FREEDOM OF

EXPRESSION AND LABOUR

March 30 2023
LABR/POLI/CANA 4P41
 MAIN AREAS WHERE FOR IS
RELEVANT FOR LABOUR

• Pro-union messages (particularly during build-up to bargaining)

• Legality of ‘secondary picketing’ itself

• The parameters of legal picketing

 FREEDOM OF EXPRESSION
• Prior to RWDSU v Pepsi-Cola [Pepsi-Cola], ‘secondary picketing’ was considered unlawful
under the common law, owing to 1965 decision known as Hersees. Courts will issue injunctions
against illegal picketing.

• Can legislation override common law?

• YES

• Is common law subject to the Charter?

• SORTA (see Dolphin Delivery)

• Importantly, picketing is almost exclusively the purview of common law and not legislation
 PEPSI-COLA

• In 2002, the SCC heard a case challenging, again, an injunction prohibiting secondary
picketing. Here they adopted the ‘Charter values’ approach and moved from the per se
illegal doctrine to the wrongful act doctrine

• First, what the heck is picketing?

• Picketing is most commonly associated with being on strike.
• In Pepsi-Cola the SCC said that picketing “always involves expressive activity”;

• What is ‘secondary picketing’?

• Picketing a location other than the employer with whom there is an issue
 PEPSI-COLA AND WRONGFUL ACT
MODEL
• Criminal acts like violence and damage to property are reasons to limit picketing.

• But wrongful actions also include things like trespass, and nuisance (interfering with others’
lawful right to enter and exit).

• The main function of a picket line is to delay others to give the union an opportunity to
convey its message. So, what is the right balance here?
 CANDOLI THERMAL CORP. V.
ABBOTT, 2004 (ON SC)

“What these decisions illustrate is that picketing, as a constitutionally protected

manifestation of freedom of expression, must be respected and promoted, not simply
tolerated or restricted in deference to property rights, until the line of tortious or criminal
activity is clearly crossed.  It is inherent in the nature and purpose of picketing as an activity
that some delay, inconvenience and perhaps frustration will be experienced by the
employer. ”
 PICKET PROTOCOL
• Courts of Justice Act (Ontario) requires attempts to obtain police support to deal with unlawful obstructions:
• 102 (3) In a motion or proceeding for an injunction to restrain a person from an act in connection with a labour
dispute, the court must be satisfied that reasonable efforts to obtain police assistance, protection and action to
prevent or remove any alleged danger of damage to property, injury to persons, obstruction of or interference
with lawful entry or exit from the premises in question or breach of the peace have been unsuccessful.

• Kingston Police (like numerous others) had policy of non-intervention

• Only deal with issues of public safety and criminal law violations
• Advised use of picketing protocol agreement

• Picketing Protocol Agreement

• Two-party agreement about picket line conduct
 DOES THIS MEAN THAT PICKETING
CANNOT BE REGULATED?
• No. Arguably, picketing protocols themselves are a form of ‘regulation’

• Just because a police force has a policy of non-intervention does not in and of itself vacate court’s ability to issue an
injunction

• BUT………

• If a PP cannot be agreed, and courts are asked to intercede, it is common to permit picketers to stop cars for a
particular amount of time, often with the proviso that those who don’t wish to sit and listen will continue
unimpeded.

• That was NOT the case here because:

• Union’s willingness but Employer’s refusal to negotiate a PP
• Clear restraint on the picket line (orderly, non-violent etc…)

• If picketers are found to be engaging in violent or otherwise harassing behavior, that is a different matter
 WHAT ABOUT PRIVACY AND
EXPRESSIVE FREEDOM?
(ALBERTA V UNITED FOOD AND
COMMERCIAL WORKERS, LOCAL 401)
Alberta v United Food and Commercial Workers, Local 401

• What do you think of the SCC’s ruling regarding the privacy interests of those crossing the
line and the expressive interests of the union in publicizing that information?