5-6, 9.
[18] Weber, however, replaced this formalistic distinction with a contextual approach. Under Weber, arbitrators have exclusive subject-matter jurisdiction pursuant to s. 48(1) of the LRA if the collective agreement expressly or implicitly covers the essential character of the dispute – in other words, if the dispute arises from the agreement. The facts underlying the dispute determine its essential character, not legal labels like “common law tort” or “labour dispute.” As well, arbitrators may apply the common law; it is not reserved for the courts: Weber, at paras. 41-44, 52, 54-56; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 25; Horrocks, at paras. 13, 22, 51.
[19] Thus, the pre-Weber caselaw’s assumption that arbitrators lack jurisdiction over disputes involving tortious conduct – even at the picket line – no longer holds. Rather, arbitrators can decide such disputes if the collective agreement covers them, even if they involve violent or criminal conduct: K.A. v. Ottawa (City) (2006), 2006 CanLII 15128 (ON CA), 80 O.R. (3d) 161 (C.A.), at para. 16 (distinguishing Irving Oil).
[20] Following Weber, arbitrators have developed significant expertise concerning picketing. By routinely adjudicating employee discipline cases involving picketing which arise under the collective agreement, they have become adept at setting its bounds and carefully distinguishing acceptable conduct from illegitimate overreach: Ball v. McAuley, 2020 ONCA 481, 452 D.L.R. (4th) 213, at para. 104. As well, the courts have affirmed arbitral jurisdiction over picketing or picketing-related post-strike conduct where the dispute arose from collective agreement provisions which applied retroactively: Burley v. Ontario Public Service Employees Union (2004), 2004 CanLII 34769 (ON SC), 133 L.A.C. (4th) 97 (Ont. S.C.), at paras. 37-48; Fuller v. Beecroft, 2007 CanLII 293 (Ont. S.C.), at paras. 10-23.
(b) The Arbitrator Has Subject-Matter Jurisdiction
[21] I agree with the motion judge that the arbitrator has subject-matter jurisdiction, although I arrive at that conclusion by a different route.
[22] The appellants correctly note that the motion judge erred in suggesting that the mere presence of a labour dispute is sufficient to establish arbitral jurisdiction. Not every labour dispute is arbitrable; only disputes that arise from the collective agreement fall within an arbitrator’s authority. A proper Weber analysis, therefore, requires consideration of both the essential character of the dispute and the scope of the agreement.
[23] Applying Weber, the arbitrator has subject-matter jurisdiction because the collective agreement encompasses the essential facts giving rise to the dispute. The renewed agreement applied retroactively and therefore governed the strike period. Although it does not expressly reference picketing, Article 4.1(a)’s management-rights clause grants R.W. Tomlinson exclusive authority over the conduct of its entire business and operations. Properly construed, this broad grant includes protection against picketing-related disruption of operations. The appellants allege precisely such interference – significant disruption of R.W. Tomlinson’s business by blocking access to employees, subcontractors, customers, and suppliers. The essential character of the dispute – interference with the employer’s business and operations – thus arises from the collective agreement.
[24] The jurisprudence supports this conclusion. In Ball, this court recognized that arbitrators possess the expertise required to evaluate picketing conduct contextually. In Fuller, the Superior Court held that a management-rights clause conferred arbitral jurisdiction over a picketing dispute because the employer’s conduct engaged its managerial authority (at para. 23). The principle operates symmetrically: where union or employee conduct interferes with management rights, the same jurisdictional analysis applies.
[25] The appellants’ counterarguments do not succeed. As explained above, R.W. Tomlinson cannot avoid arbitration by characterizing its allegations as common law torts arising from picketing, nor can it circumvent arbitral jurisdiction by linking its claims to those advanced by 283 Ontario and Tomlinson Environmental. Claims involving non-parties, a matter I address later, do not displace arbitral jurisdiction over disputes between parties to the collective agreement: Coté c. Saiano, 1998 CanLII 12963 (QC CA), [1998] R.J.Q. 1965 (C.A.), at p. 1970; Nadeau v. Carrefour des jeunes de Montréal, 1998 CanLII 13106 (QC CA), [1998] R.J.D.T. 1513 (C.A.), at pp. 1516–19. Further, Article 12.1’s strike prohibition does not negate the application of Article 4.1(a); Article 12.1 operates prospectively and reading it otherwise would retroactively prohibit the lawful strike that produced the agreement – an untenable interpretation.
[26] The motion judge also erred in finding that no blockade occurred. I agree with the appellants that a court hearing a r. 21.01(3) motion cannot resolve “disputed central questions of fact … going to the underlying merits of the claim,” even if such facts are relevant to jurisdiction: Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, in Canada, 2011 ONCA 728, 344 D.L.R. (4th) 332, at para. 12, leave to appeal refused, [2012] S.C.C.A. No. 27. However, this error does not affect the result. The finding was offered in the alternative and was not determinative of the motion judge’s principal conclusion that the dispute arises from the collective agreement.
[27] Finally, arbitration does not deprive R.W. Tomlinson of an available remedy. It may grieve an alleged breach of Article 4.1(a), even if the arbitrator ultimately declines jurisdiction over some tort claims. Moreover, at this preliminary stage, I am not persuaded that the arbitrator lacks jurisdiction to determine those claims. Although the appellants rely on a 2001 arbitral award in which jurisdiction was declined (a decision subsequently upheld under the former patent-unreasonableness standard),[2] more recent arbitral authority recognizes jurisdiction over workplace tort claims.[3] Whether jurisdiction ultimately exists is for the arbitrator to decide, and I would not foreclose that determination.
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