McLachlin C.J. and LeBel J.
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.
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.
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
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.
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
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.
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.
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
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.
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.
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.
Pepsi-Cola was granted leave to appeal to this Court, and interveners were granted status to raise policy issues before the Court.
III. Legislation
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
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
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.
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).
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.
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.
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.
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.
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.
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
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.
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.
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
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)
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).
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:
Cases cited
- 167 D.L.R. (4th) 220 167 D.L.R. (4th) 220 ¶ 8
- Hersees of Woodstock Ltd. v. Goldstein 2 O.R. 81 ¶ 10
- R. v. Jobidon 21238-1991-09-26 p 733 ¶ 16
- R. v. Salituro 22049-1991-11-28 p 670 ¶ 16, ¶ 17
- Watkins v. Olafson 20598-1989-09-28 pp 760-61 ¶ 16, ¶ 17
- Friedmann Equity Developments Inc. v. Final Note Ltd. 2000 SCC 34 para 43 ¶ 16, ¶ 17
- RWDSU v. Dolphin Delivery Ltd. 18720-1986-12-18 p. 583 ¶ 19, ¶ 20
- Hill v. Church of Scientology of Toronto 24216-1995-07-20 para 97 ¶ 22