R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.

R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.
Collection
Supreme Court Judgments
Date
2002-01-24
Neutral citation
2002 SCC 8
Report
[2002] 1 SCR 156
Case number
27060
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Saskatchewan
Subjects
Labour law
Notes
SCC Case Information: 27060
Decision Content
R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8
Pepsi-Cola Canada Beverages (West) Ltd. Appellant
v.
Retail, Wholesale and Department Store Union, Local 558,
Garry Burkart and Linda Reiber, personally and as
Representatives of all the members of the Retail, Wholesale
and Department Store Union, Local 558 Respondents
and
Attorney General for Alberta, Canadian Labour Congress and
Canadian Civil Liberties Association (CCLA) Interveners
Indexed as: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd.
Neutral citation: 2002 SCC 8.
File No.: 27060.
2000: October 31; 2002: January 24.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for saskatchewan
Labour law -- Picketing -- Secondary picketing -- Union members picketing at locations other than employer’s premises -- Employer obtaining injunction prohibiting such secondary picketing -- Whether secondary picketing illegal per se at common law -- Whether picketing form of expression engaging s. 2 (b) of Canadian Charter of Rights and Freedoms -- Whether wrongful action model making secondary picketing which amounts to tortious or criminal conduct illegal should be adopted.
The union engaged in a variety of protest and picketing activities during a lawful strike and lockout at one of the appellant’s plants. These activities eventually spread to “secondary” locations, where union members and supporters picketed retail outlets to prevent the delivery of the appellant’s products and dissuade the store staff from accepting delivery; carried placards in front of a hotel where members of the substitute labour force were staying; and engaged in intimidating conduct outside the homes of appellant’s management personnel. An interlocutory injunction was granted which effectively prohibited the union from engaging in picketing activities at secondary locations. A majority of the Court of Appeal upheld the order against congregating at the residences of the appellant’s employees, as these activities constituted tortious conduct. However, the section restraining the union from picketing at any location other than the appellant’s premises was quashed, thus allowing the union to engage in peaceful picketing at secondary locations.
Held: The appeal should be dismissed.
Secondary picketing is generally lawful unless it involves tortious or criminal conduct. This wrongful action model best balances the interests at stake in a way that conforms to the fundamental values reflected in the Canadian Charter of Rights and Freedoms . It allows for a proper balance between traditional common law rights and Charter values and falls in line with the core principles of the collective bargaining system put in place in this country in the years following the Second World War. The wrongful action approach focuses on the character and effects of the activity as opposed to its location. This approach offers a rational test for limiting picketing, and avoids the difficult and often arbitrary distinction between primary and secondary picketing. In addition, labour and non-labour expression is treated in a consistent manner.
The Hersees and modified Hersees approaches, which start with the proposition that secondary picketing is per se unlawful regardless of its character or impact, are out of step with Charter values. They also deny adequate protection for free expression and place excessive emphasis on economic harm, in a rigid and inflexible way. Both primary and secondary picketing engage freedom of expression, a value enshrined in s. 2 (b) of the Charter . While protection from economic harm is an important value capable of justifying limitations on freedom of expression, it is an error to accord this value absolute or pre-eminent importance over all other values, including free expression.
A wrongful action rule offers sufficient protection for neutral third parties when weighed against the value of free expression. Picketing which breaches the criminal law or one of the specific torts will be impermissible, regardless of where it occurs. In particular, the breadth of the torts of nuisance and defamation should permit control of most coercive picketing. Known torts will also protect property interests. They will not allow for intimidation, and will protect free access to private premises. Finally, rights arising out of contracts or business relationships also receive basic protection through the tort of inducing breach of contract. Moreover, to the extent that it may prove necessary to supplement the wrongful action approach, the courts and legislatures may do so. While legislatures must respect the Charter value of free expression and be prepared to justify limiting it, they remain free to develop their own policies governing secondary picketing and to substitute a different balance than the one struck in this case.
Cases Cited
Disapproved: Hersees of Woodstock Ltd. v. Goldstein, [1963] 2 O.R. 81; referred to: R. v. Jobidon, [1991] 2 S.C.R. 714; R. v. Salituro, [1991] 3 S.C.R. 654; Watkins v. Olafson, [1989] 2 S.C.R. 750; Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, 2000 SCC 34; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; Great Atlantic & Pacific Co. of Canada, [1994] OLRB Rep. March 303; Daishowa Inc. v. Friends of the Lubicon (1998), 39 O.R. (3d) 620; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452; U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70; Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94; A. L. Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] S.C.R. 271; Lescar Construction Co. v. Wigman, [1969] 2 O.R. 846; Refrigeration Supplies Co. v. Ellis, [1971] 1 O.R. 190; Nedco Ltd. v. Clark (1973), 43 D.L.R. (3d) 714; Nedco Ltd. v. Nichols (1973), 38 D.L.R. (3d) 664; Domtar Chemicals Ltd. v. Leddy (1973), 37 D.L.R. (3d) 73; Inglis Ltd. v. Rao (1974), 2 O.R. (2d) 525; Magasins Continental Ltée v. Syndicat des employé(es) de commerce de Mont-Laurier (C.S.N.), [1988] R.J.Q. 1195; 2985420 Canada Inc. v. Fédération du commerce Inc., [1995] R.J.Q. 44; Peter Kiewit Sons Co. v. Public Service Alliance of Canada, Local 20221, [1998] B.C.J. No. 1494 (QL); McLean Trucking Co. v. Public Service Alliance of Canada, 83 C.L.L.C. ¶ 14,047; Alex Henry & Son Ltd. v. Gale (1976), 14 O.R. (2d) 311; Commonwealth Holiday Inns of Canada Ltd. v. Sundy (1974), 2 O.R. (2d) 601; Falconbridge Nickel Mines Ltd. v. Tye, [1971] O.J. No. 11 (QL); Air Canada v. C.A.L.P.A. (1997), 28 B.C.L.R. (3d) 159; Soo-Security Motorways Ltd. v. Kowalchuck (1980), 9 Sask. R. 354; 683481 Ontario Ltd. v. Beattie (1990), 73 D.L.R. (4th) 346; Neumann and Young Ltd. v. O’Rourke (1974), 53 D.L.R. (3d) 11; O.K. Economy Stores v. R.W.D.S.U., Local 454 (1994), 118 D.L.R. (4th) 345; Heather Hill Appliances Ltd. v. McCormack (1965), 52 D.L.R. (2d) 292, aff’d [1965] O.J. No. 504 (QL); Robertson Yates Corp. v. Fitzgerald, 65 C.L.L.C. ¶ 14,091; Toronto Harbour Commissioners v. Sninsky (1967), 64 D.L.R. (2d) 276; CTV Television Network Ltd. v. Kostenuk (1972), 26 D.L.R. (3d) 385, aff’d (1972), 28 D.L.R. (3d) 180; J. S. Ellis & Co. v. Willis (1972), 30 D.L.R. (3d) 397; Rocca Construction Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S.A. and Canada, Local 721 (1978), 21 Nfld. & P.E.I.R. 198; PCL Construction Management Inc. v. Mills (1994), 124 Sask. R. 127; Maple Leaf Sports & Entertainment Ltd. v. Pomeroy (No. 2) (1999), 49 C.L.R.B.R. (2d) 285; Williams v. Aristocratic Restaurants (1947) Ltd., [1951] S.C.R. 762; Brett Pontiac Buick GMC Ltd. v. National Association of Broadcast Employees and Technicians, Local 920 (1989), 90 N.S.R. (2d) 342, application for leave to appeal dismissed (1989), 94 N.S.R. (2d) 398; Provincial Express Inc. v. Canadian Union of Postal Workers (1991), 94 Nfld. & P.E.I.R. 75; Domtar Inc., [2000] O.L.R.D. No. 3761 (QL); National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58 (1964).
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 2 (b), (d), 32(1) .
Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 104(3).
Labour Relations Act, R.S.N. 1990, c. L-1, s. 128(3).
Labour Relations Code, R.S.A. 2000, c. L-1, s. 84.
Labour Relations Code, R.S.B.C. 1996, c. 244, s. 1.
Trade Union Act, R.S.S. 1978, c. T-17, ss. 27, 28.
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose-leaf updated November 2001, release No. 16).
Arthurs, H. W. “Comments” (1963), 41 Can. Bar Rev. 573.
Beatty, David M. “Secondary Boycotts: A Functional Analysis” (1974), 52 Can. Bar Rev. 388.
Carrothers, A. W. R., E. E. Palmer and W. B. Rayner. Collective Bargaining Law in Canada, 2nd ed. Toronto: Butterworths, 1986.
Cox, Archibald. “Strikes, Picketing and the Constitution” (1951), 4 Vand. L. Rev. 574.
Fleming, John G. The Law of Torts, 9th ed. Sydney, Australia: LBC Information Services, 1998.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1998), 167 D.L.R. (4th) 220, 172 Sask. R. 40, [1999] 8 W.W.R. 429, [1998] S.J. No. 727 (QL), allowing in part the Union’s appeal of a decision of the Court of Queen’s Bench granting an interlocutory injunction enjoining secondary picketing during a labour dispute. Appeal dismissed.
Robert G. Richards, Q.C., and M. Jean Torrens, for the appellant.
Larry W. Kowalchuk, for the respondents.
Roderick Wiltshire, for the intervener Attorney General for Alberta.
John Baigent, for the intervener Canadian Labour Congress.
David Sherriff-Scott, for the intervener Canadian Civil Liberties Association (CCLA).
The judgment of the Court was delivered by
1 The Chief Justice and LeBel J. – This case raises the issue of when if ever secondary picketing – typically defined as picketing in support of a union which occurs at a location other than the premises of that union’s employer – may be legally conducted. The respondents (the “Union”) were on strike against Pepsi-Cola Canada Beverages (West) Ltd. (“Pepsi-Cola”) in Saskatchewan. The strike escalated and the Union picketed some of Pepsi-Cola’s retail outlets, placed placards outside a hotel where substitute workers were staying, and demonstrated outside the homes of Pepsi-Cola’s management personnel. The issue is whether such conduct is unlawful and can be enjoined.
2 The law on this issue has been clarified by legislation in a number of Canadian provinces. Saskatchewan has legislated to abolish the tort of restraint of trade in the union context: The Trade Union Act, R.S.S. 1978, c. T-17, s. 27. However, apart from this it has left the common law in place. The Union, supported by the Canadian Labour Congress and the Canadian Civil Liberties Association, argues that the common law as presently articulated is difficult to apply and unnecessarily curtails the right to free expression. Pepsi-Cola, on the other hand, defends the present rule as workable and appropriate to protect business interests and prevent labour disputes from spreading to non-parties to the dispute.
3 For the reasons that follow, we conclude that secondary picketing is generally lawful unless it involves tortious or criminal conduct, and that the Saskatchewan Court of Appeal correctly disposed of the issues on this basis.
I. Facts
4 The Union gained certification as bargaining agent for the employees of a bottling plant and delivery facility in Saskatchewan. Their collective agreement had expired, and negotiations broke down. The employer, Pepsi-Cola, locked out its employees and the employees walked out on strike. The lockout and strike were legal under The Trade Union Act. The conflict quickly grew bitter. At the news of the lockout, several employees took control of the warehouse, office and yard. They disabled trucks, blocked entrances and threatened management. Security guards left the scene in fear for their safety. An interim injunction was issued against the Union’s acts of trespass, intimidation and nuisance. Pepsi-Cola then regained control of its facilities and resumed business, using management personnel and substitute labour brought in from Calgary and Winnipeg.
5 The following week, as Pepsi-Cola tried to resume deliveries to its clients, some of the Union members attempted to prevent the movement of trucks, interfere with deliveries, discourage the management and the substitute work force, and dissuade customers from carrying on business with Pepsi-Cola. Protests and picketing spread to “secondary” locations, where Union members and supporters engaged in a variety of activities. They picketed certain retail outlets, thus preventing the delivery of Pepsi-Cola’s products and dissuading the store staff from accepting delivery; they carried placards in front of a hotel where members of the substitute labour force were staying; and they convened outside the homes of some of Pepsi-Cola’s management personnel and chanted slogans, screamed insults, and uttered threats of harm.
II. Judgments
1. Saskatchewan Court of Queen’s Bench
6 On May 16, 1997, Allbright J. of the Saskatchewan Court of Queen’s Bench granted an interlocutory injunction ordering the Union to vacate and refrain from trespassing at Pepsi-Cola’s premises in Saskatoon. The Union was also restrained from picketing “except in an orderly manner and provided such picketers remain off of the said premises”. The order also prohibited the Union from obstructing or blocking access to Pepsi-Cola’s premises and from attempting to intimidate Pepsi-Cola’s employees, customers, or anyone else entering or leaving Pepsi-Cola’s premises.
7 On May 23, 1997, Barclay J. dissolved the previous injunction and issued a new interlocutory order with the following terms:
1. The defendants and each of them and any person acting under their instruction, direction or behest and any member of the defendant Union, and any other person having knowledge of this Order are, until the trial of this action, or until further order, hereby:
i) restrained from picketing or congregating at any location other than the plaintiff’s premises located at the intersection of Millar Avenue and 43rd Street and bearing civic address 830 - 43rd Street East, Saskatoon, Saskatchewan and the Custom Truck premises at 2410 Northridge Drive, Saskatoon, Saskatchewan, provided that all such picketers remain off the premises;
ii) restrained from obstructing or blocking places of entrance to or egress from the said premises;
iii) restrained from threatening, harassing, or intimidating or attempting to harass or intimidate in any way the plaintiff’s employees, any person seeking to do business with the plaintiff, and/or any person seeking to enter or leave the said premises;
iv) restrained from picketing, watching or besetting, trespassing, creating a nuisance or congregating at the residences of the plaintiff’s employees or their families, or intimidating, threatening or obstructing the plaintiff’s employees or their family members;
v) restrained from blocking and/or impeding the plaintiff’s vehicles or otherwise interfering in any manner whatsoever with the plaintiff’s employees in the carrying out of their duties;
vi) restrained from trespassing upon or re-entering the plaintiff’s premises.
8 Parts i) and iv) of Barclay J.’s order effectively prohibited the Union from engaging in picketing activities at secondary locations. The Union appealed these parts of the order on the basis that it breached the strikers’ rights to freedom of expression and association under ss. 2 (b) and 2 (d) of the Canadian Charter of Rights and Freedoms .
2. Saskatchewan Court of Appeal (1998), 167 D.L.R. (4th) 220
9 Writing for the majority of the Saskatchewan Court of Appeal, Cameron J.A. allowed the Union’s appeal in part. The majority upheld the part of the injunction which prevented the Union from congregating at the residences of Pepsi-Cola’s employees, as these activities were found to have amounted to tortious conduct. However, the section restraining the Union from picketing at any location other than Pepsi-Cola’s premises was quashed, thus allowing the Union to engage in peaceful picketing at secondary locations.
10 Cameron J.A. reasoned that the nature and purpose of picketing involves the presence of pickets and the conveying of information in order to interfere with and put economic pressure on the operation of the enterprise. Cameron J.A. went on to note at p. 230 that “picketing constitutes an exercise of the fundamental freedom of expression which can only be circumscribed by laws, whether statutory, regulatory, or common, that accord with the constitutional norms” of the Charter . Given that the province of Saskatchewan had not imposed any statutory restriction on picketing, this form of collective expression remained lawful in principle, and courts could restrain it only when it was accompanied by a specific tort, such as trespass, nuisance, intimidation, breach of contract or defamation. The majority thus disagreed with the obiter comments of the Ontario Court of Appeal in Hersees of Woodstock Ltd. v. Goldstein, [1963] 2 O.R. 81, that held that secondary picketing was illegal per se at common law.
11 The Court of Appeal viewed the picketing at the secondary locations as essentially peaceful and informational, aimed at dissuading others from doing business with Pepsi-Cola. Once the truly violent or tortious acts had been enjoined, the picketing did not affect anyone’s use or enjoyment of their property. In dissent, Wakeling J.A. viewed the secondary picketing as illegal per se at common law, and would have dismissed the appeal.
12 Pepsi-Cola was granted leave to appeal to this Court, and interveners were granted status to raise policy issues before the Court.
III. Legislation
13 Canadian Charter of Rights and Freedoms
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;
. . .
(d) freedom of association.
32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
Trade Union Act, R.S.S. 1978, c. T-17
27. A trade union and the acts thereof shall not be deemed to be unlawful by reason only that one or more of its objects are in restraint of trade.
IV. Issues
14 The main issue in this appeal is the legality of secondary picketing at common law. A secondary issue is whether the employer, Pepsi-Cola, can apply for relief against secondary picketing, or whether only the third parties affected by secondary picketing may apply.
V. Analysis
1. Preliminary Questions
15 Two preliminary issues arise: (1) whether the courts have the power to make the sort of change advocated by the Union; (2) if so, how the Charter may affect the development of the common law.
16 On the first issue, we conclude that the change in the common law here at issue lies within the proper power of the courts. The status of secondary picketing at common law remains unsettled and inconsistent across jurisdictions. The Court in this case is not required to overturn a well-established rule at common law, but rather to clarify the common law given two strands of conflicting authority, each with some claim to precedent. Resolution of the conflicting lines of authority lies well within the powers of a court of common law (see R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 733). Moreover, any change to the common law should be incremental. Proposed modifications that will have complex and far-reaching effects are in the proper domain of the legislature (see R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670; Watkins v. Olafson, [1989] 2 S.C.R. 750, at pp. 760-61; Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, 2000 SCC 34, at para. 43).
17 Against this conclusion, Pepsi-Cola argues that the failure of Saskatchewan to legislate on the matter, as some other provinces have, suggests that the Legislature intended to keep the common law as it is. We cannot agree. There is nothing to suggest that the statutory silence should be interpreted as a legislative intent to crystallize the common law and preclude its development in this area. The law as it presently stands was developed by judges in response to social, moral and economic needs. Equally, judges can and should alter the common law to reflect these needs as they change over time: Salituro, supra; see also Watkins, supra, and Friedmann Equity, supra. The Saskatchewan Legislature must be taken to have understood this when they chose to leave the matter of secondary picketing to the common law.
18 The second preliminary issue is how the Charter may affect the development of the common law. Here again the answer seems clear. The Charter constitutionally enshrines essential values and principles widely recognized in Canada, and more generally, within Western democracies. Charter rights, based on a long process of historical and political development, constitute a fundamental element of the Canadian legal order upon the patriation of the Constitution. The Charter must thus be viewed as one of the guiding instruments in the development of Canadian law.
19 This Court first considered the relationship between the common law and the Charter in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, where McIntyre J. concluded, at p. 603:
Where, however, private party “A” sues private party “B” relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law.
The reasons of McIntyre J. emphasize that the common law does not exist in a vacuum. The common law reflects the experience of the past, the reality of modern social concerns and a sensitivity to the future. As such, it does not grow in isolation from the Charter , but rather with it.
20 Although s. 2(b) of the Charter is not directly implicated in the present appeal, the right to free expression that it enshrines is a fundamental Canadian value. The development of the common law must therefore reflect this value. Indeed, quite apart from the Charter , the value of free expression informs the common law. As McIntyre J. observed in Dolphin Delivery, supra, at p. 583.
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.
21 At the same time, it must be recognized that the common law addresses a myriad of very diverse relationships and seeks to protect a host of legitimate interests not engaged by the Charter . Salient among these are the life of the economy and individual economic interests. Common law rules ensure the protection of property interests and contractual relationships. Nevertheless, where these laws implicate Charter values, these values may be considered.
22 In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 97, the Court adopted a flexible balancing approach to addressing alleged inconsistencies between the common law and Charter values:
Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.
The Court also cautioned that: “[f]ar-reaching changes to the common law must be left to the legislature” (para. 96). Finally, the Court determined that the party alleging an inconsistency between the common law and the Charter bears the onus of proving “that the common law fails to comply with Charter values and that, when these values are balanced, the common law should be modified” (para. 98). It is upon this basis that we proceed to balance the values at stake in the present appeal.
2. The Competing Values and Interests
(a) Historical Perspective of the Function of Picketing in a Labour Dispute
23 The relationship between picketing and free expression is cast against the backdrop of a labour relations system that has profoundly changed over the past half-century. It was not until after the Second World War that governments began to formally accept that unions have a role to play in the economy and society. In the decades that followed, the fundamental propositions of modern labour law took root.
24 Workers have the right to be represented by a union, and when a union supported by a majority of the workers is in place, employers are obliged to negotiate in good faith with the union. Good faith negotiation is the primary engine of industrial peace and economic efficiency. Occasionally, however, negotiations stall and disputes threaten labour peace. When this happens, it has come to be accepted that, within limits, unions and employers may legitimately exert economic pressure on each other to the end of resolving their dispute. Thus, employees are entitled to withdraw their services, inflicting economic harm directly on their employer and indirectly on third parties which do business with their employer. Employers are similarly entitled to exert economic pressure on their employees through the use of lockouts and, in most jurisdictions in Canada, through the hiring of replacement workers.
25 Labour disputes may touch important sectors of the economy, affecting towns, regions, and sometimes the entire country. The cost to the parties and the public may be significant. Nevertheless, our society has come to see it as justified by the higher goal of achieving resolution of employer-employee disputes and the maintenance of economic and social peace. The legally limited use of economic pressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage the parties to resolve their differences in a way that both can live with (see generally G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at pp. 1-11 to 1-15).
(b) Picketing and Free Expression
26 The term “picketing” attaches to a wide range of diverse activities and objectives, and allows for innumerable variations. One text on Canadian labour law hazards this general description of the common themes that define picketing, as well as the diversity this broad term allows:
Ingredients common to the act of picketing in all jurisdictions appear to be the physical presence of persons called pickets, the conveying of information, and the object of persuasion. The “presence” element may take many forms, from one or two persons, in the vicinity of the entrance of the premises, comparatively indifferent to the outcome of the dispute, to large numbers calculated physically to prevent ingress and egress. . . . The conveying of information may also take many forms, from the use of handbills, arm bands, placards and sandwich boards to sound trucks, and from the recitation of events to the conveying of exhortative messages. The object of persuasion appears to remain constant, to induce a boycott of the picketed operations by employees, customers, suppliers and others on whom the employer is dependent for the successful operation of his enterprise.
(A. W. R. Carrothers, E. E. Palmer and W. B. Rayner, Collective Bargaining Law in Canada (2nd ed. 1986), at pp. 609-10)
27 In labour law, picketing is commonly understood as an organized effort of people carrying placards in a public place at or near business premises. The act of picketing involves an element of physical presence, which in turn incorporates an expressive component. Its purposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients (see, for example, Great Atlantic & Pacific Co. of Canada, [1994] OLRB Rep. March 303, at paras. 32-33, per McCormack, Chair).
28 Generally, provincial labour law statutes regulating picketing refrain from any attempt at expressly defining it (see, for example, the Newfoundland Labour Relations Act, R.S.N. 1990, c. L-1, s. 128(3); the New Brunswick Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 104(3); the Alberta Labour Relations Code, R.S.A. 2000, c. L-1, s. 84). The British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244, is an exception, in which picketing is defined as:
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;
This definition illustrates the breadth of the concept of picketing. On this definition, picketing arguably would extend to include the action of a group of people standing near a location – without carrying placards, handing out leaflets or addressing anyone – if their presence is intended to persuade someone else from doing business at that location.
29 A distinction is sometimes made between primary and secondary picketing. Primary picketing typically refers to picketing at the premises of the employer; secondary picketing is picketing at other premises. No provincial legislature has expressly defined “secondary picketing”. However, in carving out the core of permissible picketing, legislatures sometimes resort to location as a marker. (See the Newfoundland Labour Relations Act and the New Brunswick Industrial Relations Act.)
30 The above discussion illustrates the difficulty in defining picketing in a detailed manner. Picketing represents a continuum of expressive activity. In the labour context it runs the gamut from workers walking peacefully back and forth on a sidewalk carrying placards and handing out leaflets to passers by, to rowdy crowds shaking fists, shouting slogans, and blocking the entrances of buildings. Beyond the traditional labour context, picketing extends to consumer boycotts and political demonstrations (see Daishowa Inc. v. Friends of the Lubicon (1998), 39 O.R. (3d) 620 (Ont. Ct. (Gen. Div.))). A picket line may signal labour strife. But it may equally serve as a physical demonstration of individual or group dissatisfaction on an issue.
31 For the purposes of this appeal, we find it unnecessary to define picketing in a detailed and exhaustive manner. We proceed rather on the basis that picketing may involve a broad range of activities, from the “traditional” picket line where people walk back and forth carrying placards, to the dissemination of information through other means.
32 Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression, enshrined in s. 2 (b) of the Charter . This Court’s jurisprudence establishes that both primary and secondary picketing are forms of expression, even when associated with tortious acts: Dolphin Delivery, supra. The Court, moreover, has repeatedly reaffirmed the importance of freedom of expression. It is the foundation of a democratic society (see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452). The core values which free expression promotes include self-fulfilment, participation in social and political decision making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one’s circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wider social, political, and economic environment.
33 Free expression is particularly critical in the labour context. As Cory J. observed for the Court in U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, “[f]or employees, freedom of expression becomes not only an important but an essential component of labour relations” (para. 25). The values associated with free expression relate directly to one’s work. A person’s employment, and the conditions of their workplace, inform one’s identity, emotional health, and sense of self-worth: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; KMart, supra.
34 Personal issues at stake in labour disputes often go beyond the obvious issues of work availability and wages. Working conditions, like the duration and location of work, parental leave, health benefits, severance and retirement schemes, may impact on the personal lives of workers even outside their working hours. Expression on these issues contributes to self-understanding, as well as to the ability to influence one’s working and non-working life. Moreover, the imbalance between the employer’s economic power and the relative vulnerability of the individual worker informs virtually all aspects of the employment relationship: see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 92, per Iacobucci J. Free expression in the labour context thus plays a significant role in redressing or alleviating this imbalance. It is through free expression that employees are able to define and articulate their common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause: KMart, supra. As Cory J. noted in KMart, supra, at para. 46: “it is often the weight of public opinion which will determine the outcome of the dispute”.
35 Free expression in the labour context benefits not only individual workers and unions, but also society as a whole. In Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, the reasons of both La Forest and Wilson JJ. acknowledged the importance of the role played by unions in societal debate (see also R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70, and Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94). As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour conditions into the public realm.
36 This said, freedom of expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately be curtailed. Thus, s. 2(b) of the Charter is subject to justificative limits under s. 1.
37 The same applies in interpreting the common law to reflect the Charter . The starting point must be freedom of expression. Limitations are permitted, but only to the extent that this is shown to be reasonable and demonstrably necessary in a free and democratic society.
(c) Protection of Innocent Third Parties to Labour Disputes
38 On the other side of the balance lies the interests of the employer and third parties in protection from excessive economic and other harm as a result of picketing and other labour action. As previously discussed, one important objective of labour picketing is the infliction of economic harm on the employer with an eye to compelling a favourable resolution of the dispute. Thus, expressive action in the labour context, as in other situations, may cause economic harm. However, the appellant argues that economic harm arising from labour disputes should be confined to the actual parties to the dispute – it should not be permitted to harm innocent third parties, who have neither influence over the outcome of the dispute, nor the ability to bring it to a close.
39 The appellant emphasizes that secondary picketing expands the labour dispute beyond its core, increasing both the incidence of picketing and the number of businesses and persons affected by it. The targets of secondary activity, such as retailers of a struck product, may suffer considerable economic damage, which may in turn affect customers and employees, as well as a host of other business relations. The appellant contends that the interests of these third parties, as well as public order generally, compel restraints on the scope of picketing activity.
40 On this point, the appellant relies on Dolphin Delivery, supra. In that case, the union represented the locked out employees of Purolator, an Ontario-based courier service. Dolphin undertook to supply delivery service to Purolator customers in the Vancouver area during this lockout. The union planned to picket Dolphin’s premises, and Dolphin succeeded in getting an injunction to prohibit the intended picketing. The union challenged the injunction all the way to this Court, where it was ultimately upheld.
41 The challenge to this restriction on secondary picketing was framed as a violation of the union’s right to freedom of expression under s. 2 (b) of the Charter . As no picket line ever went up, the Court chose to assume that the picketing would have been peaceful and that Dolphin’s unionized workers would have respected the picket line. In the end, McIntyre J. found that the Charter did not apply, and the injunction was upheld on the basis of the common law tort of inducing breach of contract.
42 McIntyre J. was of the view that if the Charter did apply, the injunction could have been justified under s. 1. While acknowledging that all picketing (even where accompanied by tortious conduct) involves some element of expression, McIntyre J. recognized the legitimacy of some curtailment of secondary picketing in order to prevent the economic harm of labour disputes from spreading too broadly into the community. McIntyre J. stated, at p. 591:
When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man‑hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is