A BCGEU member on the picket line on the Penticton Cascades Casino picket line hollers at people entering the casino Tuesday. A Supreme Court Justice ruled against an injunction application by Gateway. Mark Brett/Western News

Gateway’s Penticton injuction denied by Supreme Court justice

The Supreme Court turned down a Gateway Casino injunction application relating to picket line action

Calling it “frivolous” and “doomed to fail,” Supreme Court Justice Michael Tammen refused to grant an injunction application by Gateway Casinos and Entertainment Ltd. involving striking union members in Penticton.

However, in the online judgement released last week (handed down Sept. 19) Justice Tammen said the union is “now on notice” that Gateway considers any encroachment on casino property to be unwanted trespass.

“The picketers should desist from following vehicles into the parking lot, even briefly. If the conduct of picketers which may be trespassing escalates, that too may give rise to a further application of this sort, which may well find favour with the court,” Tammen wrote in the judgement from the Sept. 17 hearing in Vancouver.

Named in the injunction, were the B.C. Government and Services Union and the Commercial Workers Canada Union (UFCW) Local. 401.

In the affidavit, Gateway wrote UFCW members joined BCGEU on the picket line Sept. 10 at which time conflict on the picket line escalated.

Related: Open letter from Gateway Casinos takes aim at ‘unreasonable’ demands from union

The company was seeking the injunction to prevent picketers from “trespassing on the plaintiff”s land, impeding access to it and intimidating or harassing the plaintiff’s non-union employees and customers.”

As evidence, Gateway general manager Michael Magnusson in his affidavit described a series of incidents from Sept. 10 to 14 and submitted video and audio clips of occurrences on the picket line from Sept. 10 and 12.

Justice Tammen noted his determination would be if the picketers’ actions are akin to a blockade or other unlawful actions.

“Here, all that is occurring is that a small number of picketers are walking slowly across the driveways which permit access to the casino parking lot,” he wrote. “From the video evidence, I am satisfied that some of the picketers deliberately walk as slowly as possible. In one clip, two picketers stop briefly in the middle of the driveway to do an impromptu dance as a car approaches the stop line of the exit.”

He also determined the amount of time people were stopped from entering or leaving the property to be less than 10 seconds.

Related: Despite labour dispute, Cascades Casino Penticton still ‘open for business’

“Although this delay results from an organized picket line, it amounts to nothing more than the everyday inconvenience experienced by motorists being required to stop for random pedestrians walking across a driveway,” wrote Tammen. “I do not find that such a brief delay to access or egress is sufficient to create circumstances requiring injunctive relief from the court.”

He ruled that picketers being on the casino property amounted to allowable “petty trespass.”

Justice Tammen also criticized the plaintiff’s claim of “intimidation and harassment” of non union staff and members of the public, saying there was no evidence presented in the affidavit.

“I pause to express my strong disapproval of counsel (for the plaintiff) including such misleading and inaccurate headings in affidavits,” he wrote. “Affidavits are meant to represent the admissible evidence that a witness could provide in examination in chief. There is no place in them for editorializing or inadmissible opinions, particularly when the substance of the affidavit does not support the assertions contained in the headings.”

In a written statement to the Western News, BCGEU President Stephanie Smith said: “I am very pleased that the court didn’t just deny Gateway’s application — which is a rarity in picketing disputes in B.C. — but also issued reasons that uphold picketing as an exercise of free expression and workers’ rights. That decision is a big win for all unions in B.C.”

Also as part of his ruling, Justice Tammen did say that some of the “examples of free expression of ideas” by picketers many people would find to be in “poor taste.”

“Perhaps the most unfortunate of the verbal comments noted relates to an exchange between two picketers but clearly within earshot of an elderly couple who had just entered the parking lot, referring to the condition of the female who was wheelchair bound,” wrote Justice Tammen. “When one picketer noted that fact, the other said something like ‘we hope she stays in it,’ referring to the wheelchair. The woman’s husband reported the conduct to the RCMP.”

Other examples included a non-union staff member filming picketers on the line when one of the picketers using her mobile phone in one hand “making a well-known gesture with the middle finger of the other hand.”

He also referenced an act going the other way where a picketer referred to a patron as a “retired stripper” however immediately prior to the ‘stripper’ comment the patron had: “engaged in a well-known form of expressive behaviour directed at the picketers, by dropping her pants and exposing her buttocks to them.”

Saying he did not want to be seen as condoning this type of behaviour Justice Tammen noted free exchange of ideas “has its limits” and if the situation escalates to the point of intimidation or harassment, the courts will swiftly act to put an end to it.

Meanwhile, Gateway public relations director Tanya Gabara said while the company was “disappointed” with the outcome it was pleased with other aspects of Justice Tammen’s ruling.

“As made clear by the Court, and contrary to the BCGEU’s position, union picketers do not enjoy a right to stop customers at the picket line to engage in a discussion about the labour dispute,” Gabara wrote in an email response. “The Court also held that employers enjoy unrestricted access and egress to their premises during labour strikes, and any picket line that amounts to a functional blockade is illegal. “Gateway believes that the Court’s clarification of the law in this area should help to change the picketers’ behaviour on the picket line.”

Gabara said this was the second time in the current dispute Gateway has sought court intervention, the other one was in August.

She said at that time it was successful in obtaining an injunction restraining the BCGEU and its members from “trespassing on Gateway premises in Kelowna and Vernon.”

She added the current monetary package which remains on the table and is “still unanswered” by the union proposes wage increases that would have every employee receiving an increase from seven to as much as 19 per cent in the first year.

More than 700 workers, BCGEU members at the Cascades Penticton, Cascades Kamloops, Playtime Kelowna and Lake City Vernon casinos walked off the job June 29.

Contract negotiations broke off in May and had been ongoing since the last collective agreement broke off in Sept. 2017.

Wage issues are at the heart of the dispute.

To report a typo, email: editor@pentictonwesternnews.com.


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