Court application by company in ongoing Okanagan casino strike denied by judge

Unionized employees at Gateway Casinos in Kelowna, Penticton, Vernon and Kamloops have been on strike since late July. Jim Douglas / Global News

An application by an Okanagan casino to prevent striking union workers from trespassing and harassing customers was dismissed by a Supreme Court judge this week.

The court case involved Gateway Casinos as the plaintiff and the B.C. Government Service Employees Union, the United Food and Commercial Workers Canada Union (Local No. 401), Jane Doe, John Doe and other unknown persons as the defendants.

Approximately 675 unionized workers at Gateway Casinos in Kelowna, Penticton, Vernon and Kamloops have been on strike since late June, seeking wage increases. This summer, a Gateway spokesperson said the company was offering wage increases between 2.4 and 13 per cent in the first year and two per cent every year after that.

Last month, Gateway Casinos applied for an application to stop the defendants in Penticton from trespassing, impeding access to the casino and stop intimidating and harassing the plaintiff’s non-union employees and customers. The case was heard in Vancouver on Sept. 17th.

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The application included an affidavit from the casino’s general manager, Michael Magnusson, stating a series of incidents took place between September 10th and 14th, prompting the court application. A DVD that contained several short video and audio clips was attached to the affidavit.

In a 13-page decision, Justice Michael Tammen ultimately denied the application, stating “the picketing behaviour of the union thus far has been generally peaceful and has not strayed into unlawful conduct. As noted earlier in this judgment, if the picketing results in an actual blockade of the parking lot entrances, injunctive relief would follow. Similarly, if the picketers’ behaviour escalates into tortious conduct of any variety, the court would intervene. We have not yet reached that juncture.”

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Gateway Casinos declined an interview with Global News, stating “this case continues to be before the courts so we are unable to comment in full. However, we note that it is unfortunate that we are in the position of needing to bring lawsuits in order to ensure that the union picketers behave lawfully and respect the safety of patrons, the public and employees.”

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Regarding the trespassing aspect, Gateway Casinos said union members were walking onto land that forms part of the casino parking lot. The defendants said video evidence presented by Gateway Casinos showed fleeting encroachments, or “petty trespass.”

The Justice mentioned several previous court cases regarding trespass and petty trespass, and his decision was to decide whether or not the picketers were performing an unlawful blockade.

“I am satisfied that the activities of picketers, as depicted in the video evidence, do not amount to a blockade,” wrote the justice. “The maximum time by which vehicles are delayed from either entering or exiting the parking lot is less than 10 seconds. 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. I do not find that such a brief delay to access or egress is sufficient to create circumstances requiring injunctive relief from the court.”

However, in a later paragraph, the justice added “I wish to be clear: those participating in the picket line must not block the driveway. They are entitled to walk across the driveway as part of the organized picket line but must not form a human blockade of the driveway.”

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As to the intimidation aspects, Gateway Casinos said the strikers were name-calling, with “scab” and “retired stripper” being two recorded instances.

Justice Tammen wrote “In short, there have clearly been instances of offensive language and gestures directed at casino patrons by picketers and apparently some going the other way. However, I am satisfied that on the evidence presented at this hearing, such conduct, although impolite and in poor taste, is not unlawful. It is largely, although perhaps not entirely, the sort of exchange which one might expect on a picket line during a bitter labour dispute. There is no suggestion in the evidence that any assaults or breaches of the peace have occurred.

“I do not wish to be seen as condoning the type of behaviour noted here, indeed, far from it. Clearly, the free exchange of ideas and ability to persuade others to one’s point of view has limits. If the conduct of the picketers escalates to the point of intimidation or harassment, the court will act swiftly to put an end to such conduct. However, we have not yet reached that point.”

For the full court decision, click here or here.

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