U.F.C.W., Local 1518, v. KMart Canada Ltd.

U.F.C.W., Local 1518, v. KMart Canada Ltd.
Collection
Supreme Court Judgments
Date
1999-09-09
Report
[1999] 2 SCR 1083
Case number
26209
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank; Major, John C.; Binnie, William Ian Corneil
On appeal from
British Columbia
Subjects
Constitutional law
Labour law
Notes
SCC Case Information: 26209
Decision Content
U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 1083
United Food and Commercial Workers, Local 1518 Appellant
v.
KMart Canada Ltd. and the Labour Relations Board
of British Columbia Respondents
and
The Attorney General of British Columbia,
the Canadian Labour Congress,
the Canadian Civil Liberties Association,
the Retail Council of Canada,
the Coalition of B.C. Businesses and
Pepsi‑Cola Canada Beverages (West) Ltd. Interveners
Indexed as: U.F.C.W., Local 1518 v. KMart Canada Ltd.
File No.: 26209.
1999: February 15, 16; 1999: September 9.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Major and Binnie JJ.
on appeal from the court of appeal for british columbia
Constitutional law – Charter of Rights – Freedom of expression – Union members distributing leaflets at secondary sites during labour dispute -- Provincial labour relations code prohibiting picketing at secondary sites -- Picketing defined broadly so as to include leafleting -- Whether definition of picketing infringes freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) – Labour Relations Code, S.B.C. 1992, c. 82, ss. 1(1), 65, 67.
Labour law – Labour disputes – Picketing – Leafleting – Union members distributing leaflets at secondary sites during labour dispute -- Provincial labour relations code prohibiting picketing at secondary sites -- Picketing defined broadly so as to include leafleting -- Whether definition of picketing infringes freedom of expression -- If so, whether infringement justifiable -- Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b) – Labour Relations Code, S.B.C. 1992, c. 82, ss. 1(1), 65, 67.
During a labour dispute with two KMart stores, members of the appellant union distributed leaflets at other KMart stores (the “secondary sites”). They handed out two types of leaflet, describing KMart’s alleged unfair practices and urging customers to shop elsewhere. The distribution of leaflets did not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets some customers appeared confused and a small number appeared to turn away. The Industrial Relations Council (which became the Labour Relations Board) ordered the union to refrain from picketing at the secondary sites. In written reasons for the order the Board rejected the union’s argument that the statutory definition of “picketing” was unconstitutional and should be read down to exclude leafleting in light of s. 2 (b) of the Canadian Charter of Rights and Freedoms . The union applied for a reconsideration of the decision. While the Board dismissed the application, because the labour dispute had been settled and become moot, it concluded that the restriction of secondary picketing in the Labour Relations Code was overly broad. The British Columbia Supreme Court dismissed the union’s application for judicial review of the Board’s reconsideration decision, and a subsequent appeal to the Court of Appeal was dismissed. At issue here was whether the definition of picketing in the Code infringes s. 2 (b) of the Charter and, if so, whether the infringement is justifiable under s. 1 .
Held: The appeal should be allowed.
The importance of work for individuals has been consistently recognized and stressed. A person’s employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. As well, the vulnerability of individual employees, particularly retail workers, and their inherent inequality in their relationship with management has been recognized. It follows that workers, particularly those who are vulnerable, must be able to speak freely on matters that relate to their working conditions. The fundamental freedom to speak about matters that relate to working conditions is explicitly recognized in s. 64 of the Labour Relations Code, which provides that a trade union and its members are free to communicate information to the public with regard to a labour dispute, except in a manner which may constitute picketing. The distribution and circulation of leaflets has for centuries been recognized as an effective and economical method of both providing information and assisting rational persuasion.
The definition of “picketing” contained in s. 1(1) of the Code is overly broad and infringes the guarantee of freedom of expression contained in s. 2 (b) of the Charter . While ss. 65(3) and 67 establish the parameters of permissible and impermissible picketing, s. 1(1) defines picketing in very broad terms which undoubtedly encompass leafleting. The operation of ss. 1, 65 and 67 of the Code has, at the very least, the effect of restricting consumer leafleting and thus infringes the union’s freedom of expression.
The infringement of freedom of expression cannot be justified under s. 1 of the Charter . Consumer leafleting is very different from a picket line, which acts as a barrier and impedes public access to goods or services, employees’ access to their workplace, and suppliers’ access to the site of deliveries. Consumer leafleting seeks to persuade members of the public to take a certain course of action through informed and rational discourse, which is the very essence of freedom of expression. Leafleting does not have the same coercive component as a picket line, and does not in any significant manner impede access to or egress from premises. Although the enterprise which is the subject of the leaflet may experience some loss of revenue, the harmful effects that flow from leafleting do not differ from the consequences resulting from a consumer boycott campaign through permissible means.
In deciding whether the consumer leafleting activity in question is acceptable, it will be important to determine whether consumers are able to determine for themselves what course of action to take without being unduly disrupted by the message of the leaflets or the manner in which it was distributed. Consumers must retain the ability to choose either to stop and read the material or to ignore the leafleter and enter the neutral site unimpeded. In this case, the leafleting conformed with the following conditions: (i) the message conveyed by the leaflet was accurate, not defamatory or otherwise unlawful, and did not entice people to commit unlawful or tortious acts; (ii) although the leafleting activity was carried out at neutral sites, the leaflet clearly stated that the dispute was with the primary employer only; (iii) the manner in which the leafleting was conducted was not coercive, intimidating, or otherwise unlawful or tortious; (iv) the activity did not involve a large number of people so as to create an atmosphere of intimidation; (v) the activity did not unduly impede access to or egress from the leafleted premises; (vi) the activity did not prevent employees of neutral sites from working and did not interfere with other contractual relations of suppliers to the neutral sites. Leafleting which complied with these conditions would normally constitute a valid exercise of freedom of expression carried out by lawful means, yet it would be prohibited by the impugned legislation.
The government sought to minimize the impact of the harmful effects of picketing on neutral third parties and the public. While a restriction on conventional picketing activity at neutral sites is rationally connected with the legislative objective, the restriction on leafleting activity is too broad. Just as in any other area where the legislature is called upon to balance competing interests on complex issues, deference should be shown to the political choices of the legislature in labour legislation. However, deference should not deter the courts from determining whether those political choices fall within constitutionally permissible parameters of reasonable alternatives. Where, as in this case, the Board applies the Charter in its decision, the Court must determine whether the Board’s decision was correct. The impugned provisions do not limit freedom of expression as little as reasonably possible in order to achieve the legislative objective. While there is no doubt that any activity which in fact impedes access to premises has the same effect as conventional picketing and therefore can be properly regulated and restricted, peaceful leafleting by a few individuals has as a general rule been accepted as a lawful means of disseminating information. The suggestion that today’s consumers will be intimidated by the mere sight of a few individuals distributing leaflets at the entrance to a shopping mall is not convincing. Sections 1, 65 and 67 of the Code operate as a blanket prohibition on any persuasive activity by striking or locked out employees at neutral sites. A total prohibition is clearly not carefully tailored to the objective of minimizing the harmful effects to third parties which would result from others impeding access to premises or encouraging employees to break their contract of employment. The definition of “picketing” in s. 1(1) of the Code is struck down and the declaration of invalidity is suspended for six months.
Cases Cited
Distinguished: RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; referred to: Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra, [1990] 3 S.C.R. 697; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Oakes, [1986] 1 S.C.R. 103; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; Harrison v. Carswell, [1976] 2 S.C.R. 200; Canada Safeway Ltd. v. International Brotherhood of Electrical Workers, Local 213 (1987), 16 C.L.R.B.R. (N.S.) 1; Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Construction Trades Council, 485 U.S. 568 (1988); Babbitt, Governor of Arizona v. United Farm Workers National Union, 442 U.S. 289 (1979); NLRB v. Retail Store Employees Union, Local 1001, 447 U.S. 607 (1980); Bakery Drivers Local 802 v. Wohl, 315 U.S. 769 (1942); Hughes v. Superior Court of California for Contra Costa County, 339 U.S. 460 (1950); International Brotherhood of Teamsters, Local 695 v. Vogt, Inc., 354 U.S. 284 (1957); Vriend v. Alberta, [1998] 1 S.C.R. 493; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369; International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Schachter v. Canada, [1992] 2 S.C.R. 679.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b).
Constitution Act, 1982, s. 52(1) .
Industrial Relations Act, R.S.B.C. 1979, c. 212 [am. 1987, c. 24, s. 1], ss. 85, 88.
Labour Relations Code, S.B.C. 1992, c. 82, ss. 1(1) “picket”, “picketing”, 2(1), 64, 65(3), (7), 67.
Authors Cited
British Columbia. Debates of the Legislative Assembly, June 10, 1987, p. 1695.
Carrothers, A. W. R., E. E. Palmer and W. B. Rayner. Collective Bargaining Law in Canada, 2nd ed. Toronto: Butterworths, 1986.
Fleming, John G. The Law of Torts, 9th ed. Sydney: LBC Information Services, 1998.
Manwaring, J. A. “Bringing the Common Law to the Bar of Justice: A Comment on the Decision in the Case of Dolphin Delivery Ltd.” (1987), 19 Ottawa L. Rev. 413.
Weiler, Joseph M. “The Regulation of Strikes and Picketing Under the Charter ”. In Joseph M. Weiler and Robin M. Elliot, eds., Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms . Toronto: Carswell, 1986, 211.
Weiler, Paul C. Reconcilable Differences: New Directions in Canadian Labour Law. Toronto: Carswell, 1980.
Weiler, Paul C. “The Charter at Work: Reflections on the Constitutionalizing of Labour and Employment Law” (1990), 40 U.T.L.J. 117.
APPEAL from a judgment of the British Columbia Court of Appeal (1997), 39 B.C.L.R. (3d) 157, 149 D.L.R. (4th) 1, 94 B.C.A.C. 299, 152 W.A.C. 299, 2 Admin. L.R. (3d) 131, [1998] 2 W.W.R. 312, 46 C.R.R. (2d) 305, 39 C.L.R.B.R. (2d) 294, 97 C.L.L.C. ¶220-087, [1997] B.C.J. No. 1629 (QL), affirming a decision of the British Columbia Supreme Court (1995), 14 B.C.L.R. (3d) 162, 34 C.R.R. (2d) 114, 39 C.L.R.B.R. (2d) 264, 96 C.L.L.C. ¶210-007, [1995] B.C.J. No. 2324 (QL), dismissing the appellant’s application for reconsideration of a decision of the British Columbia Labour Relations Board (1994), 24 C.L.R.B.R. (2d) 1, 95 C.L.L.C. ¶220-010. Appeal allowed.
John Baigent, for the appellant.
Patrick G. Foy, Q.C., for the respondent KMart Canada Ltd.
Joseph J. Arvray, Q.C., and Charles Gordon, for the respondent the Labour Relations Board of British Columbia.
George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.
Steven M. Barrett, Frank Addario and Vanessa Payne, for the intervener the Canadian Labour Congress.
John B. Laskin and Trevor C. W. Farrow, for the intervener the Canadian Civil Liberties Association.
John R. Sproat, for the intervener the Retail Council of Canada.
Andrea L. Zwack, for the intervener the Coalition of B.C. Businesses.
Written submissions only by R. G. Richards, Q.C., for the intervener Pepsi‑Cola Canada Beverages (West) Ltd.
The judgment of the Court was delivered by
//Cory J.//
1 Cory J. -- The peaceful distribution of leaflets accurately setting out the position of employees involved in a labour dispute with their employer would ordinarily be protected by the guarantee of freedom of expression provided by s. 2 (b) of the Canadian Charter of Rights and Freedoms . It is conceded that a legislative restriction on picketing which prohibits members of a union from peacefully distributing such leaflets at separate and distinct divisions of their employer infringes s. 2 (b) of the Charter . The question then arises, can that legislation be justified pursuant to s. 1 of the Charter ?
I. Factual Background
2 The respondent KMart Canada Ltd. operates several stores in British Columbia. Seven of them are located in the Lower Mainland, two in Victoria, one in Campbell River, and one in Port Alberni. The appellant is the union certified to represent employees at the Campbell River and Port Alberni stores. Those stores are the “primary employer”. The union is not certified to represent employees in the Lower Mainland or Victoria stores. These stores will be referred to as the “secondary sites”. During a labour dispute with the primary employer, members of the appellant union distributed leaflets at the secondary sites.
3 The Labour Relations Board in its decision described the leafleting activity in this way. Between December 4 and 6, 1992, groups of employees ranging from two to 12 individuals representing the appellant distributed leaflets to prospective KMart customers at the secondary sites. The individuals stood from two to 20 feet from the entrance of the stores and the majority were between six and eight feet from the doors. They handed out two types of leaflets, describing the respondent’s alleged unfair practices and urging customers to shop elsewhere. The leaflets made clear that the appellant was seeking only a consumer boycott of the respondent’s stores. The relevant parts of the leaflets read as follows:
ATTENTION K-MART SHOPPERS!!!
DID YOU KNOW THAT:
K-MART locked out over 140 employees, preventing them from working in their K-MART stores in Campbell River and Port Alberni in an attempt to stop the employees from attaining the basic needs within a first collective agreement.
. . .
U.F.C.W. LOCAL 1518, AND THE LABOUR MOVEMENT OF BRITISH COLUMBIA ARE ASKING YOU:
PLEASE DO NOT SPEND YOUR CHRISTMAS $$$$ AT K-MART
SHOP AT THEIR COMPETITOR’S STORES!!
For the past six months, over 140 members of the United Food and Commercial Workers Union, Local 1518, have been on strike, at the K-MART stores in Campbell River and Port Alberni.
. . .
We are asking for your assistance by boycotting this giant multinational corporation called K-MART. By doing so, we hope to move one step closer to eliminating the exploitation of employees who work for K-MART and return our striking members back to work with dignity, respect, and a fair collective agreement.
Because Christmas is the most profitable time of the year for K-Mart, we are asking you: please do NOT spend your Christmas dollars at K-MART!
All that the striking members want for Christmas is a fair and decent collective agreement with K-MART!
We want to thank you for your help, and wish you the best this season has to offer.
4 The distribution of leaflets did not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores. Neither was there any evidence of verbal or physical intimidation. The evidence did indicate that as a result of the distribution of leaflets some customers appeared confused and a small number appeared to turn away.
5 On December 8, 1992, pursuant to the Industrial Relations Act, R.S.B.C. 1979, c. 212, the respondent applied to the Industrial Relations Council to restrain the leafleting activity carried out by the members of the appellant at the secondary sites. The Industrial Relations Council found that the appellant had contravened ss. 85 and 88 of the Act and ordered it to refrain from picketing at the secondary sites.
6 The Act was replaced by the Labour Relations Code, S.B.C. 1992, c. 82, which came into force on January 18, 1993. The Industrial Relations Council was continued as the Labour Relations Board and for the purpose of the present appeal, the relevant picketing provisions in the Code are in substance similar to those contained in the Act. The applications, hearing and orders issued by the original panel were all under the Act, but the reasons for the orders were issued by the Board under the Code.
7 On February 9, 1993 the Board issued written reasons for the orders made on December 11 and 16, 1992. It rejected the appellant’s argument that the statutory definition of “picketing” in the Act was unconstitutional and should be read down to exclude leafleting in light of s. 2 (b) of the Charter . The Board concluded that leafleting came within the legislated definition of picketing since it was an attempt to persuade customers not to enter the stores of the secondary employer.
8 The appellant applied for a reconsideration of the Board’s decision. This application provided the Board with the opportunity to determine whether the Charter guarantee of freedom of expression required that consumer leafleting be excluded from the prohibition of secondary picketing. On July 15, 1994 the review panel of the Board dismissed the application for reconsideration. However, it was unanimous in finding that the restriction of secondary picketing in the Code was overly broad. It held that insofar as the definition of “picketing” included any persuasive activity at the location of a secondary employer it prohibited more expressive activity than could be justified by the legislative objective. While the majority concluded that the definition of “picketing” should be read down to exclude some, but not all, instances of leafleting, the dissenting members concluded that consumer leafleting per se was not picketing and found that the Code’s inclusion of leafleting in its definition of picketing could not be justified in any case under the Charter .
9 The majority declined to draw a complete distinction between conventional picketing and leafleting. It would permit secondary consumer leafleting only insofar as it attempted to persuade consumers not to purchase struck goods or, in the case of a functionally integrated employer, not to do business with that employer. The majority found that such leafleting would not expand an existing labour dispute. However, in its view, any other leafleting activity could properly be restricted and those restrictions would pass constitutional muster. In the opinion of the majority, the appellant’s leafleting activity would have been lawfully enjoined as it was directed at stores which, under the Code, were separate and distinct operations of the primary employer.
10 The appellant sought judicial review of the Board’s reconsideration decision. This application was dismissed by Huddart J. (as she then was). A subsequent appeal to the British Columbia Court of Appeal was dismissed.
11 Before this Court, the respondent and the Attorney General of British Columbia, who intervened to defend the constitutionality of the impugned provisions, conceded that ss. 1, 65 and 67 of the Code infringe s. 2 (b) of the Charter but argued that those infringements could be justified under s. 1 of the Charter . The appellant, on the other hand, submitted that leafleting activity could be distinguished from picketing and while the latter contained tortious elements and thus could be regulated, the former constituted lawful expression and there was no basis to restrict it in a free and democratic society.
12 It must be emphasized that the only activity at issue in the present appeal is the peaceful distribution of leaflets at the secondary sites. At the Langley store, members of the appellant formed a “chain” which prevented customers from entering the store and, at the Surrey store, members carrying placards were present at the entrance to the parking area of the shopping mall where the store was located. Both these activities were restrained on the ground that they constituted picketing in the conventional sense. The appellant has not challenged the order restraining these activities and thus they are not in question and need not be considered. Further, leaflets were left on the windshield of cars in the store parking lots but this activity was held not to come within the definition of picketing. It was not restrained by the injunction and thus is not at issue in the present appeal.
13 In my opinion, the definition of “picketing” contained in s. 1(1) is overly broad and infringes the guarantee of freedom of expression. It cannot be justified on the basis that it is necessary to achieve the legislative objective of minimizing the harmful effects to third parties which would result from others impeding access to premises or encouraging employees to break their contract of employment.
II. Relevant Statutory and Constitutional Provisions
14 Labour Relations Code, S.B.C. 1992, c. 82
Definitions
1. (1) In this Code
. . .
“picket” or “picketing” means attending at or near a person’s place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to
(a) enter that place of business, operations or employment,
(b) deal in or handle that person’s products, or
(c) do business with that person,
and a similar act at such a place that has an equivalent purpose;
. . .
Purposes of the Code
2. (1) The following are the purposes of this Code:
. . .
(c) to minimize the effects of labour disputes on persons who are not involved in the dispute;
(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;
(e) to ensure that the public interest is protected during labour disputes;
. . .
Information
64. A trade union or other person may, at any time and in a manner that does not constitute picketing as defined by this Code, communicate information to a person, or publicly express sympathy or support for a person, as to matters or things affecting or relating to terms or conditions of employment or work done or to be done by that person.
Picketing
65. . . .
(3) A trade union, a member or members of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union performs work under the control or direction of the employer if the work is an integral and substantial part of the employer’s operation and the site or place is a site or place of the lawful strike or lockout.
. . .
(7) For the purpose of this section, divisions or other parts of a corporation or firm shall, if they are separate and distinct operations, be treated as separate employers.
. . .
Picketing restricted
67. Except as provided in this Code, a person shall not picket in respect of a matter or dispute to which this Code applies.
Canadian Charter of Rights and Freedoms
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
. . .
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
Constitution Act, 1982
52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
III. Judicial History
A. British Columbia Supreme Court (1995), 14 B.C.L.R. (3d) 162
15 The application for judicial review was dismissed and the Board’s decision was upheld although the reasons were not adopted. The appellant submitted that the majority of the Board made a reversible error when they accepted an interpretation of “picketing” that infringed the Charter without considering whether the definition could sustain an interpretation that would not do so. The error was said to arise from a failure to apply the presumption of constitutional validity. The chambers judge rejected that argument. She held that the Board was entitled to a high degree of deference as a highly specialized administrative tribunal and that absent Charter considerations, the Board was free to determine what constitutes picketing for the purposes of the Code.
16 Huddart J. then turned to the issue of whether Charter considerations could prevent the picketing prohibition from applying to secondary consumer leafleting. She held that the restrictions on picketing constituted a prima facie infringement of s. 2 (b) of the Charter . Thus the sole issue was whether the legislature’s infringement of that right was saved under s. 1 of the Charter . Huddart J. adopted a contextual approach and found that insulating third parties from the effects of labour disputes was a pressing and substantial objective. She agreed with the majority of the Board that the proportionality step of the s. 1 analysis was met insofar as the activity of the appellant was concerned. She held that the legislature had a reasonable basis for striking the particular balance between the competing interests. She noted that the legislature was owed deference in reaching the appropriate balance in such a complex labour law issue and she concluded that the legislature’s choice should not be disturbed by the courts.
B. British Columbia Court of Appeal (1997), 39 B.C.L.R. (3d) 157
17 Hinds J.A. for the court considered that the prohibition of consumer leafleting was the primary issue to be examined in this appeal. The Court of Appeal also acknowledged that restrictions on picketing constituted a prima facie limitation on freedom of expression and that the only issue to be resolved was whether the prohibition against consumer leafleting was, under s. 1 of the Charter , a reasonable limit on freedom of expression.
18 Hinds J.A. agreed with Huddart J.’s characterization of the legislative objective as “insulating third parties from harmful effects of labour disputes” (p. 172). In his view, this objective was sufficiently pressing and substantial to warrant an infringement of the appellant’s freedom of expression. Further, Hinds J.A. held that Huddart J. did not err in her conclusions regarding the proportionality requirement under s. 1 of the Charter . Hinds J.A. held that based on the Board’s finding that consumer leafleting was equivalent to traditional picketing, the s. 1 Charter analysis carried out in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, applied. He noted that the facts of this case were somewhat different but nevertheless he held that the considerations under s. 1 in Dolphin Delivery were pertinent to this case.
19 Accordingly, the appeal was dismissed.
IV. Issues
20 On June 29, 1998, the Chief Justice stated the following constitutional questions:
1. Do ss. 1 (definition of “picket” or “picketing”), 65 and 67 of the Labour Relations Code, S.B.C. 1992, c. 82, limit freedom of expression as guaranteed by s. 2 (b) of the Canadian Charter of Rights and Freedoms to the extent that they prohibit union members from distributing leaflets at secondary sites of the employer in the context of a labour dispute?
2. If the answer to Question 1 is yes, is the limit reasonable and demonstrably justified under s. 1 of the Charter ?
V. Analysis
A. Freedom of Expression
1. Overview
21 Freedom of expression is fundamental to freedom. It is the foundation of any democratic society. It is the cornerstone of our democratic institutions and is essential to their functioning. See Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569, at para. 28. The fundamental value of free expression was referred to by me in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at p. 1336:
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over‑emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2 (b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2 (b) should therefore only be restricted in the clearest of circumstances. [Emphasis added.]
22 Moreover, it has repeatedly been held that rights and freedoms under the Charter must be interpreted generously in order to secure the full benefit of the Charter ’s protection. See Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at pp. 155‑56; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344, Edmonton Journal, at p. 1356.
23 The decision in Dolphin Delivery was the first attempt to interpret s. 2 (b) of the Charter . The holding that labour picketing was a protected form of expression was an auspicious beginning. McIntyre J. underlined the fundamental value of free expression in the following terms. At p. 583 he wrote:
Freedom of expression is not, however, a creature of the Charter . It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.
24 Yet, the guarantee of freedom of expression must always be considered in the context presented by each case. See Edmonton Journal, at pp. 1355‑56; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 246‑47; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 760; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at paras. 71‑72 and 132‑34; Libman, at para. 60, and Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 91. It is the relative value of freedom of expression in the context in which it is presented which will affect the balancing which takes place under s. 1 of the Charter . In this case, the leafleting activity was carried out in support of the appellant’s position in a labour dispute. Although it has been conceded by the parties that the impugned legislation infringes s. 2 (b), the extent of the protection afforded by that section of the Charter in the context of labour relations must still be explored in order to determine whether the legislation may be justified under s. 1 of the Charter .
2. Freedom of Expression in the Labour Relations Context
25 The importance of work for individuals has been consistently recognized and stressed. Dickson C.J. in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, observed at p. 368: “A person’s employment is an essential component of his or her sense of identity, self‑worth and emotional well‑being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self respect.” See also McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 300; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 94, and Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989, at para. 66. As well, the vulnerability of individual employees, particularly retail workers, and their inherent inequality in their relationship with management has been recognized. See Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1051; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, at p. 773. It follows that workers, particularly those who are vulnerable, must be able to speak freely on matters that relate to their working conditions. For employees, freedom of expression becomes not only an important but an essential component of labour relations. It is through free expression that vulnerable workers are able to enlist the support of the public in their quest for better conditions of work. Thus their expression can often function as a means of achieving their goals.
26 The facts of this case underscore the importance of freedom of expression in labour relations. The leafleting activity by the appellant was conducted in the course of a lawful dispute which had resulted in the employees being locked out for six months. The leaflets appealed to the public not to spend their money at KMart stores. They stated that 95 percent of the workforce were women and part-time employees and that the workers were seeking their first collective agreement. The collective bargaining issues included not only wages and working conditions, but also employment equity and job security. The Board recognized ((1994), 24 C.L.R.B.R. (2d) 1, at p. 29) that:
In attempting to obtain a first collective agreement, these employees were seeking the basic fundamentals that a collective agreement provides; for example, a grievance procedure, unjust dismissal provisions, seniority, improved wages and working conditions. These basic contract provisions underlie the value of collective bargaining -- rule of law, industrial democracy, voice, dignity and job security.
27 The fundamental freedom to speak about matters that relate to working conditions is explicitly recognized by the Code. Section 64 provides that a trade union and its members are free to communicate information to the public with regard to a labour dispute, except in a manner which may constitute picketing. Accordingly, the Board held that it was permissible for employees to publish letters, issue press releases, take out newspaper advertisements or use billboards in order to publicize the labour dispute and attempt to gain public sympathy. In my view, it follows that both the legislation and the Board policy appreciate how very important it is for workers to disseminate accurate information in a lawful manner with regard to a labour dispute.
3. Leafleting as a Means of Expression
28 The distribution and circulation of leaflets has for centuries been recognized as an effective and economical method of both providing information and assisting rational persuasion. It has long been used as a means to enlist support. See Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, and Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084. Free expression on matters of public interest and the right to publicly disseminate news and information and to express opinions on matters of public interest were considered to be fundamental rights long before the enactment of the Charter . See Saumur v. City of Quebec, [1953] 2 S.C.R. 299, at pp. 370‑71. The distribution of leaflets and posters is typically less expensive and more readily available than other forms of expression. As a result, they are particularly important means of providing information and seeking support by the vulnerable and less powerful members of society. See Libman, supra, at para. 76; Ramsden, at pp. 1096 and 1101‑3; Committee for the Commonwealth of Canada, at pp. 198 and 251. Leafleting, like the postering at issue in Ramsden, is a form of expression that has historically been used by vulnerable and disadvantaged groups. Indeed, in the present case, the Board recognized the importance and the value of leafleting in the following terms (at p. 53):
The ability to leaflet and handbill, to give speeches and directly canvass consumers, is a longstanding and traditional form of freedom of expression. It is inexpensive and may be the only form of expression to which many individuals or groups have access in order to influence members of the public. In the facts of this case, many of the activities took place at stores located in shopping malls which have been characterized as the equivalent forum to the public markets or main streets of the past: Commonwealth, supra.
. . .
Further, “attending” at a specific location to prosecute a consumer boycott has been a traditional right enjoyed by many non‑labour groups including political, social, religious and economic interest groups. Suc