Persuasion, not coercion: limits on union leafleting struck down by Supreme Court

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Some readers may know that several years ago, the Supreme Court of Canada expressed the view that restraining picketing at secondary sites could be justified under the Canadian Charter of Rights and Freedoms. In Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery Ltd., decided in 1986, the Court majority stated that, while picketing was a form of expression protected under the Charter, it was reasonable that it be restrained where it could cause harm to third parties.

Now, in two judgments released on September 9, 1999, the Court has held that, where the activity at secondary sites is limited to the peaceful distribution of leaflets, laws banning this activity infringe the freedom of expression provision of the Charter. In making these rulings, a unanimous Court drew a clear distinction between persuasive leafleting and conventional picketing.

The Court’s views are most thoroughly elaborated in United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd. In this case, the offending leaflets were distributed at seven non-unionized KMart sites in British Columbia by union members locked out from two other KMart locations in the province. Starting with the familiar “ATTENTION KMART SHOPPERS!!!!”, the leaflets urged shoppers to boycott the employer until workers in the two unionized sites could obtain a first collective agreement. Leaflets were distributed for three days in the pre-Christmas season, by groups of two to twelve individuals. The leafleting was peaceful, and no attempt was made to bar employees, suppliers or consumers from entering the store.

A JUSTIFIABLE LIMIT ON FREE EXPRESSION?

KMart asked the B.C. Labour Relations Board to restrain the activity at the secondary sites, citing the secondary picketing provisions of the province’s labour statute. The Board ordered the union to refrain from leafleting, an order which it upheld after the union filed an application for reconsideration. The union applied for judicial review of the Board’s reconsideration decision, but was rebuffed by the B.C. Supreme Court, and then by the B.C. Court of Appeal. Both levels of the judiciary held that, although the controls on secondary picketing infringed the guarantee of free expression in subsection 2(b) of the Charter, the infringement was a reasonable limitation under section 1 of the Charter.

Before the Supreme Court, both KMart and the B.C. government conceded that the provisions did infringe the Charter, but echoed the lower court rulings in arguing that they were a justifiable limit on freedom of expression. The issue before the Supreme Court was, therefore, whether the infringement could be justified under the Charter.

EMPLOYEES AND FREE SPEECH

Before determining whether the picketing restrictions were a justifiable limit, the Court discussed the importance of free expression in the labour relations context. The Supreme Court of Canada has consistently recognized both the importance of work and working conditions to an employee’s sense of identity, self worth and emotional well-being. The Court has also recognized the vulnerability of individual employees, particularly retail employees, in their relations with management. It follows that workers must be able to speak freely on matters relating to their working conditions. Moreover, leafleting, as an affordable and readily available form of expression, is of particular importance in allowing less powerful members of society to express their views.

TRADITIONAL PICKETING AND CONSUMER LEAFLETING

Turning to the assessment of whether the law was a reasonable limit on free expression, the Court noted that the ostensible reason for limiting the right was to insulate third parties from being harmed by labour disputes. There is little doubt, the Court stated, that conventional picketing, in view of its potentially disruptive effect on others, needs to be regulated in some form. Such picketing also is tortious, in that it interferes with the contractual rights of the picketed businesses. The issue, therefore, is to determine whether a distinction can be drawn between conventional picketing, and the type of consumer leafleting carried out by the union in this case.

Picketing, the Court noted, is hybrid in nature. It is clearly a form of expression, but it is also more than that:

“[I]ts trademark is the picket line, which has been described as a “signal” not to cross. Whatever may be its message, the picket line acts as a barrier. It impedes public access to goods or services, employees’ access to their workplace, and suppliers’ access to the site of deliveries. …

The decision for people, whether employees, suppliers or consumers, not to cross the picket line may be based on its coercive effect rather than the persuasive force of the picketers. … While that pressure may be properly applied against the primary employer, when it is brought against a neutral party by means of secondary picketing then it may not be permissible.”

Leafleting aimed at consumers, however, has no such coercive effect:

“[Consumer leafleting] seeks to persuade members of the public to take a certain course of action. It does so through informed and rational discourse which is the very essence of freedom of expression. … It does not in any significant manner impede access to or egress from premises.”

It is true, the Court observed, that the targeted enterprise may suffer a loss of revenue. However, there is no legal right to protection from economic harm, when the harm results from consumers being peacefully urged to spend their money elsewhere.

The B.C. Board had declined to draw a distinction between picketing and leafleting largely because both forms of action had the same objective: exerting economic pressure on the employer. However, the Court stated, the distinguishing feature was the means used to pursue the objective. The public is entitled to information about the issues in a labour dispute, and the parties may choose to provide this information by taking out ads in the mass media. Consumer leafleting, with its emphasis on rational persuasion, is more akin to a consumer boycott achieved through publicity than to conventional picketing, which relies on coercion and obedience.

WHEN LEAFLETING ISN’T

The Court acknowledged that, despite the theoretical differences between the two, it is still possible for leafleting to be conducted in a manner that could be considered a form of picketing:

“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. …

For example, if those distributing the leaflets carried placards, or if they were so numerous that they impeded access to and egress from the targeted premises, or if the leaflets were directed towards the workers in those premises rather than customers, then those types of leafleting could constitute or be the equivalent of picketing.”

However, the Court stated, the leafleting at issue here had none of these characteristics. Nevertheless, this valid exercise of freedom of expression carried out by lawful means was still prohibited under the language of the B.C. legislation.

OVERSTATED OBJECTIVE, OVERBROAD RESTRICTION

In defending the challenged legislation, the Court observed, KMart and the B.C. government had overstated its objective as being the complete insulation of third parties from harm due to labour disputes. But such an objective would have the effect of restricting a wide range of lawful activities. Rather, pointing to the language used in the legislation itself, the Court held that the objective was more modest:

“[T]he purpose of the legislation is to minimize the harmful effects to third parties which would result from others impeding access to premises or [encouraging] employees to break their contracts of employment. …

However, [third parties] are not protected from the effects of all activity flowing from a labour dispute. For example, third parties are subject to economic pressures flowing from successful boycott campaigns conducted through the media or any other permissible means.”

The more realistic objective of minimizing harm to third parties resulting from conventional picketing does not require a “blanket prohibition of any persuasive activity by striking or locked-out employees at neutral sites”. Given the fundamental importance of leafleting for workers and the social value of lawfully provided and accurate information on labour disputes, the Court held, the total prohibition of this activity is an overly broad restriction of free expression.

In Our View

This decision was a unanimous one and reflects the high value placed by the Court on freedom of expression. It also continues the judicial trend, noted previously in FOCUS, of countering the perceived power imbalance in favour of employers.

Whether the activity at secondary sites is permissible persuasive activity or coercive picketing may not always be easy to determine. In KMart, the Court pointed to the following features as being significant:

  • the leaflet was accurate, not defamatory, and did not urge unlawful or tortious acts;
  • it identified the dispute as being with the primary employer only;
  • the manner of leafleting was not coercive or intimidating;
  • the leafleting did not involve a large number of people;
  • it did not impede access to or egress from the premises;
  • it did not prevent employees at the sites from working, and did not interfere with the contractual relations of suppliers with the targeted sites.

(For more information on the judicial attitude towards picketing, see “Supreme Court rules secondary picketing is legal unless wrongful conduct is involved” on our Publications page.)

For further information, please contact George Rontiris at (613) 563-7660, Extension 275, or J.D. Sharp at (613) 563-7660, Extension 233.