Freedom of Expression (Civil)

Canadian Tire Corp. Ltd. v. Desmond, 1972 CanLII 380 (ON SC)

In my view, the following principles are applicable to the evidence before me:

(a)

"The right to peacefully picket or to make a truthful statement is assured and the authorities and statutory provisions deal only with the limitations upon such accepted right ...

. . . . . In short, then, the above authorities establish that picketing is only wrongful; (a) If it is featured by defamatory statements, or (b) If it is carried on in such a manner as to disclose a purpose other than peacefully "obtaining or communicating information", or (c) If it is part of a conspiracy to injure.

(The italics are mine.) Canada Dairies Ltd. v. Seggie, 1940 CanLII 348 (ON SC), [1940] 4 D.L.R. 725 at pp. 730 and 733, 74 C.C.C. 210, per Mackay, J. (as he then was).

(b)

But it is obvious that the subject-matter of an action for defamation is so special as to require exceptional caution in exercising the jurisdiction to interfere by injunction before the trial of an action to prevent an anticipated wrong. The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication and repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed; and the importance of leaving free speech unfettered is a strong reason in cases of libel for dealing most cautiously and warily with the granting of interim injunctions. We entirely approve of, and desire to adopt as our own, the language of Lord Esher, M.R. in Coulson v. Coulson, 3 Times L.R. 846 -- "To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel, before the jury have decided whether it was a libel or not. Therefore the jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable." In the particular case before us, indeed, the libellous character of the publication is beyond dispute, but the effect of it upon the Defendant can be finally disposed of only by a jury, and we cannot feel sure that the defence of justification is one which, on the facts which may be before them, the jury may find to be wholly unfounded; nor can we tell what may be the damages recoverable. Moreover, the decision at the hearing may turn upon the question of the general character of the Plaintiffs; and this is a point which can rarely be investigated satisfactorily upon affidavit before the trial, -- on which further it is not desirable that the Court should express an opinion before the trial. Otherwise, an injunction might be granted before the trial in a case in which at the trial nothing but nominal damages, if so much, could be obtained. Upon the whole we think, with great deference to Mr. Justice North, that it is wiser in this case, as it generally and in all but exceptional cases must be, to abstain from interference until the trial and determination of the plea of justification.

Portolite Inc. v. Romano, 2005 CanLII 18875 (ON SC)

[1] The plaintiff, Portolite Inc., operating as Toronto Central Sports and Social Club (“TCSSC”), moves for an interlocutory injunction to restrain the defendant, Tony Romano (“Romano”), from contacting or communicating in any way with TCSSC facility providers regarding any matter relating to the TCSSC or any of its representatives, including the subject matter of this action. The plaintiff’s Notice of Motion also seeks a similar injunction with respect to TCSSC members, but counsel for the plaintiff stated during the course of argument, that this relief is not being pursued.

[15] The plaintiff counters that this is a case of commercial speech, not free speech, relying on the decision of Nordheimer J. in Boehringer Ingelheim (Canada) Ltd. v. Pharmacia Canada Inc., 2001 CanLII 28351 (ON SC), [2001] O.J. No. 1911. In my view this clearly is not a case of commercial speech. In fact the plaintiff has not pleaded interference with economic relations. Furthermore, although there is a dispute between the parties as to Romano’s motive in sending the email, the plaintiff does not allege that his motive could be for economic gain. Accordingly, the more stringent test for granting an injunction to restrain free speech applies.

[20] The closest case to the facts of this case, which is relied on by the plaintiff, is the decision of Spence J. in Rosemond Estates Inc. et al. v. Levy et al., (2003) 2003 CanLII 44868 (ON SC), 65 O.R. (3d) 79 where a limited injunction was granted. In that case, however, Spence J. distinguished between the actions of the defendants which could be most fairly characterized as expressions of factual claims, and the actions which were apparently designed to discourage others from dealing with the plaintiffs. An injunction was only granted with respect to the words and conduct of the defendants where it appeared obvious that the “sole or principal purpose… was to interfere with and do harm to the business of the plaintiff”, which conduct Spence J. characterized as malice (at p. 85), relying on the decision of Ferguson J. in Pilot Insurance v. Jessome, [1993] O.J. No. 172 (Ont. S.C.J.) per Ferguson J. at paras. 39, 41 and 47.

Ideal Railings Ltd. v. Laborers’ International Union of North America, 2013 ONSC 701 (CanLII)

[42] The picketers are entitled to and can seek to bring economic pressure to bear on an employer through communication and enlisting the support of the public, customers, suppliers and so on. In Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp 1979 CanLII 23 (SCC), [1979] S.C.J. No. 45. the court stated “ This is done by dissuading various groups and individuals from having anything to do with the employer.” The "dissuading" is done through communication not a blockade of the employer's premises. It cannot be done by a complete disregard for the employer’s property rights through a deliberate blockade or obstruction to bring the employer's business to a halt or through other tortious or unlawful conduct.

[56] The intimidation used to stop Ideal employees from working at the subdivisions constitutes the tort of intimidation and the threatening statements and actions of the union members described above is unlawful as it constitutes a criminal offence. Clearly, the union members were not exercising their rights of free speech to communicate with the Outside Worker. It was an attempt to get them to stop working for Ideal through the use of intimidation, physical force and threats. These actions constitute tortious and unlawful conduct by the union.