Reference no: EM132960440
Citation: R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8 (CanLII), [2002] 1 SCR 156, <https://canlii.ca/t/51tz>, retrieved on 2021-03-19
Labour law -- Picketing -- Secondary picketing -- Union members picketing at locations other than employer's premises -- Employer obtaining an 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 engages 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 the 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 the 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.
Read the accompanying decision. And answer the following in details
1) Explain the difference in the approach to picketing in the Hersees of Woodstock decision and the Pepsi-Cola Canada decisions.
2) Provide three examples of picketing behaviour that would likely be ruled unlawful after the Pepsi-Cola Canada decision and explain why they would likely be unlawful.
3) What is the significance of this decision for unions and union strike activity?