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Supreme Court rules secondary picketing is legal unless wrongful conduct is involved

The legal regulation of secondary picketing - that is, picketing at locations other than that of the employer involved in the labour dispute - has long been a troubled and conflicted area of the law. Many courts, taking the view that secondary picketing is an unwarranted application of economic pressure against uninvolved third parties, have held that the practice is, by definition, illegal. Others, sensing that this approach was unduly harsh towards unions, have attempted to modify the rule of illegality per se by various means, such as refusing to restrain picketing at sites sharing a common corporate ownership with the primary employer and developing an "ally doctrine" under which the picketing of establishments involved in aiding the struck employer was declared permissible.

Now, in a decision released on January 24, 2002, the Supreme Court of Canada has acted to eliminate this uncertainty in the common law by declaring that secondary picketing is legal if no criminal or tortious conduct is involved. In moving to rationalize the law of secondary picketing, the Court also expressed its views on the relative weight to be accorded to the competing values of freedom of expression and the protection of third parties from economic harm.

The case, R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., arose out of a bitter 1997 Saskatoon labour dispute in which picketing quickly spilled over to secondary locations, such as retail outlets, a hotel housing replacement workers and the homes of some management personnel. The employer had sought and obtained an injunction against the union, one term of which restrained picketing or congregating at any site other than the employer's premises.

The union's appeal of the injunction was allowed in part by a majority of the Saskatchewan Court of Appeal. The Court upheld the part of the injunction restraining the union from picketing at employees' residences, as that picketing was held to be tortious in nature. However, the term of the injunction restraining all secondary picketing was overturned, with the majority noting that the picketing in question was peaceful and aimed at dissuading others from doing business with the employer.

COMPETING VALUES

A unanimous Supreme Court of Canada supported the view taken by the Court of Appeal. While the Charter of Rights and Freedoms was not directly involved in this case, the Court noted, Charter values had to be considered in the development of the common law. The term "picketing" covers a broad range of activities, the Court stated, but it always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression.

However, freedom of expression is not absolute, and when the harm of expression outweighs its benefit, it may be curtailed. On the other side of the balance is the value of protecting third parties from economic harm generated in a labour dispute. However, the Court observed, this value is also not absolute:

"Protection from economic harm is an important value capable of justifying limitations on freedom of expression. Yet to accord this value absolute or pre-eminent importance over all other values, including free expression, is to err. The law has never recognized a sweeping right to protection from economic harm."

REJECTING HERSEES

In holding that secondary picketing in the absence of wrongful conduct was legal, the Court had to contend with the 1969 decision of the Ontario Court of Appeal in Hersees of Woodstock Ltd. v. Goldstein. In Hersees, the Court of Appeal had stated that, even if there were a right to secondary picketing, that right was for the benefit of a "particular class only", and had to give way to a third party's right to trade, "a right far more fundamental and of far greater importance".

The Supreme Court noted that, although Hersees was based on dubious judicial precedents, it had had a strong influence on subsequent case law. The Court also observed that Hersees and the cases that followed it had had the effect of discounting the importance of freedom of expression in the labour law context.

PICKETING LEGAL UNLESS TORTIOUS OR CRIMINAL

The Court held that, in light of Charter values, the correct approach was to view secondary picketing as prima facie legal, subject to justifiable limits in the interest of protecting third parties. In addition to conforming with the spirit of the Charter, the Court pointed to a number of other considerations for adopting this position:

• The Hersees approach placed too much importance on protecting others from economic harm and too little on the value of free expression.
• Hersees viewed location as the primary criterion for determining whether picketing was legal. However, the legality of picketing should depend not on its location, but on its character and impact.
• Unlike Hersees, the Court's approach treated labour and non-labour picketing in a consistent manner. By contrast, Hersees effectively created an independent tort of secondary picketing that arose only in the labour context.

Noting that total protection of third parties from economic harm was not its goal, the Court concluded by expressing the view that the "wrongful action" rule it was asserting would be sufficient to catch most problematic picketing:

"Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation, will be impermissible, regardless of where it occurs. Specific torts known to the law will catch most of the situations which are liable to take place in a labour dispute. 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, they will protect free access to private premises and thereby protect the right to use one's property. Finally, rights arising out of contracts or business relationships also receive basic protection through the tort of inducing breach of contract."

In Our View

It should be noted that the Court also upheld the Saskatchewan Court of Appeal's position on the picketing at employees' residences. That picketing, the Court concluded, amounted to disorderly conduct, and constituted the torts of intimidation of the employees and private nuisance. Accordingly, that part of the injunction was upheld.

As well, the Court left it open to legislatures to regulate picketing through legislation, thus displacing the common law, which was at issue in this case. However, the Court also stated that, while the nature of different picketing regimes could vary in different parts of Canada, all must respect the Charter value of free expression and be prepared to justify any limitations of it. That said, the Court also indicated that legislatures could choose to strike a different balance between free expression and economic harm to third parties than that endorsed by the Court. (For more information on the judicial attitude towards picketing, see "Persuasion, not coercion: limits on union leafleting struck down by Supreme Court" and "Appeal Court grants injunction against non-violent picketing" on our Publications page.)

For further information, please contact Jacques Emond at (613) 563-7660, Extension 224 or Andrew Tremayne at (613) 563-7660, Extension 236.