BCLRB No. B270/94 (Reconsideration of BCLRB No. B21/93) BRITISH COLUMBIA LABOUR RELATIONS BOARD KMART CANADA LIMITED (the "Employer") -and- UNITED FOOD AND COMMERCIAL WORKERS' INTERNATIONAL UNION, LOCAL 1518 (the "Union") PANEL: Stan Lanyon, Chair John B. Hall, Associate Chair (Adjudication) Brian Foley, Associate Chair (Mediation) Emily Burke, Vice-Chair Keith Oleksiuk, Vice-Chair COUNSEL:Peter M. Archibald, Q.C., for the Employer John Baigent, for the Union Peter A Gall, for the Coalition of B.C. Businesses Gabriel M. Somjen, for the Business Council CASE NO.: 13653

- 2 - BCLRB No. B270/94 DATE OF HEARING: June 23, 1993 DATE OF DECISION: July 15, 1994

- 3 - BCLRB No. B270/94 DECISION OF THE BOARD

I. NATURE OF THE APPLICATION

The Union applied under Section 36 of the Industrial Relations Act (the "Act") for

reconsideration of a decision delivered orally on December 11, 1992 and revised (again orally)

on December 16, 1992. These decisions were subsequently reported as KMart Canada Limited -

and- United Food and Commercial Workers, Local 1518, BCLRB No. B21/93.

The issue is this case is whether the prohibition against leafleting contravenes Section

2(b), freedom of expression, of the Canadian Charter of Rights and Freedoms (the "Charter").

II. TRANSITIONAL

The Labour Relations Code, S.B.C. 1992, c.82 (the "Code") came into force on January

18, 1993 pursuant to Section 176 of the Code and B.C. Regulation 6/93. Section 115(1) of the

Code continues the Industrial Relations Council as the Labour Relations Board; Section 115(2)

provides that all business pending before the Council shall be continued before the Board.

Section 161 of the Code further provides that:

161. All applications, proceedings, actions and inquiries

commenced under the Industrial Relations Act shall be continued to their conclusion and treated for all purposes under and in conformity with this Code so far as it may be done consistently with this Code

Section 36 of the Act continues as Sections 141 and 142 of the Code, but with significant

changes. The right to have a decision reconsidered that existed under Section 36 of the Act was a

substantive right, not a procedural one. By applying for reconsideration under that section prior

to the enactment of the Code, the applicant's right became an accrued or accruing one. The

reconsideration jurisdiction that existed under the Act at the time the application was filed with

the Council is applicable to this application: Teskey v. Law Society of British Columbia (1990),

74 D.L.R. (4th) 146 (B.C.S.C.).

The applications, hearings and Orders issued in this matter by the original panel were all

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under the Act, with only the reasons being issued by the Board under the Code. The Union's

application is for reconsideration of a decision of the Industrial Relations Council and was filed

under the Act. The picketing provisions which are in issue arise under the Act. However, the

current picketing provisions under the Code are in substance almost identical (one change in

Section 65(6) gives the Board greater discretion with regard to common site picketing) to those

under the Act. No argument was made that the change in the picketing provisions of the new

Code had any impact on the legal or policy issues which arose in this appeal pursuant to the Act.

We will therefore deal with the current picketing provisions under the Code in

determining the issues in this appeal.

III. FINDINGS OF THE ORIGINAL PANEL

KMart applied under Sections 85, 88 and 90 of the Act seeking to restrain leafleting

activity by the Union at KMart's Lower Mainland and Victoria stores.

The facts are set out by the original panel at pages 3 and 4 of BCLRB No. B21/93. For

ease of reference they are reproduced here:

Kmart has seven stores in the Lower Mainland, two in

Victoria, one in Campbell River, and one in Port Alberni. The Union is certified to represent employees at the Port Alberni and Campbell River stores. Since June 8, 1992, at the Campbell River store, and July 8, 1992, at the Port Alberni Store, the Union has been on lawful strike. At the time of the hearings in this matter, the parties were in mediation with respect to those collective bargaining negotiations.

Kmart's Lower Mainland and Victoria stores are not organized by the Union. There was some vague reference at the first hearing in this matter to the Union picketing these stores on the Thanksgiving weekend. That was not pursued by the Employer. I make no findings of fact with respect to it and place no reliance upon it.

The activity at issue commenced on the evening of Friday, December 4, 1992. This was the first week of heavy, pre-Christmas shopping at Kmart. Though the specific detail of the activity varied from store to store, there was a consistent pattern of conduct at all of Kmart's Lower Mainland and Victoria stores that weekend. The activity consisted of individuals standing in front of

- 5 - BCLRB No. B270/94 the store entrances and handing leaflets to Kmart's customers as they were about to enter the stores. The individuals varied in number from two to twelve. They stood close to the store entrances, anywhere from two or three feet to ten to twenty feet from the entrances. The majority were two to three feet or six to eight feet away from the entrances. The activity occurred at both the mall entrances and the customer entrances on the parking lot side of the Kmart stores. The individuals at the Langley store were described as forming a "chain" at the store entrance.

The individuals handed to Kmart's customers either of two leaflets; in some instances they handed a button or pin. Copies of the leaflets are attached to these reasons. The first, and more common, leaflet was marked as Exhibit 1 in the Statutory Declaration of Charles Cote, which was filed in the proceedings. It referred to the Campbell River and Port Alberni bargaining dispute; bad faith bargaining charges laid against Kmart by the Union; and concluded by asking, on behalf of the Union and the labour movement of British Columbia, that customers not spend their Christmas dollars at Kmart, but rather shop at Kmart's competitors.

The other leaflet, which was marked as Exhibit 2 in the proceedings, contained more detail with respect to those same matters. It also referred to unfair treatment of women by Kmart. In one part, in a mock newspaper format, the leaflet refers to itself as "B.C. Fed. Edition -- 12/01/92." The last page has a brief message from the President and Chief Executive Officer of the Union, Brooke Sundin, with a picture of Mr. Sundin.

The button or pin is approximately 2" by 2." It has black printing on a white backdrop. In larger letters it says "Please don't shop Kmart," and has a red line drawn through Kmart. In smaller letters is "UFCW," and in smaller letters still, "Local 1518." There is a safety pin attached to the back so that it can be worn on clothing.

Customers were handed these leaflets or pins as they attempted to enter the Kmart stores. There was no evidence of threats, or of verbal or physical intimidation. However, the customers were consistently confronted and given the materials. The evidence established that some customers appeared confused, while others turned away from the store as a result of either receiving the materials and looking at them, or having a brief conversation with the individuals handing out the materials. The number of customers who turned away was small in relation to the customers entering the stores. There were also leaflets left on the

- 6 - BCLRB No. B270/94 windshields of cars in the parking lots.

The individuals were asked to stop confronting Kmart's

customers by either the store managers, mall security, or the

RCMP. At times the request was refused; at other times, the

individuals did leave, sometimes only to re-appear at the other

store entrance or at another store. The activity was concentrated

on Friday evening, Saturday afternoon, and Sunday afternoon.

The original panel made several findings. First, it rejected the Union's arguments that the

statutory definition of picketing in Section 1(1) of the Act should be "read down" to exclude

leafleting in light of Section 2(b) of the Canadian Charter of Rights and Freedoms. The original

panel found the reasoning in Overwaitea Foods' Division of Jim Pattison Industries Ltd., BCLRB

No. 14/87, (1987) 14 CLRBR (NS) 268, persuasive and followed it. Further, the original panel

also rejected the Union's argument that a statutory restriction, by virtue of Section 85(3), on

consumer-oriented leafleting was inconsistent with Section 2(b) of the Charter and should not

therefore be enforced by the Council. The original panel noted that a Charter challenge to the

constitutional validity of Section 85(3) of the Act was rejected by the Council in White Spot

Limited, IRC No. C260/88, and felt it was bound by that decision in the circumstances before it.

Second, the original panel found that the leafleting was intended to persuade persons not

to enter the non-struck Kmart stores and was picketing as defined by the Act. The order

subsequently issued by the Council restrained "picketing at or near the premises" of the non-

struck stores where leafleting had occurred.

Third, the original panel reserved its decision on the Kmart application under Section 90

in which it sought an order restraining the Union from disseminating the leaflets.

On December 16, 1992, in response to an application by KMart for clarification of the

Order granted, the Panel revised its original Order to prohibit "attending for the purpose of

persuading ... anyone not to enter" the non-struck stores, including activity "at or near entrances

to the above noted shopping malls in which Kmart Canada Limited Stores are located".

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IV. POSITIONS OF THE PARTIES

The Union seeks reconsideration of the original panel's rejection of the argument that

Sections 65(3) and 67 of the Code (previously Sections 85(3) and 88 of the Act) are

unenforceable to the extent that they proscribe consumer-oriented leafleting at non-struck Kmart

stores. It is the Union's position that such a prohibition constitutes an unreasonable limitation on

the right of freedom of expression contained in Section 2(b) of the Charter. In the Union's view,

the Charter allows it to persuade potential Kmart customers not to shop at Kmart stores by

advising those persons of a labour dispute at another Kmart store.

The Union submits that the Council's previous considerations of the constitutional validity

of a prohibition against leafleting in White Spot and Overwaitea, both supra, do not contain

persuasive analyses and are inconsistent with emerging law under Section 2(b) of the Charter.

It is the Union's position that the Council's previous analyses failed to distinguish the

different constitutional values involved in placard-oriented activity which disrupts employment

and/or deliveries, and consumer-oriented leafleting which does neither. In failing to analyze the

different values at play in either case, the Union alleges that White Spot failed to properly apply

the "proportionality test" set down in R. v. Oakes (1986), 26 D.L.R. (4th) 200 (S.C.C.).

With respect to the "proportionality test" the Union alleges that consumer leafleting does

not result in harm to innocent third parties nor to the economy, and that the restraints on the right

of freedom of expression have not been carefully designed to achieve the statutory objective of

insulating neutral third parties from the effects of a labour dispute. The Union points out that

Kmart would not be entitled anywhere else in Canada (with the possible exception of Alberta) to

an order restraining leafleting at its non-struck operations. The Union submits that picketing

legislation, as interpreted by the Council, bans all persuasion regardless of its correlation with the

statutory objective; there is no basis upon which it can be asserted that the denial of the right to

communicate by leaflets at shopping centres is proportionate to the objective of insulating

innocent third parties from the effects of a labour dispute.

With reference to the December 16th expansion of the original order to prohibit leafleting

at the entrances to the malls and in parking lots, the Union submits that the case at hand also

offers the Board its first opportunity of considering the Charter issues raised by a restraint of

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Section 2(b) rights in a public area not immediately adjacent to a struck employer's location. In

this context the Union also raises a non-Charter issue related to the meaning of "attending" in

Section 1(1). It is the Union's position that the distribution of pamphlets at mall entrances is not

encompassed by the language of Section 1(1) of the Code.

With respect to remedy the Union suggests that the Board "read-down" the picketing

definition in Section 1(1) so that consumer-oriented leafleting is excluded from the definition. In

the alternative the Board could decline to enforce Sections 65(3) and 67 to prohibit the leafleting

of non-struck stores.

KMart submits that the White Spot and Overwaitea decisions were correctly decided on

the constitutional issues raised; further, both decisions constitute an "all fours" circumstances to

the case under consideration and the constitutional authorities described by the Union as

"emerging law under Section 2(b) of the Charter" do not in any way compromise the reasoning in

those prior decisions.

It is KMart's position that leafleting and picketing should be treated in the same way, both

for policy analysis under the labour legislation and for constitutional analysis, because both are

intended to achieve the same result -- to dissuade persons from doing business with an employer.

KMart submits that acceptance of the appeal and adoption of either of the remedies sought

(ie. a reading down of the picketing definition or declining to enforce Sections 65(3) and 67)

would substantially change the law of picketing in the province.

The Business Council of British Columbia supports the position of KMart in this

application. The Business Council submits that the Union's suggestion that the interpretation of

the term picketing should be narrowed and reserved only for "conventional picketing" is not

supported by the jurisprudence relating to the Charter nor, in its view, is there a factual basis for

such a distinction.

The Business Council notes that the essence of picketing is the physical presence of

persons at or near the place of business of an employer with the purpose of attempting to

influence persons not to do business with the employer. The Business Council submits that the

customers of the employer are an important target of conventional picketing and are certainly the

primary target of the type of picketing in which the Union engaged in this case. It is the Business

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Council's submission that there is nothing that would suggest only "conventional picketing" was

intended to be included in the definition of "picketing" in the Act or that the Charter should limit

restrictions on such activity to "conventional picketing".

The Business Council submits that the Act is balanced and meets the "proportionality" test

by taking into account the ability of the Union to picket non struck locations in some

circumstances (ie. allies) and by balancing the interests of the struck employer, the striking union

and third parties including employers at non-struck locations.

The Business Council cautions that if the Union's position is accepted as correct, the

wider consequences are that unions would be free to leaflet an employer with whom it is

bargaining or an employer who was the subject of an organizing campaign. In the Business

Council's view the interpretation proposed by the Union would clearly distort the balancing of

different interests which the Act achieves.

The Coalition of B.C. Businesses also requests that the Union's application be dismissed.

The Coalition submits that labour laws are the product of trade-offs between competing interests

of two powerful groups, the trade union and business communities, both of whom have ready

access to the political process; the Charter should not be used to distort or disturb the balance that

has been struck by the Legislature in this area of the law. If amendments are sought or needed

to adjust the balance, the proper forum is the Legislature.

In the Coalition's view, the Union seeks to upset the balance struck by the Legislature by

using the Charter to extend the scope of permissible picketing. The Coalition submits that having

obtained a ban on replacement workers from the Legislature in exchange for curtailed picketing

rights, the Union now wants to use the Charter to expand the scope of lawful picketing to include

the right to engage in leafleting at the other locations of an employer involved in a labour dispute.

According to the Coalition, such an extension would not only be wrong as a matter of labour

relations policy, but would also be contrary to the clear direction of the courts regarding the

proper use of the Charter in the area of labour relations.

The Coalition acknowledges that picketing in the form of leafleting is a form of

expression protected by Section 2(b) of the Charter and that the provisions of the Code governing

picketing are intended to restrict expression in some circumstances and thus violate Section 2(b).

In the Coalition's view, the only issue in this reconsideration application is whether the

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restrictions on picketing in the form of leafleting are permitted under Section 1 of the Charter

because they are demonstrably justified in a free and democratic society. The Coalition notes

two crucial aspects of a Section 1 analysis. First, the analysis must not be carried out in a highly

abstract or mechanical fashion. Instead, the analysis must be flexible and sensitive to the factual

context in which both the rights and competing social values are asserted. Second, the courts

have taken a consistent approach of judicial restraint to the constitutional review of labour laws.

In the Coalition's view no valid distinction can be made between interference caused by

leafleting and that caused by a standard picket line; both are intended to persuade people not to

do business with an employer. The Coalition submits that the restrictions on picketing in the

form of leafleting are permitted under Section 1 because they are "demonstrably justified in a free

and democratic society". The Coalition's position is that restrictions on leafleting employers not

involved in a labour dispute, and leafleting uninvolved locations of a struck employer, are

justified on the same basis as restrictions on all forms of picketing. It submits that the restrictions

are necessary to advance the "pressing and substantial" goal of protecting businesses from

interference in the form of people attending at the premises of businesses to persuade others not

to deal with that business, except where a business is involved in a labour dispute at the location

in question.

Following the conclusion of the hearing the Supreme Court of Canada issued The

Corporation of the City of Peterborough v. Ramsden, [1993] 2 S.C.R. 1084, and the parties were

asked to make further submissions.

The Union notes that Ramsden, supra, is confirmatory of the approach taken in

Committee for the Commonwealth of Canada, (1991) 4 C.R.R. (2d) 60 and Irwin Toy Ltd. v.

Quebec (A.G.), [1989] 1 S.C.R. 927. According to the Union the Supreme Court of Canada's

analysis of Section 2(b) in Ramsden, supra, is supportive of its position. Under the contextual

approach the Court inquires to what extent a prohibition of expression compromises values

underlying the Charter. In Ramsden, supra, the Court concluded that the prohibition "militated

against social and political decision making" and was offensive. The Union argued similarly in

this case that a prohibition against leafleting at non-struck locations compromised informed

political, social and economic decision-making by consumers.

With respect to the "minimal impairment test" in the Section 1 analysis Ramsden, supra,

provides that a complete ban on a form of expression is the type of blunt prohibition that will not

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withstand Charter scrutiny and that, according to the Union, is precisely the type of leafleting ban

that occurred in this case. In the Union's submission the minimal impairment test could be met

only if the prohibition on leafleting was triggered by a disruption of employment or deliveries.

KMart notes the distinction between a struck and non-struck employer expressly adopted

in Section 65(7). It submits that unlike Ramsden, supra, the restriction on leafleting is rationally

connected to the statutory objective of protecting third parties by confining the labour dispute to

the actual struck location.

The Business Council submits that Ramsden, supra, has very limited application because

it does not involve a labour dispute or picketing; it did not involve a private labour dispute with

recognized and legitimate legislative objectives in limiting the effects on those who are not party

to the dispute; the ban on postering in Ramsden, supra was not part of a very carefully crafted

balancing of interests such as occurs in the legislative regulation of labour disputes; and in the

labour dispute in this case there is a direct relationship between the express activity of leafleting

and the labour dispute itself.

The Coalition notes that the Ramsden, supra, decision provides guidance for the Section 1

analysis and maintains that the restrictions on picketing in the Code are very narrowly drawn in

that the only effect of the provisions is to prohibit the communication of certain limited ideas and

information, for a specific purpose, by a person attending at a specific, narrowly defined place,

namely the employer's place of business, operations or employment. Following the principles

articulated in Ramsden, supra, the restrictions on leafleting are demonstrably justified under

Section 1. In the Coalition's view the restrictions on picketing are a clear example of legislation

that attempts to mediate compelling economic and political claims of organized labour with that

of employers.

Subsequent to the conclusion of the hearing KMart brought Section 136(2)(b)(iii) of the

Code to the Panel's attention. That subsection provides as follows:

136(2) Without limiting the generality of subsection (1), the board

has and shall exercise exclusive jurisdiction in respect of

* * *

(b) an application for the regulation, restraint or prohibition of

a person or group of persons from

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* * * (iii) communicating information or opinion in a

labour dispute by speech, writing or other means.

The Business Council submitted that the Board's jurisdiction under Section 136(2)(b)(iii)

emphasizes two important points; first, leafleting can be picketing and the Board must have the

power to regulate leafleting in order to meet its mandate to regulate labour disputes; and second,

there is a comprehensive legislative scheme in place to properly balance the interests of the

parties to a labour dispute and to protect the interests of third parties.

The Union notes that Section 136, and its predecessor, predate the Charter. Inasmuch as

no party contested the jurisdiction of the Board in this application the Union submits that this

provision has no relevance to the matter currently before the Board.

The Attorney General of Canada and the Attorney General of the Province were given

notice of the hearing; both declined to intervene in this matter at this stage.

V. ANALYSIS

(A) INTRODUCTION

We will first examine the Board's Orders issued in this matter; second, the statutory

provisions restricting picketing; third, the application of Sections 2(b) and 1 of the Charter to the

Code; and fourth, the remedies available under the Charter and specifically to this appeal.

(B) BOARD ORDERS

On December 11, 1992 the Industrial Relations Council issued the following Order

pursuant to Sections 28, 38 and 88 of the Act restraining the Union from picketing at the non-

struck locations of KMart stores:

1. The Industrial Relations Council declares that the United

Food & Commercial Workers, Local 1518 has contravened Sections 85 and 88 of the Industrial Relations Act;

- 13 - BCLRB No. B270/94 2. The Industrial Relations Council orders that the United

Food & Commercial Workers, Local 1518, its officers, member, employees and agents, and all persons having knowledge of this Order, shall refrain from picketing at or near the premises of KMart Canada Limited located at 32900 South Fraser Way, Abbotsford; 13665 - 102nd Avenue, Surrey; University Heights Shopping Centre, 3986 Shelbourne Street, Victoria; Westwood Mall, 3000 - 1 Lougheed Highway, Port Coquitlam; Delta Shoppers Mall, 8191 - 120th Street, Delta; Willowbrook Mall, 19705 Fraser Highway, Langley; Semiahmoo Shopping Centre, 1715 - 152nd Street, Surrey (White Rock); Chilliwack Mall, 200 - 45610 Luckakuck Way, Chilliwack; Canwest Shopping Centre, 100 - 1945 Jacklin Road, Victoria.

This Order was filed in the Supreme Court of British Columbia on December 14, 1992

(Vancouver Registry No. A924814).

On December 12 and 13, 1992 individuals carrying placards attended at the entrances to

some of the shopping malls where leafleting had previously occurred. In addition, leaflets were

also distributed in the parking lots of the non-struck KMart stores. On December 16, 1992 the

Industrial Relations Council reviewed its original Order and amended it to read as follows:

1. The Industrial Relations Council declares that the United

Food & Commercial Workers, Local 1518 has contravened Sections 85 and 88 of the Industrial Relations Act;

2. The Industrial Relations Council orders that the United Food & Commercial Workers, Local 1518, its officers, member, employees and agents, and all persons having knowledge of this Order, shall refrain from picketing at or near the premises of KMart Canada Limited located at Seven Oaks Shopping Mall, 32900 South Fraser Way, Abbotsford; Kmart Plaza, 13665 - 102nd Avenue, Surrey; University Heights Shopping Centre, 3986 Shelbourne Street, Victoria; Westwood Mall, 3000 - 1 Lougheed Highway, Port Coquitlam; Delta Shoppers Mall, 8191 - 120th Street, Delta; Willowbrook Mall, 19705 Fraser Highway, Langley; Semiahmoo Shopping Centre, 1715 - 152nd Street, Surrey (White Rock); Chilliwack Mall, 200 - 45610 Luckakuck Way, Chilliwack; Canwest Shopping Centre, 100 - 1945 Jacklin Road, Victoria, which means refraining from watching and besetting, or attending at or

- 14 - BCLRB No. B270/94 near the aforementioned places of business, operations or employment of Kmart Canada Limited for the purpose of persuading or attempting to persuade anyone not to enter those places of business, operations or employment, not to deal in or handle Kmart Canada Limited's products, or not to do business with Kmart Canada Limited and includes a similar act at such place that has an equivalent purpose, and, without in any way limiting the generality of the foregoing, includes picketing at or near entrances to the above noted shopping malls in which Kmart Canada Limited stores are located. (emphasis added)

The added provisions of this Order focused on preventing members of the Union from

persuading or attempting to persuade consumers not to do business with KMart at or near

entrances to the KMart stores and at the entrances to the malls in which the KMart stores were

located.

This revised Order of the Industrial Relations Council was filed in the Supreme Court of

British Columbia (Vancouver Registry No. A924897) on December 17, 1992.

(C) PICKETING PROVISIONS

(a) Statutory Provisions

Section 65 of the Code reads as follows:

65. (1) In this section "ally" means a person who, in the board's opinion, in combination, in concert or

in accordance with a common understanding with an employer assists the employer in a lockout or in resisting a lawful strike;

"common site picketing" means picketing at or near a site or place where (a)2 or more employers carry on operations, employment or business, and (b)there is a lockout or lawful strike by or against one of the employers

referred to in paragraph (a), or one of them is an ally of an employer by or against whom there is a lockout or lawful strike.

(2) A person who, for the benefit of a struck employer, or for the benefit of an employer who has locked out, performs work, supplies goods or furnishes services of a nature or kind that, except for a lockout or lawful strike, would be performed, supplied or furnished by the employer, shall be presumed by the board to be the employer's ally unless he or she proves the contrary.

- 15 - BCLRB No. B270/94 (3) A trade union, a member or members of which are lawfully

on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union performs work under the control or direction of the employer if the work is an integral and substantial part of the employer's operation and the site or place is a site or place of the lawful strike or lockout.

(4) The board may, on application and after making the inquiries it requires, permit picketing

(a)at or near another site or place that the employer causing a lockout or whose employees are lawfully on strike is using to perform work, supply goods or furnish services for the employer's own benefit that, except for the lockout or strike, would be performed, supplied or furnished at the site or place where picketing is permitted by subsection (3), or

(b)at or near the place where an ally performs work, supplies goods or furnishes services for the benefit of a struck employer, or for the benefit of an employer who has locked out,

but the board shall not permit common site picketing unless it also makes an order under subsection (6) defining the site or place and restricting the picketing in the manner referred to in that subsection.

(5) In subsection (4) "employer" means the person whose operation may be lawfully picketed under subsection (3).

(6) The board may, on application or on its own motion, make an order defining the site or place at which picketing that is permitted by subsection (3), or that is permitted under subsection (4), may take place and where the picketing is common site picketing, the board shall restrict the picketing in such a manner that it affects only the operation of the employer causing the lockout or whose employees are lawfully on strike, or an operation of an ally of that employer, unless it is not possible to do so without prohibiting picketing that is permitted by subsection (3) or (4), in which case the board may regulate the picketing as it considers appropriate.

(7) For the purpose of this section, divisions or other parts of a corporation or firm shall, if they are separate and distinct operations, be treated as separate employers.

Essentially, a trade union is entitled to picket only the location where the striking

employees normally perform work - "the site of the struck work" (Section 65(3)). In addition,

the struck work must be under the control of the struck employer, must be an integral and

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substantial part of that employer's operations and, finally, the location of picketing must be the

site of the lawful strike. Therefore, the intent and purpose of this provision is to limit picketing

not only to the primary employer (the employer which is the party to the collective bargaining

dispute) but also to the primary site - the actual physical location of the struck work. A similar

analysis applies in the circumstances of a lockout.

Thus, a "secondary" site of the primary employer (a separate physical location of the

same employer where no employees of the bargaining unit work) or a separate and distinct

division of the same employer which is under a different collective agreement or is non-union,

are all insulated from the specific labour dispute. It follows, therefore, that any true secondary

employer (a neutral third party) is also insulated from any picketing which results from a

particular labour dispute.

The exceptions to insulating a second site, or a division of the primary employer, or to

insulating a neutral third party, are set out in Section 65(4). A union may picket the second site

of a primary employer if struck work has been moved to that second site; or a union may also

picket a neutral third party if the latter becomes an "ally" of the struck employer (ie. if it assists

the struck employer to resist the lawful strike). These exceptions are consistent with the statutory

logic of limiting the picketing to the location of the struck work and restricting the economic

effect of the strike to the disputants themselves. In the first exception, the employer has

voluntarily moved the location of the struck work; in the second, the ally has lost its neutrality by

assisting the primary to resist the lawful strike.

Finally, the Board has a general discretion to limit picketing under Section 65(6),

notwithstanding its lawfulness, where there are two or more employers at the same location (eg.

an office building). Under this provision the Board has the authority to regulate picketing at a

"common site" so that it affects only the struck employer. This is the case even if the restrictions

should affect the right of a trade union to picket under Sections 65(3) and (4) of the Code.

In all other respects beyond those set out above, picketing is prohibited:

67. Except as provided in this Code, a person shall not picket in

respect of a matter or dispute to which this Code applies.

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The purpose of the picketing provisions must be read in concert with the overall purposes

of the Code. These purposes include Section 2(1) (c), (d) and (e) which provide:

2. (1) The following are the purposes of this Code:

* * * (c) to minimize the effects of labour disputes on persons who

are not involved in the dispute;

(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;

(e) to ensure that the public interest is protected during labour disputes; ...

The overall purposes of the Code and the specific language of the picketing provisions,

therefore, seek to insulate neutral third parties from the adverse economic effects of labour

disputes. The other provisions of the Code which relate to Section 65 are the following: Section

1 - Picketing Definition; Section 64 - Information; Section 66 - Actions; Section 67 - Picketing

Restricted; Section 68 - Replacement Workers; Section 70 - Declaratory Opinion; Section 136 -

Jurisdiction of the board; and Section 139(w) - Jurisdiction of board to decide certain questions.

We will examine these provisions in light of the Charter, particularly Section 2(b) and Section 1.

Before proceeding to an analysis of the current picketing provisions and the Charter, we

will briefly review the previous picketing provisions under the former Labour Code and the Act.

This will be useful not only to place the current provisions within their historical context but,

more importantly, because a significant part of the discussion concerning the current statutory

scheme is based upon the earlier statutory provisions and policy decisions.

(b) Prior Statutory Picketing Rights

In comparison to the current Code, the original Labour Code, RSBC 1973, c.122 set out

much broader rights of picketing. Sections 85 and 86 read as follows:

- 18 - BCLRB No. B270/94

85. (1) A trade union, a member or members of which are lawfully

on strike, or locked out, or any person authorized by the trade-union, may picket, as the word is defined in this Act, at or near

(a) the site or place of the lockout or lawful strike; (b) all other sites or places of business, operations, or

employment of the employer, including (i) any place where an employee of that

employer is carrying on the business of that employer, whether the place is owned or controlled by the employer or not; and

(ii) any place that the employer operates or where the employer does any thing forming part of the operation of his business;

unless a collective agreement is in force between the trade-union, or another trade-union and the employer at that site or place whose employees are on strike, and the board, in its discretion, prohibits picketing; and

(c) the place of business, operations, or employment of any ally of the employer.

(2) For the purposes of this section, "ally" includes a person who, in the opinion of the board, in combination, or in concert, or in accordance with a common understanding with the employer, assists an employer in a lockout, or in resisting a lawful strike.

(3) A person who performs work, supplies goods, or furnishes services of a nature or kind that, except for a lockout or lawful strike, would be performed, supplied, or furnished by the employer, shall unless he proves the contrary, be presumed to be an ally of the employer.

86. Where two or more employers carry on business, operations, or employment at a common site or place and there is a lockout or lawful strike by or against one of them, and picketing is taking place, the board may, on the application of any interested party, or on its own motion, in its discretion, give directions respecting the picketing so as to reasonably restrict and confine the picketing to the employer causing its lockout, or whose employees are on strike.

The focus of these provisions was on the location(s) where the employer carried out its

business. Picketing was permissible at both the primary and secondary sites of that employer -the

"primary site" being the actual site or place of the lockout or strike and the "secondary site"

being the other operations of the struck employer which were physically separated from the site

- 19 - BCLRB No. B270/94

of the strike. This included any other sites or places of business, operations or employment of

the struck employer, whether or not that place was owned or controlled by the employer. It was

also permissible to picket an ally. Section 86 regulated the picketing of common sites.

Section 85(1)(b)(ii) authorized the Board to protect secondary operations of the employer

if there was an existing collective agreement. Under this provision the Board had the discretion

to respond to what it saw as an undue escalation of a dispute from the original site -- one which

had the effect of producing a "disproportionate harm on the operations and employees of that

employer": Domtar Construction Materials Ltd., BCLRB No. 69/75, [1976] 1 Can LRBR 81.

In 1984 significant changes were made to the picketing provisions. Sections 85 and 86

were repealed and replaced by a new Section 85 which read as follows:

85. (1) In this section "ally" means a person who, in the board's opinion, in combination,

in concert or in accordance with a common understanding with an employer assists him in a lockout or in resisting a lawful strike;

"common site picketing" means picketing at or near a site or place where

(a) 2 or more persons carry on operations, employment or business; and

(b) there is a lockout or lawful strike by or against one of the persons referred to in paragraph (a), or one of them is an ally of an employer by or against whom there is a lockout or lawful strike

(2) A person who performs work, supplies goods or furnishes services of a nature or kind that, except for a lockout or lawful strike, would be performed, supplied or furnished by the employer shall be presumed by the board to be the employer's ally unless he proves the contrary,

(3) A trade union, a member or member of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union is locked out or lawfully on strike.

(4) The board may, on application and after making the

inquiries it requires, permit picketing

(a) at or near another site or place which the employer causing a lockout or whose employees are lawfully on strike is

- 20 - BCLRB No. B270/94 using to perform work, supply goods or furnish services that, except for the lockout or strike, would be performed, supplied or furnished at the site or place where picketing is permitted by subsection (3), or

(b) at or near the place of business, operations or employment of an ally, but the board shall not permit common site picketing unless it also makes an order under subsection (5) defining the site or place and restricting the picketing in the manner referred to in that subsection.

(5) The board may, on application or on its own motion, make an order defining the site or place at which picketing that is permitted by subsection (3), or that is permitted under subsection (4), may take place, and where the picketing is common site picketing the board shall by the order reasonably restrict the picketing to the employer causing the lockout, or whose employees are on strike, or to an ally of that employer.

The overall effect of these changes was to shift the focus from the employer and its

business to the employees and the locations where they performed their struck work: Slade &

Stewart Ltd., BCLRB No. 317/84, (1984) 7 CLRBR (NS) 258. A trade union was now limited

in its right to picket under Section 85(3) to "at or near a site or place where a member of the

trade union is locked out or lawfully on strike". Under Section 85(4) prior authorization was

now mandatory in order to picket other sites or places that were not contemplated by Section

85(3). This included other sites where the employer had either moved the struck work or where

a third party had made itself an ally of the struck employer. In regard to a common site, the

Board was to "reasonably restrict" picketing to the struck employer under Section 85(5).

In 1987 the picketing provisions were once again amended. The amendments further

defined and restricted what constituted a primary site. Section 85 of the Act read as follows:

85. (1) In this section "ally" means a person who, in the council's opinion, in

combination, in concert or in accordance with a common understanding with an employer assists him in a lockout or in resisting a lawful strike;

"common site picketing" means picketing at or near a site or place where

(a) 2 or more employers carry on operations, employment or business, and

(b) there is a lockout or lawful strike by or against one of the

- 21 - BCLRB No. B270/94 employers referred to in paragraph (a), or one of them is an ally of an employer by or against whom there is a lockout or lawful strike.

(2) A person who, for the benefit of a struck employer, or for the benefit of an employer who has lock out, performs work, supplies goods or furnishes services of a nature or kind that, except for a lockout or lawful strike, would be performed, supplied or furnished by the employer shall be presumed by the council to be the employer's ally unless he proves the contrary,

(3) A trade union, a member or member of which are lawfully on strike or locked out, or a person authorized by the trade union, may picket at or near a site or place where a member of the trade union performs work under the control or direction of the employer if the work is an integral and substantial part of the employer's operation and the site or place is a site or place of the lawfully strike or lockout.

(4) The council may, on application and after making the inquiries it requires, permit picketing

(a) at or near another site or place which the employer causing a lockout or whose employees are lawfully on strike is using to perform work, supply goods or furnish services for the employer's own benefit that, except for the lockout or strike, would be performed, supplied or furnished at the site or place where picketing is permitted by subsection (3), or

(b) at or near the place where an ally performs work, supplies goods or furnishes services for the benefit of a struck employer, or for the benefit of an employer who has locked out,

but the council shall not permit common site picketing unless it also makes an order under subsection (5) defining the site or place and restricting the picketing in the manner referred to in that subsection.

(4.1) In subsection (4) "employer" means the person whose operation may be lawfully picketed under subsection (3).

(5) The council may, on application or on its own motion, make an order defining the site or place at which picketing that is permitted by subsection (3), or that is permitted under subsection (4), may take place, and where the picketing is common site picketing the council shall restrict the picketing in such a manner

- 22 - BCLRB No. B270/94 that it affects only the operation of the employer causing the lockout or whose employees are lawfully on strike, or an operation of an ally of that employer.

(6) For the purposes of this section, divisions or other parts of a corporation or firm shall, if they are separate and distinct operations, be treated as separate employers.

The location of permissible picketing now had to fulfil four prerequisites: first, the struck

work had to be performed by "a member of the trade union who was lawfully on strike"; second,

the struck work performed by the union member had to be "work under the control or direction

of the employer"; third, the struck work had to be "an integral and substantial part of the

employer's operation"; and, fourth, the site had to be "a site or place of lawful strike or lockout":

Lafarge Canada Inc., Western Region, IRC No. C156/88.

In regard to common site picketing the words "reasonably restrict" were removed in order

to further limit picketing to a struck employer, even if this resulted in removing entirely the

lawful right to picket. Further, Section 85(6) was added; it provided that separate and distinct

operations "of the same employer" were to be treated as separate employers. This provision

restricted picketing where there was common ownership of different divisions or operations of

the same business. Finally, Section 85(4)(a) limited a union's right to picket an ally by requiring

that the performance of the struck work had to be for the benefit of the struck employer.

The current picketing provisions under the Code are almost identical to those found under

the Act. The one distinction is that the Board is once again given a discretion to regulate

common site picketing as it "considers appropriate".

(c) Summary

Since the inception of the Code in 1973 a trade union's right to picket has been

increasingly restricted. The intent and effect of these restrictions has been to not only limit the

impact of labour disputes and picketing on innocent third parties, but also to restrict and limit

who is the "primary" employer.

- 23 - BCLRB No. B270/94

(D) FREEDOM OF EXPRESSION AND SECTION 2(B) OF THE CHARTER

(a) Overview and Analytical Framework

The Supreme Court of Canada has had the opportunity to hear and decide a number of

freedom of expression cases: Retail, Wholesale & Department Store Union, Local 580 v.

Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712; Irwin

Toy Ltd., supra; Edmonton Journal v. Alberta (A.G.) (1989), 64 D.L.R. (4th) 577; Reference re

ss. 193 and 195.1(1)(c) of the Criminal Code (Manitoba), [1990] 1 S.C.R. 1123; Rocket v. Royal

College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232; R. v. Keegstra (1980), 3 C.R.R.

(2d) 193 (S.C.C.) and Ramsden, supra. In these cases the Supreme Court has outlined the

underlying principles and values inherent in Section 2(b) of the Charter, as well as the

philosophical and historical role of free expression in Canadian society.

Section 2(b) of the Charter reads as follows:

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

Section 1 reads as follows:

1. The Canadian Charter of Rights and Freedoms guarantees

the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as to be demonstrably justified in a free and democratic society.

In R. v. Keegstra, supra, McLachlin J. refers to both the "instrumental and intrinsic

justification of free expression" (p. 270). Freedom of expression, therefore, is seen as both a

means to an end and as an end in itself.

As a means to an end, freedom of expression is an essential element of democratic

practice; as an end in itself freedom of expression is critical to both human dignity and autonomy.

McIntyre J., in Dolphin Delivery, supra, commented on the significance of "freedom of

- 24 - BCLRB No. B270/94

expression in true democratic societies":

...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. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection. (p. 183)

In essence, without the ability to speak and write freely, a citizen would be unable to

participate in representative government. The ability to comment, to inform and to criticize on

every conceivable subject -- whether political, social, economic or religious -- ensures not only

the greatest participation, but also the free flow of ideas essential to the functioning of democratic

institutions.

Further, freedom of expression is seen as a critical element in the other basic freedoms

guaranteed by the Charter -- freedom of association, assembly and religion. Without freedom of

expression these other basic freedoms could be more easily undermined. Therefore, inherent in

this concept of freedom of expression is protection not only for the speaker but also for the

listener. It is the right of a citizen to be informed about the workings of our public institutions

(through freedom of the press for example) that has led the Supreme Court of Canada to give an

enhanced protection to freedom of expression. As Corey, J., stated in Edmonton Journal, supra:

It is difficult to imagine a guaranteed right more important

to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. (p. 607)

And as stated by McLachlin J., in R. v. Keegstra, supra:

...All this suggests that the framers of the Charter envisaged

freedom of expression as a comprehensive, fundamental right of great importance. (p. 272)

In addition to its fundamental importance to democratic societies, the other essential

- 25 - BCLRB No. B270/94

aspect of freedom of expression is its significance to human autonomy and dignity: Richard

Moon, "The Scope of Freedom of Expression" (1985), 23 Osgoode Hall Law Journal 331.

Implicit in the concept of freedom of expression is a moral vision of both the individual and

society. Freedom of expression links one individual to all other individuals and, therefore,

enhances the development of both the individual and their community. The emotional and

intellectual development of an individual is primarily a social development; therefore, the

capacity to engage in rational thought, to make moral judgments, to form social, political and

religious beliefs, all take place within the society in which that individual is nurtured. Freedom of

expression is an affirmation of the basic principle that individuals are capable of making an

informed and intelligent judgment both about their individual interests and the social good. This

promotes the development of both the individual and society, and accords a value of respect and

dignity concerning the judgments and choices made by individuals. McLachlin, J., in R. v.

Keegstra, supra, commented on this aspect of freedom of expression:

...While freedom of expression provides no guarantee that the

truth will always prevail, it still can be argued that it assists in promoting the truth in ways which would be impossible without the freedom. One need only look to societies where free expression has been curtailed to see the adverse effects both on truth and on human creativity. It is no coincidence that in societies where freedom of expression is severely restricted truth is often replaced by the coerced propagation of ideas that may have little relevance to the problems which the society actually faces. Nor is it a coincidence that industry, economic development and scientific and artistic creativity may stagnate in such societies. (p. 269)

However, freedom of expression is not an absolute value. It must be balanced with other

values that society considers equally important. As well, freedom of expression can at times be

detrimental to social harmony. Speech that is defamatory or which may invoke hatred or incite

acts of violence, clearly needs to be regulated by law, and any such laws would necessarily

outweigh any infringement of freedom of expression.

Acknowledging that freedom of expression is not absolute, what then are the broad legal

principles that govern Section 2(b) freedom of expression?

First, in Edmonton Journal, supra, the Court expressed the view that the preferred

analytical approach to the examination of rights under the Charter is "a combined purposive and

- 26 - BCLRB No. B270/94

contextual approach". A particular right or freedom may have a different meaning or value

depending upon the context in which it is weighed. The Court further stated that this does not

affect the analytical steps required in the first part of the test (the onus test) but it may affect the

balancing which ultimately takes place under Section 1.

Second, in the proportionality test established by R. v. Oakes, supra, there is a

bifurcation in the analytical steps between the breach or infringement of a right, and the

justification required under Section 1. The analytical effect of this bifurcation under Section 2(b)

is as follows: freedom of expression is given a comprehensive scope -- "all expression is prima

facie protected": Keegstra, supra, at p. 271. Any infringement of freedom of expression must

then be justified under Section 1. The effect of this is to give the widest possible scope to

freedom of expression and any infringement of that freedom is to be balanced expressly under

Section 1. This analysis is preferred to employing different or competing definitions of freedom

of expression under Section 2(b).

Third, in Irwin Toy, supra, the Court identified both the instrumental and intrinsic

justifications or values underlying freedom of expression. Dickson, C.J.C. summarized these as

follows in R. v. Keegstra, supra:

...(1) seeking and attaining truth is an inherently good activity; (2)

participation in social and political decision-making is to be fostered and encouraged; and (3) diversity in forms of individual self-fulfilment and human flourishing ought to be cultivated in a tolerant and welcoming environment for the sake of both those who convey a meaning and those to whom meaning is conveyed. (p. 214)

Finally, Irwin Toy, supra, set out the analytical framework to be employed in examining

the scope of freedom of expression and the reasonable limits which may be placed upon it. That

analysis will be discussed in detail in the remainder of this decision. First, a summary of this

analysis.

In examining the scope of freedom of expression and determining whether there has been

a breach of Section 2(b) we are directed by the caselaw to review the following:

- 27 - BCLRB No. B270/94

1. Does the activity convey or attempt to convey meaning?

2. If so, is the activity protected by Section 2(b)?

3. Is the purpose or the effect of the government action to restrict freedom of

expression?

If the answer to all three of these issues or questions is "yes" then an infringement of freedom of

expression has been established.

The issue then becomes whether the infringement can be saved by Section 1. To

determine this issue we engage in the following analysis:

1. Do the objectives of the legislation relate to a pressing and substantial

concern?

2. Are the means chosen to attain the objective reasonably and demonstrably

justified?

(a) Are the means rationally connected to the objectives?

(b) Do the means impair the freedom as little as possible?

(c) Is the effect of the infringement proportional to the objectives?

We will examine the picketing provisions of the Code in view of the above analysis to see

if the provisions infringe the Charter's guarantee of freedom of expression and, if so, whether

these provisions are a reasonable limit which can be demonstrably justified in a free and

democratic society.

(b) Charter Analysis

(i) Establishing a Breach of Section 2(b):

1. Does the Activity Convey or Attempt to Convey Meaning; and

2. If so, is the Activity Protected by Section 2(b)?

We will deal with the first two parts of the test together.

The first thing to note is that freedom of expression is not simply freedom of speech but

- 28 - BCLRB No. B270/94

includes all communication where there is an intention to express some state of affairs to another

person.

...All activities which convey or attempt to convey meaning prima

facie fall within the scope of the guarantee: (Keegstra, supra, p. 285)

Second, expression includes both content and form. In other words, no distinction is

made between speech and conduct since the freedom is one of expression and not speech.

Therefore, physical activity itself can also constitute part of the meaning or expression. As stated

in Irwin Toy, supra:

"Expression" has both a content and a form, and the two

can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. (p. 968)

Third, the specific content of the communication is not at issue in determining whether

the activity conveys or attempts to convey meaning (with the exception of violence). As the

Supreme Court of Canada stated in Keegstra, supra:

...the guarantee applies regardless of the nature of the content of

the expression. The nature of the content of expression can never function to exclude it from the protection of the Charter. (p. 285)

In Dolphin Delivery Limited, supra, the Supreme Court of Canada rejected the B.C.

Court of Appeal's conclusion that picketing cannot fall within freedom of expression because it

was "conduct", rather than "speech". The perception of picketing as solely a "signal", which

acts like an "electric fence" creating an almost "Pavlovian" response among trade unionists not to

cross a picket line, is a view of picketing that sees it as akin to an instinctive or unthinking

reaction rather than as expressive activity. This conception of picketing is borrowed in part from

the American jurisprudence (speech/conduct doctrine) which was employed to provide relief

from secondary picketing (a reaction to the wide protection given picketing in Thornhill v.

Alabama (1940), 310 U.S. 88 (Supreme Court). Therefore, by employing what Professor Joseph

Weiler described as a "definitional stop" - building the harm rule into the definition of the

freedom - the "conduct" of secondary picketing was not protected under the First Amendment.

See: J. Weiler and R. Elliot, eds, "The Regulation of Strikes and Picketing Under the Charter" in

- 29 - BCLRB No. B270/94

Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms (Vancouver:

Carswell, 1986).

The actual practise of picketing includes physical activity. Commonly, one or more

individuals will gather in front of an employer's business and parade back and forth in front of

the entrance of that business. There may be placards, leaflets, posters, sandwich boards, perhaps

speeches or sound equipment, and the "canvassing" of potential customers to inform them about a

particular dispute. The objective of the picketers is to both communicate the facts of a labour

dispute to potential customers and to attempt to persuade them not to purchase the particular

struck goods or to otherwise do business with the struck employer.

It is this expressive activity which makes an appeal to public sympathy or to an

individual's beliefs or values that underlies the view of picketing as attempt to rationally

persuade. Thus a different view of picketing is presented by Carrothers, Palmer and Rayner in

Collective Bargaining Law in Canada, 2d ed. (Vancouver: Butterworths, 1986):

...Picketing has an intellectual appeal; whatever else, it is an appeal

to reason. In a given case it may be found to be "mere sloganeering, or subtle psychological manipulation (or not so subtle psychological arm-twisting)", but in essence it is a rational exercise. The picket's purpose in a consumer boycott is to enlist consumer support in his dispute with his employer. The consumer response can be positive or negative and can result from any number of motivations and conditioned responses, but they cannot be dismissed as non-rational. A consumer may continue to purchase the offending product because he is hostile to union activity in general, or because he has knowledge of the dispute and supports the position of management. Or he may cease to buy the product because he is himself a union member and makes it a practice to support all union causes, or because he has a soft spot for the plight of the worker, or because he believes the union has a legitimate grievance in the dispute. In all cases the response is based on belief or thought. The form of the appeal is no less intellectual than placards, banners and slogans that bombard the public during an election campaign.

It has also been suggested that picketing is not merely the

communication of ideas but is a calculated economic sanction, since it automatically triggers certain conventional economic

- 30 - BCLRB No. B270/94 responses. A handbill, phone call, advertisement, newspaper story, or any other kind of notice could trigger the same response. The conventional response may give reason to limit the activity, but this does not mean that the "trigger" itself is not a form of expression. (p. 713)

This characterization of picketing (which is inclusive of the "trigger" or "signal" effect of

picketing) underlies the basic conception of picketing as freedom of expression: picketing has an

intellectual or rational appeal and the response is based upon belief or thought.

Further, picketing has not been defined by the Supreme Court as only economic or

commercial speech and thereby afforded less protection than other forms of political speech

under Section 2(b). This is a recognition that collective bargaining and labour law often involve

not simply economic issues but fundamental legal, political and social issues. It is further

recognition of the importance of a person's livelihood and the significance of their dignity in the

work place. An individual's employment is not only of considerable financial importance to that

employee and their family, but also provides significant social and psychological needs. It is also

self-evident that work has an enormous importance to the economic well being of our society as a

whole. Former Chief Justice Dickson states the following in Reference re Public Service

Employee Relations Act (1987), 38 D.L.R. (4th) 161 (S.C.C.), at page 199:

Work is one of the most fundamental aspects in a person's

life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identify, self-worth and emotional well-being. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person's dignity and self-respect. In exploring the personal meaning of employment, Professor Beatty, in his article "Labour is not a Commodity" in Reiter and Swan (eds.), Studies in Contract Law (Toronto, Butterworths, 1980), has described it as follows, at p. 324:

As a vehicle which admits a person to the status of a

contributing, productive, member of society, employment is seen as providing recognition of the individual's being engaged in something worthwhile. It gives the individual a sense of

- 31 - BCLRB No. B270/94 significance. By realizing our capabilities and contributing in ways society determines to be useful, employment comes to represent the means by which most members of our community can lay claim to an equal right of respect and of concern from others. It is this institution through which most of us secure much of our self-respect and self-esteem.

The Chief Justice then commented on the significance of trade unions and the role of collective

bargaining in Canadian society:

...While trade unions also fulfil other important social, political

and charitable functions, collective bargaining remains vital to the capacity of individual employees to participate in ensuring fair wages, health and safety protections and equitable and humane working conditions. (p. 199)

The Chief Justice then went on to quote Paul Weiler in Reconcilable Differences - New

Directions in Canadian Labour Law (Toronto: Carswells, 1980), at pp. 31 - 33, in which

collective bargaining is described as an intrinsically valuable experience in self-government:

...collective bargaining is the most significant occasion upon which

most of these workers ever participate in making social decisions about matters that are salient to their daily lives. That is the essence of collective bargaining. (p. 32)

Finally, a passage from the Woods Task Force Report on Canadian Industrial Relations (1968),

set out the rationale for collective bargaining in regard to both our democratic traditions and the

rule of law:

One of the most cherished hopes of those who originally

championed the concept of collective bargaining was that it would introduce into the work place some of the basic features of the political democracy that was becoming the hallmark of most of the western world. Traditionally referred to as industrial democracy, it can be described as the substitution of the rule of law for the rule of men in the work place. (p. 96)

It is clear from both the enhanced stature of freedom of expression under the Charter, and from

- 32 - BCLRB No. B270/94

the fundamental significance of labour policy to Canadian society, that picketing has not received

some lesser standard of constitutional protection. This is best captured by Chief Justice Dickson

in B.C.G.E.U. v. A.G.B.C. (1988), 53 D.L.R. (4th) 1 (S.C.C.):

Picketing is a crucial form of collective action in the arena

of labour relations. A picket line is designed to publicize the labour dispute in which the striking workers are embroiled and to mount a show of solidarity of the workers to their goal. It is an essential component of a labour relations regime founded in the right to bargain collectively and to take collective action. It represents a highly important and now constitutionally recognized form of expression in all contemporary labour disputes. All of that is beyond dispute. (p. 12)

In the facts of the case before us the leafleting which the Board found to be picketing took

place at various shopping malls in different parts of the Province. It emanated from a lawful

dispute -- the employees had been locked out -- and there was no evidence of threats or of verbal

or physical intimidation. Approximately 140 employees had been locked out for six months at

two KMart stores. The material appealed to the public not to spend their Christmas dollars at

any KMart store. The material also mentioned that 95% of the employees were women who

worked part time. The employees were seeking a first collective agreement. The collective

bargaining issues identified in the leafleting materials included not only wages and working

conditions, but also employment equity and job security.

In attempting to obtain a first collective agreement these employees were seeking the basic

fundamentals that a collective agreement provides; for example, a grievance procedure, unjust

dismissal provisions, seniority, improved wages and working conditions. These basic contract

provisions underlie the value of collective bargaining - rule of law, industrial democracy, voice,

dignity and job security. Quite clearly these materials attempted to convey meaning which is

consistent with the labour dispute and with the goals of achieving collective bargaining. These

goals, as we will show, are also consistent with the values that underlie freedom of expression as

set out in Irwin Toy, supra,.

Therefore, under this part of the test, it is clear that this leafleting or picketing activity

attempted to convey and did convey meaning. And the Supreme Court of Canada has stated that

such picketing activity is protected under Section 2(b) of the Charter (BCGEU, supra and

- 33 - BCLRB No. B270/94

Dolphin Delivery, supra).

3. Is the Purpose or Effect of the Government Action to Restrict Freedom of

Expression?

Moving to the next stage of the inquiry under Section 2(b) of the Charter, a violation only

arises if it can be demonstrated that the purpose or the effect of the government action is to

restrict freedom of expression.

It may be shown that the legislative intention is expressly to infringe freedom of

expression. If this claim succeeds, then the infringement is established. However, if the

legislative aim is not to infringe freedom of expression, then the claimant must establish that the

effect of the legislation is to infringe freedom of expression. The distinction between purpose and

effect is also expressed in the distinction between an enactment that is "content based" or one that

is "content neutral".

An example of a "content based" restriction would be a statute that expressly prohibited

certain political, religious or economic views. An example of "content neutral" legislation which

contained only "time, place or manner" restrictions would be the regulation of public

demonstrations through laws such as the requirement to obtain permits (which set out time and

place restrictions) and through laws concerning littering. The first statutory prohibitions clearly

aim to restrict the expression of certain views while the latter do not. However, the latter may

have the effect of infringing freedom of expression if the regulation of the conduct is so

restrictive that, in effect, the freedom becomes an empty exercise.

Where the purpose of the legislation is not to infringe, there is an onus on the claimant to

show that both his or her conduct incorporates, and the legislation violates, one of the three basic

values underlying the freedom of expression identified in Irwin Toy, supra: the seeking and

attaining of truth; participating in social and political decision making; and individual self-

fulfilment and human flourishing.

Finally, purpose is not simply defined in terms of only the actual legislative aim designed

to restrict a particular meaning; it also includes restrictions on the form of expression, if there is

an inextricable link between form and content. This is set out in Irwin Toy, supra:

- 34 - BCLRB No. B270/94

With regard to freedom of expression, if the government has aimed

to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. (p. 976)

In determining whether the purpose or the effect of the picketing provisions of the Code restrict

freedom of expression, we initially examine the definition of picketing contained in Section 1 of

the Code:

"picket" or "picketing" means attending at or near a person's place

of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to

(a) enter that place of business, operations or employment, (b) deal in or handle that person's products, or (c) do business with that person,

and a similar act at such a place that has an equivalent purpose

This definition of picketing clearly intends to infringe freedom of expression and has the effect of

infringing freedom of expression. We examine this in more detail in terms of the minimal

impairment test; at this point it is sufficient to point out several factors.

First, the government's legislative purpose is to restrict the content of expression by

singling out particular meanings that are not to be conveyed: there is an express prohibition that

a person shall not attempt to persuade another person from entering a particular business and

dealing with that business' products. Second, there is a complete prohibition on location:

persons are prohibited from attempting to persuade potential customers from doing business with

an employer by "attending at or near" that employer's place of business. Further, the activity of

picketing is intertwined with its content in that the restrictions placed on the activity (location) are

- 35 - BCLRB No. B270/94

inextricably connected with the right to convey the message.

In Irwin Toy, supra, the Supreme Court of Canada specifically mentioned that the activity

of leafleting is tied to its content. Chief Justice Dickson stated the following:

...Thus, for example, a rule against handing out pamphlets is a

restriction on a manner of expression and is "tied to content", even if that restriction purports to control litter. The rule aims to control access by others to a meaning being conveyed as well as to control the ability of the pamphleteer to convey a meaning. To restrict this form of expression, handing out pamphlets, entails restricting its content. (pp. 974-975)

The restrictions in the Code, therefore, are not "content neutral" . The legislative aim is to

prohibit the attempt to convey certain meanings; and, the effect of the restrictions on location -

"attending at or near" - are not simply time, place or manner restriction regulating leafleting.

Rather, they have the effect of denying leafleting as a form of freedom of expression. Therefore,

we conclude that the infringement has been established.

(ii) Is the Infringement of Section 2(b) Saved by Section 1 (Regina v. Oakes

Analysis)?

In Regina v. Oakes, supra, the Supreme Court of Canada established an analytical

framework that is to be employed in determining whether a law that infringes one of the

fundamental freedoms can be saved: that is, "demonstrably justified in a free and democratic

society".

The first step under this test is to establish that the impugned legislation addresses

"pressing and substantial concerns". Only a significant purpose or objective can justify limiting

or overriding a constitutionally protected right.

Second, if such an objective is established, the party relying on Section 1 must then show

that the means chosen to address this pressing and substantial concern are reasonably and

demonstrably justified. In other words, the means must be proportional to the objectives.

This proportionality test is broken down into three parts: first, are the means rationally

connected to the objective; second, do the means impair the right as little as possible; and, third,

- 36 - BCLRB No. B270/94

are the effects of the infringement proportional to the objective? Therefore, any statutory

infringement should not go beyond what is necessary to achieve the objective. A constitutional

right should not be infringed more than is necessary.

This framework has continually been reaffirmed by the Supreme Court of Canada. It is a

balancing test. This balancing test requires a conceptual and purposive approach, placing the

conflicting values in their factual and social context. A right may yield to another right, or to an

overriding public concern in one particular circumstance, but may not in another set of

circumstances. McLachlin, J. stated in Regina v. Keegstra, supra:

...As Wilson J. has pointed out in Edmonton Journal, this

judgment cannot be made in the abstract. Rather than speak of values as though they were Platonic ideals, the judge must situate the analysis in the facts of the particular case, weighing the different values represented in that context. Thus it cannot be said that freedom of expression will always prevail over the objective of individual dignity and social harmony, or vice versa. The result in a particular case will depend on weighing the significance of the infringement on freedom of expression represented by the law in question, against the importance of the countervailing objectives, the likelihood the law will achieve those objectives, and the proportionality of the scope of the law to those objectives. (p. 298)

The onus is on the party who seeks to rely on Section 1. Further, the evidentiary

standard is the balance of probability.

Finally, Section 1 states that the Charter guarantees the rights set out "subject only to

such reasonable limits prescribed by law". These words establish a requirement that any limit

imposed upon a constitutional right must be imbedded in the law and be articulated with sufficient

clarity and precision as to provide an "intelligible standard": Committee for Commonwealth of

Canada v. Canada, supra; Osborne v. Canada (1991), 82 D.L.R. (4th) 321 (S.C.C.). A

definition of the words "prescribed by law" was given by Le Dain, J. in R. v. Therens, [1985] 1

S.C.R. 613, reproduced in Committee for Commonwealth of Canada v. Canada, supra:

...The requirement that the limits be prescribed by law is chiefly

concerned with the distinction between a limit imposed by law and one that is arbitrary. The limit will be prescribed by law within the meaning of s.1 if it is expressly provided for by statute or

- 37 - BCLRB No. B270/94 regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements. The limit may also result from the application of a common law rule. (p. 136)

In essence, this requirement addresses the issues of vagueness and arbitrariness which go directly

to the rule of law.

In the circumstances of the case before us there is no issue as to whether the limits placed

on picketing are prescribed by law. The Code is a statute duly enacted by the British Columbia

Legislature and is, therefore, a limit prescribed by law.

1. Pressing and Substantial

The significance of this part of the test is to ensure that the government does not override

constitutionally protected rights with aims or purposes that are trivial. It is fair to say that this

part of the test is not an onerous one for the government to meet: Rocket v. Royal College of

Dental Surgeons of Ontario, supra; Corporation of the City of Peterborough v. Ramsden, supra.

There is no question that labour relations raises pressing and substantial issues in our

society. It involves social, political and economic issues that are of significance to both

individuals and society as a whole. Mr. Justice McIntyre in Reference re Public Service

Employee Relations Act, supra, stated the following with regard to the significance of labour

relations and labour law:

...Labour law, as we have seen, is a fundamentally important as

well as an extremely sensitive subject. It is based upon a political and economic compromise between organized labour - a very powerful socio-economic force - on the one hand, and the employers of labour - an equally powerful socio-economic force - on the other. The balance between the two forces is delicate and the public at large depends for its security and welfare upon the maintenance of that balance. ...Great changes - economic, social and industrial - are afoot, not only in Canada and in North America, but as well in other parts of the world. Changes in the Canadian national economy, the decline in resource-based as well as heavy industries, the changing patterns of international trade and

- 38 - BCLRB No. B270/94 industry, have resulted in great pressure to reassess the traditional approaches to economic and industrial questions, including questions of labour law and policy. (pp. 232 - 233)

The regulation of strikes and picketing is of course an essential part of any labour relations

scheme. McIntyre J. concluded in Dolphin Delivery Ltd., supra, that the regulation of picketing

is an issue that is of pressing and substantial concern to a free and democratic society:

...When the parties do exercise the right to disagree, picketing and

other forms of industrial conflict are likely to follow. The social cost is great, man-hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against the employer, it should not be permitted to harm others. (p. 189)

Therefore, we conclude that the picketing provisions in the Code address pressing and substantial

concerns of labour relations within the Province of British Columbia.

2. Rationally Connected

This test is also not a significant hurdle for the government to overcome. If the

government's measure can reasonably be said to further its aim or purpose, then this requirement

will be met. It has, in recent years, developed as a "minimal rationality" test: a rational person

would accept that the objectives of the legislation would be furthered to some degree by

employing the legislative means chosen. (It is, as suggested by Robin M. Eliott in "The Demise

of the Checking Function Under the Charter" (1991), 2 S.C.L.R. (2d) 94, analogous to the

American constitutional doctrine of "minimal rationality"). This characterization of the test can

be seen in the Supreme Court of Canada's decisions in Rocket, supra; Edmonton Journal, supra;

BCGEU, supra; Reference re Public Service Employee Relations Act, supra; Ramsden, supra;

and Irwin Toy, supra. The earlier use of this test established a higher standard which had been

referred to as the "tightness of fit" standard. It is fair to say that this "tightness of fit" test is

- 39 - BCLRB No. B270/94

more often employed under the minimal impairment test through concepts such as

underinclusiveness and overinclusiveness (Osborne, supra). We propose to do the same in

regard to the issue of overinclusiveness which is, in essence, the issue raised before this Board.

We conclude therefore that there is a strong and evident connection between the general

goal of regulating economic conflict and the specific statutory provisions chosen by the British

Columbia legislature to regulate picketing.

3. Minimal Impairment

The minimal impairment test has emerged as the most significant test under

proportionality and arguably under Section 1 as a whole. If the Court finds that the minimal

impairment test has been satisfied then it is most likely that the third requirement (the "effect"

requirement) will also have been met. Conversely, if the Government has failed to meet the

minimal impairment test, then it is most likely that it will also be held not to have met this third

requirement.

In Irwin Toy, supra, Chief Justice Dickson stated:

...What will be "as little as possible" will of course vary depending

on the government objective and on the means available to achieve it. (p. 993)

In discussing the minimal impairment requirement the Court in Irwin Toy went on to

distinguish those circumstances in which the legislature is "mediating between the claims of

competing groups" and those where the government is the "singular antagonist of the individual

whose right has been infringed" (p. 993-994). In the situation where government is acting as a

social arbiter between interests of different groups, or is attempting to mediate or strike a balance

between legitimate or competing social interests, the Courts will apply a more relaxed standard of

scrutiny. Conversely, where the issue is one of the state versus an individual's liberty, a more

stringent standard will be imposed to ensure that the government has applied the least drastic

measure.

The result is that the Courts are prepared to show greater deference to the legislature

where it is acting in the role of mediator because of the recognition that social and political

- 40 - BCLRB No. B270/94

matters are not capable of precision or certainty. The legislature must often attempt to deal with

an entire range of social, political and budgetary constraints. Individual legislators, and indeed

government as a whole, cannot be expected to arrive at an expert judgment in regard to every

social and economic issue that arises before it. La Forest, J. in McKinney v. Board of Governors

of the University of Guelph (1990), 76 D.L.R. 545 (S.C.C.), stated the following:

In assessing proportionality and particularly the issue

whether there has been a minimal impairment to a constitutionally guaranteed right, it must be remembered that we are concerned here with measures that attempt to strike a balance between the claims of legitimate but competing social values. In the case of broadly based social measures like these, where government seeks to mediate between competing groups, it is by no means easy to determine with precision where the balance is to be struck. ...

The approach taken to these cases has been marked by considerable flexibility having regard to the difficulty of the choices, their impact on different sectors of society and the inherent advantages in a democratic society of the legislature in assessing these matters. (p. 651)

The approach that the Court has taken since Irwin Toy, supra, is to assess whether the

government has "a reasonable basis" for concluding that it impaired the relevant right as little as

possible, given the government's pressing and substantial objective.

A further consideration as to when legislation may reasonably infringe on expressive

activity are "time and place and manner restrictions": Commonwealth, supra, at p. 118. As

stated, any such restrictions must be content neutral and must be only aimed at the physical

aspects of the expressive activity. Examples of such regulations are by-laws involving noise,

litter, access to a particular place, time restrictions, and so on. If such restrictions are uniformly

applied they are not seen as a serious infringement on freedom of expression.

A further issue as to the scope of legislation that may reasonably infringe expressive

activity is whether a statute has been drafted too broadly - whether the means are properly

tailored to "impair as little as possible" the citizen's right or freedom. Does the legislation "cast

its net too widely"? Is more expressive conduct infringed than can be justified by the objectives

of the legislation? Does the statutory line include conduct that the constitutional line protects?

This is known as the doctrine of overbreadth and it has been applied in the more recent Supreme

- 41 - BCLRB No. B270/94

Court of Canada decisions: Commonwealth, supra; Rocket, supra; Osborne, supra; Ramsden,

supra. It has also recently been applied in British Columbia: Regina v. Wilson (30 November

1992) Fernie 01310 (B.C.S.C.); app. dismissed (23 November 1993) Vancouver CA016538

(C.A.).

The doctrine of overbreadth or over inclusiveness may also overlap with the concept of

vagueness. Although overbreadth and vagueness are distinct concepts, a law which is vague or

too general both in wording and intent, may also, as a result, be overbroad. Both overbreadth

and vagueness are rooted in the fundamental principle of the rule of law: a law which is

overinclusive and vague is one which is arbitrary. Thus, a law which is overbroad or vague will

be given the greatest scrutiny. As McLachlin J. stated in Commonwealth, supra, after

commenting on legislative deference:

...What must be guarded against are the evils of vagueness and

overbreadth, the broad sweep that catches more conduct than is justified by the government's objective. (p. 138)

Finally, we are mindful of the Supreme Court of Canada's direction that in assessing the

balance to be struck under Section 1 both the specific factual context and the particular statutory

values are critical. As an example, Wilson J. stated in Edmonton Journal, supra, that in

applying the combined purposive and contextual approach former Chief Justice Dickson in his

dissent in Public Service, supra, asked himself the following question:

...what the purpose of freedom of association was in the context of

labour relations. Why did workers associate to form unions? What was the aim and object? (p. 583)

In the context of this appeal the questions which need to be examined are similar. What is the

purpose of freedom of expression in the context of labour relations? What are the aims and

objectives of the government's labour relations legislation? What are the various interests at

stake? What are the underlying values the Charter seeks to protect in freedom of expression in

the context of picketing? What are the underlying aims and objectives of government in

regulating picketing? In addressing these questions, and in balancing the respective interests and

values, we will examine the aims and purposes of the picketing provisions; the nature of primary

and secondary picketing and consumer boycotts; the interests of management, labour and the

- 42 - BCLRB No. B270/94

public; and the balancing of these various interests in the British Columbia labour relations

scheme in the context of the Charter's guarantee of freedom of expression.

However, in addressing these questions it is this Board's view that the more relaxed

standard of scrutiny articulated in Irwin Toys, supra, applies to statutory provisions concerning

labour relations. The regulation of picketing clearly falls within the category of legislation that

attempts to balance the competing rights of labour and management and the public. This more

relaxed standard results in this Board showing greater deference to the Legislature in reviewing

the Code in light of the Charter of Rights and Freedoms.

We will begin by returning to the analysis of picketing.

a. Principles Underlying Permissible & Impermissible Picketing

As we have outlined earlier in this decision, the rights of a trade union to picket have,

over the last twenty years, been increasingly narrowed in British Columbia. Picketing may only

take place at the location of the employer where the striking or locked out employees perform

work; and it is the distinction between the "primary" site and "secondary" site that has driven the

legislative amendments concerning picketing between 1974 and 1994 and has also formed the

essential rationale for the picketing provisions as a whole.

The purpose of the picketing provisions is found specifically at Sections 2(c), (d) and (e)

of the Code: to protect the public interest and minimize the effects of labour disputes on third

parties. The policy rationale for this is clear: a third party has no ability to settle the labour

dispute. Further, the economic impact of a particular labour dispute can potentially "ripple out",

affecting many innocent third parties. The intention of limiting secondary picketing has the

reasonable goal of limiting the impact of a particular dispute to the parties themselves. Such a

limitation as McIntyre J. stated in Dolphin Delivery, supra, is a reasonable limit:

...It is my opinion that a limitation on secondary picketing against a

third party, that is, a non-ally, would be reasonable in the facts of this case. I would therefore conclude that the injunction "is a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society". (p. 190)

The distinction between primary and secondary is therefore a reasonable demarcation

- 43 - BCLRB No. B270/94

between permissible and impermissible picketing. As Professor Joseph Weiler stated in "The

Regulation of Strikes and Picketing Under the Charter", supra:

On the contrary, this distinction between primary and secondary

picketing replicates the pattern of legal regulation of picketing in a host of democratic jurisdictions within North America and around the world where picketing is considered to be an active, important device in collective bargaining. Thus, in all Canadian provinces, the United States, the United Kingdom, New Zealand and Australia, there are either statutory or common law prohibitions against secondary picketing. (p. 240)

However, as Weiler also noted, the real difficulty lays in trying to identify what is meant by

primary and secondary. He stated as follows:

And so this task has occupied scholars, practitioners, judges and

legislators for decades. Legal regulation of ally picketing, common situs picketing, picketing of secondary sites or other places of business of the same employer or "related employers" has entered the landscape of labour relations in Canada. The issue for constitutional laws is how to apply the Charter in the difficult conceptual myriad situations that occupy the grey area of picketing regulation. (p. 240)

Prior to the Charter, the "high water" mark of public policy prohibiting secondary

picketing was found in Hersees of Woodstock v. Goldstein (1963), 2 O.R. 81 (C.A.), in which

peaceful secondary picketing was declared "illegal per se" (p. 88). Aylesworth J.A. stated that

even if secondary picketing was carried on peacefully for the purpose of communicating

information such right as there might be must "give way to appellent's [businesses] right to

trade" (p. 86).

The Hersees decision has been the subject of "comprehensive and searching criticism":

H.W. Arthurs, "Case Comment" (1963), 41 Can. Bar Review 573; David M. Beatty,

"Secondary Boycotts: Functional Analysis" (1974) 52 Can. Bar Review 388. This criticism

includes the following: the Court failed to show an understanding of the distinction between

permissible and impermissible secondary effects of picketing; it made no distinction between the

act of picketing and that of a secondary boycott; and finally, the Court showed little sympathy for

free speech concerns and the decision reflected more a "social premise" or a certain sort of

"social sensibility" rather than an informed legal analysis: Arthurs, "Case Comment" at pp. 580-

- 44 - BCLRB No. B270/94

584.

In attempting to understand the distinction between what is primary and permissible, and

what is secondary and impermissible, it is necessary to understand what secondary effects

(resulting from a primary dispute) are currently permitted by the legislation. In other words, it is

the consequences or effects of a primary dispute on a secondary employer that identify for us the

nature of economic pressures that the legislature has condoned. In examining the secondary

effects which arise from primary labour disputes we will refer to and rely upon the analysis of

David Beatty in "Secondary Boycotts: Functional Analysis", supra. (This article was first

referred to in MacMillan Bloedel Packaging Ltd., BCLRB No. 62/75, [1976] 1 Can LRBR 90,

and later, passages from that decision citing the same article were quoted in Ocean Construction

Supplies Ltd., BCLRB No. 263/85, (1985), 11 CLRBR (NS) 101). This analysis has also been

adopted in Carrothers, Palmer and Rayner, Collective Bargaining Law in Canada, supra. A

similar analysis in the United States can be found in Howard Lesnick, "The Gravamen of the

Secondary Boycott", (December 1962) Columbia Law Review Vol. 62 No. 8 (p. 1363).

Fundamental to all statutory schemes which incorporate the right to strike and picket is

that a lawful strike will result in many secondary employers who do business with the struck

employer being directly affected. The struck employer's inability to continue production, either

at current levels, or at all, affects the ability of wholesalers and retailers to replenish their stock

of the struck goods. As a result, the consumers' ability to purchase such struck goods is also

affected. All legislatures have permitted these secondary effects where the secondary employer is

functionally integrated (that is, dependently related) to the primary's business (Beatty, p. 391).

A simple example is the manufacturing of clothing: if the union conducts a lawful strike

and production ceases, both the wholesaler and retailer will no longer be able to stock that

company's struck product and the consumer will be unable to purchase such products. The

extension of these secondary consequences flowing from an industrial dispute, therefore, are not

only not "illegal per se" but are indeed permitted. In the British Columbia Code this immunity

from legal liability for secondary effects that flow from lawful strikes is found in Section 66 of

the Code: 66. No action or proceeding may be brought for (a)petty trespass to land to which a member of the public ordinarily has

access, (b)interference with contractual relations, or (c)interference with the trade, business or employment of another person

- 45 - BCLRB No. B270/94 resulting in a reduction in trade or business, impairment of business opportunity or other economic loss

arising out of strikes, lockouts or picketing permitted under this Code or attempts to persuade employees to join a trade union made at or near but outside entrances and exits to an employer's workplace.

As Beatty stated the determination of the Ontario Court of Appeal in Hersees, supra, that

secondary picketing is illegal per se "obfuscates the extent to which the legislature in fact

intended to shelter third parties" (p. 392). This obfuscation is the result of a focus on the

physical location of the picketing (whether the site is different than the site of the lawful strike).

Rather, in order to understand the distinction between permissible and impermissible secondary

pressures, the standard that should apply is whether the union has exerted a pressure different

from that which the secondary would have otherwise experienced from the consequence or effect

of a lawful strike.

We have outlined secondary effects that are clearly permissible; we will also outline

secondary effects that are clearly impermissible. Where a neutral third party (who may stock the

struck good) is faced with a picket line whose effect is to prevent its own employees from

crossing that picket line an order will be issued by this Board restraining the picketing. If the

employees crossed the picket line but the picketing affected the delivery of supplies to the

secondary, thus breaching and interfering with the secondary's contractual relations, this

picketing would also be enjoined. By entangling the secondary employer and its contractual

relations in the primary dispute, the secondary is affected not only in its ability to deal with the

struck goods but, more importantly, in its ability to conduct its entire business. That secondary

effect is more than what is legitimately protected either under Section 66 or under Section 65(3).

It is this "excess harm" or "spill-over effect" that can cause serious economic harm to a

secondary and is not only limited under the Code, but done so expeditiously (the Board has a

policy of generally hearing such matters within 24 hours).

Therefore, the issue is not simply one of location or place, but of identifying the nature

and extent of permissible secondary pressures which may be employed by a trade union. It is in

this context that we must examine a consumer boycott. It should be recalled that one of the

criticisms which Arthurs had of Hersees, supra, was that it failed to make a distinction between a

trade union's use of a picket line and a consumer boycott. This distinction is also made in

Carruthers, Palmer and Rayner; in Adams; and Beatty, all supra. The issue, then, is where does

- 46 - BCLRB No. B270/94

a consumer boycott conducted through leafleting fit within this functional analysis of secondary

economic pressures? In what form would it be permissible; and in what form would it be

impermissible?

It is evident that in order to make a judgment as to legitimacy or illegitimacy of a

particular consumer boycott one must examine both the manner in which the boycott is being

conducted and the effect it produces. Clearly, if a "consumer boycott" results in secondary

employees not reporting to work and/or suppliers not being able to complete their contractual

obligations, this amounts to unlawful picketing and the conduct is enjoined. As stated earlier in

this decision, none of the parties to these proceedings take issue with this limitation. However, if

a consumer boycott were limited to a particular struck good or service, with the result that the

retailer was unable to sell such goods or services because the consumer chose not to purchase

them, then the nature of the secondary effect resulting from the consumer boycott is the same as

that which results from a lawful strike.

For instance, if a strike results in the complete cessation of production, or if for whatever

reason an employer voluntary ceases production, the secondary employer and consumer must

carry on without the availability of the struck goods. If management continues production in part

or in full (Section 68 prevents the use of replacement workers) that will be a circumstance in

which a consumer boycott may arise. The union, in prosecuting its strike, seeks to gain the full

effect of the strike - that is, the cessation of both the production and the sale of the struck goods.

In the first instance, the union is entitled to attempt (through a lawful strike and picketing) to

disrupt the supply of goods and in the second case of a consumer boycott, to attempt to interfere

with the demand or sale of the goods.

In either case the nature and extent of the secondary pressure may be identical, and both

are consistent with the overall balance contemplated in Section 65 and 66 of the Code. The

secondary pressure employed by the union will be no greater than that which it is entitled to exert

through a lawful strike. This was expressed by Beatty, supra in the following terms:

...So long as the kind of economic or social pressure adopted by

the union is not qualitatively dissimilar from that associated with the primary strike or primary strike picket line there can be no rational, economic, philosophical or legal basis which would allow courts to differentiate between them. Indeed and to the contrary, to do otherwise is to destroy the precise and delicate economic

- 47 - BCLRB No. B270/94 balance created by our regime of collective bargaining. This is so because it is often the case that the union which turns to the technique of consumer picketing does so because of its inability to marshal an effective legal strike to occasion the identical economic consequences. To allow such peaceful secondary site appeals admittedly does extend the physical scope and the visibility of the dispute beyond the primary site. Philosophically such an extension could be described either as an undue intrusion upon the public's sensibilities or alternatively as a cementing of the right to advise and be advised. More critically however is the recognition that such an extension does not aggravate the economic consequences associated with the dispute. To repeat, there is no logical basis by which these various forms of persuasion can be rationally distinguished. (Parenthetically, and in the interests of symmetry it should be noted that whether the union elects a consumer boycott, a primary picket line or the employer voluntarily ceases production, the effect on him (the primary) is also precisely the same, an inability to produce or merchandise his product or both. Assuming the consequences are lawful, it should be irrelevant, and for the same reasons, whether the union was able to achieve this end by means of appeals to the public, distributors, suppliers, or replacement employees. Again the assumption must be made that with each of these appeals, wherever situate, that the means employed are peaceful and not otherwise tainted with nominate torts or crimes. (p. 395)

The union will resort to a consumer boycott when its strike has not been successful in

ceasing either the production and/or sale of the struck goods or services. The union appeals to

potential consumers to not purchase the struck goods. The appeal affects the demand for goods

and the secondary will either be persuaded or not persuaded to cease dealing in the struck

product. If the boycott activity is peaceful, and no appeals are made nor is the effect of the

boycott to induce employees to break contracts of employment or suppliers to breach

their contracts (and there are no criminal or tortious acts), the union commits no unlawful act

because all persons are entitled to make consumer purchases on whatever grounds they desire.

Finally, it must be remembered that the legitimate secondary effects of a strike in a major

industry can have far more serious economic consequences than a boycott of a particular struck

good. A strike in a major industry such as forestry or transportation can affect the employment

of many citizens in towns across this province and the businesses of many employers throughout

the province. A boycott of a particular struck good may pale in comparison.

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How then does this characterization of the nature and extent of permissible secondary

pressure fit within the current legislative provisions in the British Columbia Code? We will

examine three sections of the Code: Section 65 (picketing), Section 70 (regulation of union

security provisions) and Section 64 (communication of information).

b. B.C. Labour Relations Code

We will begin first with the picketing provisions. Section 65(3) defines the primary site.

We have dealt with the definition of a primary site. Section 65(1), (4), (6) and (7) deal with who

is an ally, common site picketing, and "separate and distinct operations". We will outline these

sections more fully.

An ally is anyone who assists the employer in resisting the strike. The policy rationale

that supports the doctrine of ally picketing is that the ally has made itself part of the primary

employer's operations. In effect, the secondary employer deliberately adds to the economic

strength of the primary employer so that the primary is better able to resist the strike.

Notwithstanding that the ally is a secondary employer, physically separated from the primary, it

has aligned itself with the primary. Therefore, the union is entitled to picket this "secondary".

This is consistent with the "primary pressure" which the union is legitimately able to exercise

under the Code. The secondary employer is now performing the struck work or otherwise

assisting the primary employer.

Conversely, the policy rationale behind restricting common site picketing (the presence of

2 or more employers at one location; eg. an office building) is in furtherance of the legislative

goal of insulating innocent third parties. In cases where a secondary employer simply occupies

the same physical location as the struck employer, and has no involvement of any kind in the

labour dispute, the common site provision (Section 65(4)) insulates this employer from the

primary dispute. The union's right to picket the primary site will be restricted so as not to affect

the secondary employer. Once again this is consistent with the nature and extent of legitimate

primary and secondary pressures - the protection of innocent third parties.

The third principal area of permissible and impermissible picketing is the "separate and

distinct operations" principle contained in Section 65(7). Simply put, the divisions or parts of a

corporation that operate in a separate and distinct manner are to be treated as separate employers.

What is relevant, as the provision states, is the operations of the company. It is not sufficient

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that the companies be simply under the same common ownership and control. It is no longer

permissible to picket simply to strike at the total economic strength of the primary employer.

Applied as a blanket policy the principle of common ownership and control would allow a trade

union to picket almost any corporate entity or sub-division for which the primary had effective

financial control.

The statutory concept of "separate and distinct" first arose in the common law where the

courts had to determine picketing rights at secondary locations of the same employer. In Canada,

it arose under the issue of common control and ownership, and in the United States it arose under

a branch of the ally doctrine. (A review of common law picketing can be found in Carruthers,

Palmer and Rayner, Collective Bargaining Law in Canada, supra; H.W. Arthurs, "Tort Liability

for Strikes in Canada: Some Problems of Judicial Workmanship" (1960) 38 Canadian Bar

Review 346; and "Secondary Boycott: Functional Analysis", David Beatty, supra.) Beatty,

supra, in commenting upon Aristocratic Restaurants Ltd., [1951] S.C.R. 762, stated that this

decision is sometimes cited for the ability of a trade union to strike at the "total economic

strength" of a primary employer -- a conclusion which is implied in the dictum. This, Beatty

stated, is simply "too pervasive":

...Applied literally, such a doctrine of common ownership and

control will allow a union to extend the arena of industrial conflict to any corporate entity or sub-division thereof for which the primary had effective financial control. (p. 411)

He went on to say:

...Specifically the union should be permitted to picket the other

restaurants only if and to the extent that they are functionally connected to or integrated with the primary restaurant.

We adopt this approach. Other operations of the struck employer will not be "separate and

distinct" if they are "functionally integrated" to the struck employer. Prior Board jurisprudence

has discussed the concept of "functional integration". Such integration would not have to include

the intermingling or interchange of employees (for that would make it a place of struck work) but

would include an integrated management structure that had authority over the day to day

operations of the business (i.e. production, personnel decisions, etc.); or authority over labour

relations or collective bargaining decisions; or the use of common facilities, services, or

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machinery; or the production of the same or similar products. One or all of these may be

sufficient to meet the test of functional integration with each case being judged on its own merits

against Board jurisprudence. (Ocean Construction Supplies, supra; Elwood Properties Ltd., IRC

No. C135/89, (1989), 2 CLRBR (NS) 161.) Once again, the presence or absence of functional

integration is consistent with legitimate or illegitimate use of primary and secondary pressures.

Before leaving the current picketing provisions we should note the Sub-Committee of

Special Advisors' Report. There was general agreement amongst the Sub-Committee that

picketing should, as a general rule, be permitted only at the location where the employee works.

There was also agreement that the picketing of secondary locations of employers should be

"enjoined in most cases" (p. 43). Further, there was agreement that a neutral employer who

shares a common site of the struck or locked out operation of the primary ought to be insulated

from the effects of picketing.

However, there were two disagreements: the manner in which the Board ought to

exercise its discretion to insulate neutral employers at common sites, and whether two divisions

of an employer at the same location should be treated as separate employers. Finally, two of the

three members of the Sub-Committee stated that if the replacement worker provisions were not

enacted the right to picket should extend to allow employees the right to picket at "secondary"

locations of a struck employer when that employer continues to operate during a strike or

lockout.

In conclusion, the ally, common site and "separate and distinct" picketing provisions

reflect the basic principle of permitting economic pressure against the primary employer while

ensuring that the secondary employer is insulated from such pressure.

A second provision of the Code that seeks to balance the interests of trade unions,

employers and neutral third parties is Section 70:

70. (1) If, on the complaint by an interested person, the

board is satisfied that a declaration by or on behalf of a trade union or employer, or an agreement or combination between one or more employers and one or more trade unions, or 2 or more trade unions, is substantially affecting trade and commerce in a commodity or service or is substantially affecting the business, operations or purposes of the complainant, the board may, in its discretion, issue a declaratory opinion that

(a) the declaration, agreement or combination is void for all

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(b) the declaration, agreement or combination is unenforceable in specified circumstances or for a specified period of time, or

(c) the declaration, agreement or combination is valid and enforceable.

(2) When the board issues a declaratory opinion under subsection (1) (a) or (b), it may make orders or take steps it considers advisable to ensure that persons affected by the declaration, agreement or combination are informed of the terms of the declaratory opinion.

(3) The board, in determining whether to issue a declaratory opinion under subsection (1), shall consider

(a) the extent to which the employment, business, operations, purposes or property of the complainant have been affected by the declaration, agreement or combination, and

(b) the intent and purpose of this Part and the necessity for reasonable protection and advancement of a trade union or employer

The leading case concerning Section 70 (formerly Section 90) is R.M. Hardy, BCLRB

No. 41/77, [1977] 2 Can LRBR 357 in which the Board outlined not only the intention and

purpose of Section 70 but also the manner in which it will regulate union security provisions

agreed to by unions and employers. Contractual provisions such as non-affiliation clauses,

subcontracting clauses, and the right to respect hot declarations have long been contained in

collective agreements. These union security provisions have three basic purposes: first, they

seek to both preserve and obtain work; second, they attempt to achieve and preserve common

terms and conditions of employment; and, third, they provide assistance to other trade unions and

their members.

A subcontracting clause requires that any work which is contracted out to another

employer, a secondary employer, must be done on the same terms and conditions as would have

been done under the current collective agreement with the primary employer. A non-affiliation

clause (most often seen in the construction industry) allows a union member not to work

alongside a non-union or non-affiliated employee. A hot declaration, which is usually imposed

by the main federation of labour, and not a particular union, requests or encourages employees to

refuse to handle goods declared "unfair" or "hot" - for example, a struck good.

Notwithstanding that these clauses may affect the trade and commerce of a secondary business, if

a union can establish that the exercise of a specific union security provision is in furtherance of

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the reasonable protection and advancement of that union, the clause has been held to be lawful.

Early common law cases from the House of Lords, upholding as lawful such clauses, included

Mogol Steamship Company v. McGregor, Gow and Company et al [1891-94] ALL E.R. 263;

Allan v. Flood [1895-99] ALL E.R. 52 and Crofter Hand Woven Harris Tweed Co. Ltd. v.

Veitch [1942] 1 ALL E.R. 142. The Supreme Court of Canada upheld the exercise of non-

affiliation clauses in Newall & Barker, [1952] D.L.R. 289. The B.C. Court of Appeal in

Canadian Pacific Railway Company et. al. v. Teamsters Local Union No. 213 et al, [1975] 5

W.W.R. 329, found all three clauses not to be contrary to public policy. The B.C. Court of

Appeal in Pacific Western Airlines v. B.C. Federation of Labour (1986), 70 B.C.L.R. 108, more

recently reaffirmed hot declarations to be lawful.

Of the three contractual provisions, the right to respect the hot declaration is closest to a

consumer boycott. In addition to allowing an employee not to handle struck goods (in the

absence of such a specific collective agreement provision the employee would in fact be required

to handle such goods, and if refused, could be justifiably disciplined), the hot declaration appeals

to all consumers not to purchase the struck good. As stated by Beatty, a hot declaration

accomplishes "a priori" (in a collective agreement reached in advance or in anticipation of any

future labour disputes) what a full strike and the primary picket line does "ex post facto",

preventing the actual distribution of the struck goods (p. 404). A lawful hot declaration is

therefore consistent with the statute's attempt to balance under Section 70 the respective rights of

the parties in a collective bargaining dispute. In other words, the current legal regime (Section

70), and the common law, both allow secondary pressures identical to a consumer boycott. A

secondary employer, in choosing to trade in the struck good (which it is entitled to do) financially

assists the primary in resisting the strike. The rationale in allowing the hot declaration is that the

union is entitled to bring, during a lawful strike, secondary pressure on the struck good. To do

otherwise, would be to simply protect the struck employer and the struck goods from the lawful

effects of the strike.

Finally, it should be noted that the previous Act had two provisions, Sections 4.1 and 9.1,

which restricted the use of these union security provisions. These two sections were unique in

Canada in their attempt to restrict freely negotiated collective agreement provisions which have

had a long history in labour relations. They were repealed in the current statute. One member of

the Sub-Committee of Special Advisors opposed their repeal. However, it is noteworthy that this

Sub-Committee member did exempt hot declarations in relation to struck goods from his

proposed revisions of Sections 4.1 and 9.1 (Appendix 2 of the Sub-Committee's Report).

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The third provision of the statute that we will examine returns us to the relationship

between freedom of expression and picketing. Section 64 of the Code allows a person to

communicate information and express support and sympathy in matters that relate to terms and

conditions of employment so long as it does not constitute picketing. Section 64 reads as

follows:

64. A trade union or other person may, at any time and in a

manner that does not constitute picketing as defined in this Code, communicate information to a person, or publicly express sympathy or support for a person, as to matters or things affecting or relating to terms or conditions of employment or work done or to be done by that person

In an early decision of the Labour Relations Board Parkland Developments Corporation Ltd.,

BCLRB No. 6/75, [1975] 1 CLRBR 339, Paul Weiler traced the history of Section 64. He cited

the Supreme Court of Canada decision Aristocratic Restaurants, supra, stating that Section 3 of

what was then the Trade-unions Act, R.S.B.C. 1948, c.342, protected unions from injunctions

"for communicating ... facts" or "endeavouring to persuade by fair or reasonable argument" (p.

344). The trade union in that case was certified to some of the Aristocratic Restaurants but not to

others. During a lawful labour dispute it picketed the non-union restaurants. Section 3 of the

Trade-unions Act read as follows: 3. No such trade-union or association shall be enjoined, nor shall

any officer, member, agent, or servant of such trade-union or association or any other person be enjoined, nor shall it or its funds or any such officer, member, agent, servant, or other person be made liable in damages for communicating to any workman, artisan, labourer, employee, or person facts respecting employment or hiring by or with any employer, producer, or consumer or distributor of the products of labour or the purchase of such products, or for persuading or endeavouring to persuade by fair or reasonable argument, without unlawful threats, intimidation, or other unlawful acts, such last-named workman, artisan, labourer, employee, or person, at the expiration of any existing contract, not to renew the same with or to refuse to become the employee or customer of any such employer, producer, consumer or distributer of the products of labour.

This provision was subsequently amended by the British Columbia legislature in 1959 to prohibit

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precisely the peaceful picketing allowed by the Supreme Court of Canada in Aristocratic

Restaurants, supra. The new provision did not specifically state or use the word "picketing" but

instead prohibited all forms of persuasion by trade unions except at the struck employer's place

of business. As is immediately apparent, this 1959 provision now forms the basis upon which

the current definition of picketing is based. It read as follows:

3.(1) Where there is a strike that is not illegal under the Labour

Relations Act or a lockout, a trade-union, members of which are on strike or locked out, and anyone authorized by the trade-union may, at the employer's place of business, operations, or employment, and without acts that are otherwise unlawful, persuade or endeavour to persuade anyone not to

(a) enter the employer's place of business, operations, or employment; or

(b) deal in or handle the products of the employer; or (c) do business with the employer. (2) Except as provided in subsection (1), no trade-union or other

person shall persuade or endeavour to persuade anyone not to (a) enter an employer's place of business, operations, or

employment; or (b) deal in or handle the products of any person; or (c) do business with any person.

The Board in Parkland, supra, went on to review the court decisions which were subsequently

rendered. The Court in Koss v. Konn (1961), 30 D.L.R. (2d) 242 (B.C.C.A.), stated that the

provisions restricting peaceful picketing were valid in relation to property and civil rights,

notwithstanding the limitations they placed upon free speech. As Adams stated in Canadian

Labour Law (2nd ed) (Aurora: Canada Law Book Inc., 1994), the effect of this decision "had

much the same effect as the Hersees, supra, decision in Ontario" (paragraph 11.430) - secondary

pressure was "illegal per se". In Sonoco Ltd. v. O'Neal et al (1970), 73 W.W.R. 458

(B.C.C.A.), the Court found that a trade union violated Section 3 of the Trade-unions Act when,

during the course of a lawful strike, it had written other companies asking them not to use the

struck products of Sonoco. The Board in Parkland, supra, also notes that the 1973 unreported

B.C. Court of Appeal decision Shoppers' Drug Mart v. Ray Haynes held that a press release

issued by the B.C. Federation of Labour which declared the products of Shoppers' Drug Mart

"hot" violated the same Section 3.

The 1974 Labour Code reversed the outcome of cases such as Sonoco, Shoppers' Drug

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Mart, and Koss ,in that it allowed trade unions to publish letters, issue press releases, take out

newspaper advertisements, billboards, etc. in order to publicize labour disputes and attempt to

gain public sympathy for those disputes. This new protection was contained in what is now

Section 64.

However, the Board in Parkland, supra, found that any activity that involved "attending"

at a secondary location, notwithstanding that this activity attempted to communicate information

about a labour dispute, would not fall within the protection of what is now Section 64. Indeed, it

would be enjoined as picketing. The basic rationale underlying this view was that picketing was

primarily or predominantly a "signal":

...The reason is that, realistically, picketing at a work site is much

more than communication of information; it is a signal to members of a union to stop working. (p. 347)

Parkland and of course the Court decisions it reviewed all pre-date the Charter. Adams,

supra, after reviewing some of the above British Columbia decisions (at paragraph 11.440) drew

the following conclusion:

...The free speech component of picketing has to be examined

now, however, in light of the Canadian Charter of Rights and Freedoms.

Similarly, Carrothers, Palmer, and Rayner in Collective Bargaining Law in Canada, supra, came

to a similar conclusion:

...But as things stand, totally peaceful consumer picketing, directed

at the struck product only, represents an exercise of freedom of expression by workers. One may hope that an appropriate case will soon come before the court so that the rationale of Hersees may be re-examined.

(p. 720; emphasis added)

Therefore, the definition of picketing, and the policy underlying Section 64, which is

dependent upon the definition of picketing, predate both the Charter and the Supreme Court of

Canada's interpretation of freedom of expression: Dolphin Delivery, supra; Ford, supra; Irwin

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Toy, supra; Edmonton Journal, supra; Rocket, supra; Keegstra, supra and Ramsden, supra;

Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Manitoba), supra.

The right to disseminate information concerning a labour dispute now clearly falls within

the area of discussion that is protected by the Constitution. Section 64 is on its face consistent

with this. However, Section 64 is expressly limited by the definition of picketing. As we have

seen, this definition is, as a matter of policy, tied to the characterization of picketing as solely a

"signal". Indeed, picketing has even been described in more pejorative terms such as

"Pavlovian": Reconcilable Differences, supra at p. 79. This requires additional comment.

Despite the fact that an employee's reaction to a picket line is to some extent

preconditioned, either as a result of earlier educational experiences, or the more direct experience

of having been on a picket line during a strike, it is unfair to characterize it as "Pavlovian". This

Board acknowledges the signal or trigger effect of a picket line and incorporates this aspect of

picketing as part of its policy in regulating picketing. However, the same kind of trigger or

signal effect is present in other areas of free expression such as commercial speech (advertising)

or a political speech (campaign slogans), both of which are designed through the use of

advertising or campaign slogans to persuade an individual to purchase a product or to vote in a

particular manner. The free speech elements of these economic or political activities incorporate

all human motives from self interest to idealism. However, to describe them all as simply

"Pavlovian" does a great disservice to our economic and political values. The "signal" effect of

picketing gives justification for regulating the conduct of it, but it does not give grounds for

eliminating free expression.

To this point we have examined the "illegality per se" doctrine in relation to secondary

pressures and the notion that a picket line is nothing more than a "signal". We have reviewed

the Supreme Court of Canada's rejection of that view and its incorporation of the values of

freedom of expression to picketing. We have reviewed how collective bargaining is a

fundamental concern to Canadian society and to our democratic values. We have reviewed the

parameters of legitimate and illegitimate secondary pressures in the context of the Code - the fact

that the legislation seeks not to insulate "third parties" from secondary effects where they are

functionally integrated to the primary dispute, but seeks to restrict secondary effects that go

beyond the parameters of legitimate primary pressures (spillover effect). This has involved a

review of the overall balance that the Code (sections 65, 70 and 64) attempts to achieve between

the parties with regard to legitimate and illegitimate secondary pressures that result from lawful

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primary disputes. We will now attempt to pull these factors together in the framework of the

Charter's guarantee of freedom of expression.

We reproduce once again the definition of picketing:

"picket" or "picketing" means attending at or near a person's place

of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to

(a) enter that place of business, operations or employment, (b) deal in or handle that person's products, or (c) do business with that person, and a similar act at such a place that has an equivalent purpose

There are three things to note in regard to this definition. The first, as we have stated, is

that it is not content-neutral. A person is specifically prohibited from attempting to persuade

someone else not to enter a particular business. The second is that the prohibition is not merely a

restriction on a certain kind of physical activity; ie. "attending". We are reminded in this regard

of the comments in Irwin Toy, supra, and Commonwealth, supra, in which content and form are

inextricably connected:

...Thus, for example, a rule against handing out pamphlets is a

restriction on a manner of expression and is "tied to content", even if that restriction purports to control litter. The rule aims to control access by others to a meaning being conveyed as well as to control the ability of the pamphleteer to convey a meaning. To restrict this form of expression, handing out pamphlets, entails restricting its content. (pp. 974-975)

Thirdly, and connected to the second, the prohibition is not simply a time, place or manner

restriction - in this case "a place" or location restriction. The effect of this statutory prohibition is

to prevent anyone "attending" at the premises of any other employer, other than the primary

employer, for the purpose of a consumer boycott directed at that location. The result is that the

striking employees have no opportunity to directly communicate with customers who may be

purchasing struck goods at the secondary's place of business.

The ability to leaflet and handbill, to give speeches and directly canvass consumers, is a

long-standing and traditional form of freedom of expression. It is inexpensive and may be the

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only form of expression to which many individuals or groups have access in order to influence

members of the public. In the facts of this case many of the activities took place at stores located

in shopping malls which have been characterized as the equivalent forum to the public markets or

main streets of the past: Commonwealth, supra. Indeed L'Heureux-Dube, J. commented on this

particular form of freedom of expression in Commonwealth, :

If members of the public had no right whatsoever to

distribute leaflets or engage in other expressive activity on government owned property (except with permission), then there would be little if any opportunity to exercise their rights of freedom of expression. Only those with enough wealth to own land or mass media facilities (whose ownership is largely a concentrated), would be able to engage in free expression. This would subvert achievement of the Charter's basic purpose as identified by this Court, ie. the free exchange of ideas, open debate at public affairs, effective working of democratic institutions and the pursuit of knowledge and truth. (p. 103)

Further, "attending" at a specific location to prosecute a consumer boycott has been a

traditional right enjoyed by many non-labour groups including political, social, religious and

economic interest groups. Such methods were employed by civil rights groups to address human

rights and civil liberties; by many different groups of citizens (especially new Canadians) to

address the contravention of human rights in various countries around the world, including

consumer and economic boycotts; by individuals generally, and women in particular, in regard to

discrimination and violence; by religious groups to proselytize and defend religious beliefs; and

by many citizens to protest war and nuclear arms. It is clear, therefore, that in some

circumstances, what has been a fundamental freedom for many Canadian citizens has been made

unlawful for trade unions and their members.

The final point concerning the definition of picketing is its prohibition in regard to

persuasion. The shorter Oxford English Dictionary defines the word "persuade" as follows:

...to seek to induce (a person) to (or from) a belief, a course of

action...

For a statute to prohibit an individual's right to "persuade" certainly goes to the basic core values

underlying freedom of expression. Indeed, it forms the widest possible prohibition with regard

to freedom of expression. The whole purpose of picketing or a consumer boycott is, in fact, to

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persuade, to convince someone not to purchase a particular good or do business with a particular

employer. It is, therefore, a complete denial of that particular freedom.

It is clear to this Board that picketing is both a signal and the exercise of freedom of

expression. Because it is an exercise of freedom of expression it deserves constitutional

protection; and because it is a signal it needs to be regulated and restricted. What distinguishes a

non-labour picket line or boycott from a labour boycott is of course this signal effect: other trade

union members respect the picket line and thus impose upon a secondary employer excessive

economic harm - greater harm than simply the economic loss related to the struck goods.

Underlying the protection of the secondary employer from this excess harm is the social

view that the individual has the "right to trade": to conduct their business and contractual

relationships without interference from a third party. That view gains added strength when a

labour dispute spills over to the secondary employer who has no power to settle that dispute. It is

that view which underlies the Canadian Courts frequent resort to the "classic English trilogy -

Mogul, Quinn & Sorrel" - as authority for the existence of the right to trade (H.W. Arthur;

"Tort Liability for Strikes in Canada: Some Problems of Judicial Workmanship", supra at 346).

It is this same view which clearly underlies both public and legislative sentiment in regard to the

formulation of the current picketing provisions. This Board affirms and continues to affirm the

long-standing policy in regard to an employer's right to trade and the need to regulate picketing

in regard to the "spillover" effect that results from labour disputes.

However, once again as Arthurs has noted in the Canadian Bar Review "Case Comment",

supra, the difficulty with the "illegality per se" doctrine is its failure to distinguish between

picketing and consumer boycotting, and thus its failure to recognize freedom of expression:

...The Hersees judgments do not appear to draw a line between the

act of picketing and that of boycotting and may conceivably be read as forbidding both. (p. 582-583)

A consumer boycott in a labour dispute involves both the conveying of a particular message (the

facts of the dispute) and a plea that attempts to persuade a member of the public not to do

business or handle goods of the primary employer. The appeal is to a person's belief or values

which may ultimately influence their decision to purchase or not to purchase a specific good.

Thus, the customer can play an influential role in the economic force of either the employer

against the union, or the union against the employer, depending upon the customer's ultimate

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choice.

Public opinion can also be an influential force in the settlement of labour disputes. Both

sides are acutely aware of this and may, in certain disputes, spend a great deal of time and

resources trying to influence public opinion in their favour. Further, the public has both a right

and an interest to information concerning labour disputes. Surely that is beyond question given

both Section 64 of the Code and the Charter's guarantee of freedom of expression. The fact that

a potential customer may not purchase the struck goods or indeed insist on purchasing such

struck goods, is evident of the desire of that person and the public generally, to be informed of a

labour dispute.

It is clear therefore that the legislation does not aim to insulate secondary employers from

what are considered to be the legitimate primary pressures that derive from a lawful strike: the

interruption of the supply and demand of the struck goods to all secondary employers who

continue to do business with the primary employer.

We have affirmed an employer's right to trade as an important value and one deserving of

protection, but it is clear to us that the right of the secondary employer to trade specifically in the

struck goods is less important than their right to trade generally. Further, the ability of the public

to purchase the particular struck product is also less important than the constitutional protection

of freedom of expression. Finally, the persuasion of a customer not to purchase a struck good is

consistent with the overall balance of the right of the trade union to legitimately affect both the

demand and the supply of the struck good.

What the picketing definition does (as well as the Board's policy in Parkland, supra) is

prohibit all persuasion which involves attendance at a secondary employer's place of business.

What may simply appear to be a location restriction may in fact be a complete bar to the exercise

of freedom of expression in a form which has traditionally been enjoyed by all Canadians. It is

unreasonable to prohibit all persuasion because some or even much of a particular activity may

give rise to prohibited conduct.

Therefore, the definition of picketing is overbroad. It catches more expressive conduct

than can be justified by the objectives of restricting secondary picketing. Thus, the statutory line

drawn in the definition of picketing includes conduct which is constitutionally protected. The

blanket prohibition in the Section 1 definition of picketing is intended to prohibit any persuasive

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activity at the location of the secondary employer. It is this total prohibition, or this complete

ban, which raises the problem of overbreadth because it fails to impair the right "as little as

possible". In Commonwealth, supra, the Court stated the following:

...Such a blanket exclusion on any type of activity is clearly

violative of the requirements set out above [the Oakes test]. (p. 121)

In applying, as we do, the most relaxed standard of scrutiny, in recognition that the legislature is

balancing competing social interests, and therefore deference to the legislature is an important

value, we are mindful of the one area in which the Court requires some degree of vigilance:

overbreadth and vagueness.

...What must be guarded against are the evils of vagueness and

overbreadth, the broad sweep that catches more conduct than is justified by the government's objective. (p. 138)

Finally, in coming to the conclusion that the definition of picketing is overbroad and infringes

freedom of expression we are reminded of Mr. Justice Rand's comments in 1952 (in Aristocratic

Restaurants, supra) in which the Supreme Court of Canada allowed a trade union to persuade

customers not to enter a restaurant: There was clearly a trade dispute as well as a grievance in

this case and the information conveyed by the placards as clearly was relevant to the patronage of the restaurants by consumers. The question, then, is whether the mode of persuasion followed was authorized. How could information be effectively communicated to a prospective customer of such a business otherwise than by such means? The appeal through newspapers or at a distance might and probably would be utterly futile. The persons to be persuaded can, with any degree of certainty, be reached only in the immediate locality, and I must take the legislature to have intended to deal with the matter in a realistic manner. What was attempted was to persuade rationally rather than to coerce by insolence; there was no nuisance of a public nature, and the only annoyance would be the resentment felt almost at any act in the competitive conflict by the person whose interest is assailed. That those within the restaurant, either employees or patrons, were likely to be disturbed to the degree of apprehensive disquiet already mentioned, could not be seriously urged. Through long familiarity, these words and actions in labour controversy have ceased to have an intimidating impact

- 62 - BCLRB No. B270/94 on the average individual and are now taken in the stride of ordinary experience; but the information may be effective to persuade and it is such an appeal that the statute is designed to encourage. (p. 785-786)

We have concluded that the definition of picketing is overbroad. However, a finding of

overbreadth does not necessarily require a finding of constitutional invalidity. The Court and this

Board have the ability to "read down" an offending provision and allow the remainder of the

statute to stand. This will be discussed in greater detail later in this decision.

4. The Proportionality Between Effects and Purpose

The purpose of this part of the test is to weigh the actual effects of an infringement upon a

particular Charter right. If the effect is severe, the infringement may not be justifiable,

notwithstanding that it is the least drastic measure available and advances the legislative purpose.

The analysis under this part of the test is "essentially a cost-benefit analysis": Keegstra, supra,

at p. 310. The questions that are asked are the following: how significant is the infringement;

how significant is the benefit? In many cases this arm of the test is rolled into the "minimal

impairment" test. In Commonwealth, supra, the Court stated the following:

Needless to say besides this overbreadth the contested

provision does not for the same reason pass the proportionality test. (p. 121)

Therefore if the legislation is overinclusive, its effect may also be disproportionate to the pressing

and substantial objectives established by the legislature.

The actual effect of the infringement on freedom of expression is disproportionate to the

legislative aim of protecting neutral secondary employers, resulting in the denial to employees

and trade unions of the right to conduct a consumer boycott. We therefore come to the same

conclusion under this arm of the test as we have under the "minimal impairment" test, and for the

same reasons.

VII. DECISION AND REMEDY

Before coming to a final determination of this appeal on the facts before us we must first

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review what remedies are available under the Charter, and second, determine the jurisdiction of

an administrative tribunal to hear and determine matters under the Charter of Rights and

Freedoms.

We will determine first the issue of the jurisdiction of an administrative tribunal to

consider and determine matters that arise under the Charter. This issue was settled by the

Supreme Court of Canada in Douglas/Kwantlan Faculty Association v. Douglas College (1990),

77 D.L.R. (4th) at 94, and Cuddy Chicks Ltd. v. Ontario Labour Relations Board et al (1991),

81 D.L.R. (4th) 121. The Supreme Court in those two decisions stated that an administrative

tribunal which has been conferred the power to interpret the law "holds a concomitant power to

determine whether that law is constitutionally valid": Cuddy Chicks, supra, at p. 127. The

Constitution is the supreme law of Canada and must be respected by administrative tribunals

when they are called upon to interpret the law. Further, the legal process is better served,

particularly under Section 1 of the Charter, where an expert tribunal charged with the

administration of a particular regulatory field, analyzes the competing policy concerns that arise

within its area. As a result administrative tribunals not only have the authority, but the "duty" to

interpret statutes in light of the Charter of Rights and Freedoms.

However, several other factors must be also noted. First, Section 52(1) of the Charter

does not grant any additional jurisdiction to an administrative tribunal.

Second, the jurisdiction of the tribunal in regard to the subject matter before it, and the

remedies sought under it, must already exist within its own enabling statute. In the facts before

us the issue between the employer and the trade union concerns the definition of picketing.

Picketing clearly falls within the jurisdiction of this Labour Relations Board under the Code.

There are not only the substantive provisions which deal directly with picketing (Section 65) but

also jurisdictional provisions found in Sections 136, 137, 138 and 139 which confer exclusive

jurisdiction on the Board over strikes and picketing.

Thirdly, the tribunal can expect no curial deference in regard to decisions rendered under

the Charter.

Fourthly, an administrative tribunal has no authority to make a formal declaration of

invalidity. It can only treat "any infringed provision" as invalid for the purposes of the matter

before it. Therefore, an administrative tribunal's ruling on the Charter does not constitute a

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binding legal principle and is limited in its applicability to only those matters that arise before that

tribunal.

Fifth is the issue of the range of remedies available under the Charter. At a minimum, the

Board is obliged to apply Section 52(1) which reads as follows:

The Constitution of Canada is the supreme law of Canada, and any

law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

Section 52 authorizes the complete invalidation of any statute found to contravene the

Charter. However, in Schacter v. The Queen (1992), 93 D.L.R. (4th) 1 (S.C.C.), Chief Justice

Lamer comments that Section 52 requires a striking down of any offending enactment only to

"the extent of the inconsistency" (p. 11). The Chief Justice went on to examine Section 52 under

the two stage process developed in Oakes, supra. First, it is necessary to identify the extent of

the inconsistency that must be struck down. (This is under the first part of the Oakes analysis

which the Court identifies as the "purpose test".) Where the legislation fails to meet the first part

of the Oakes test (that the purpose is not sufficiently pressing or substantial to warrant overriding

the Charter right), Section 52(1) requires the striking down of legislation "very broadly" (p. 16).

At the second stage of the Oakes inquiry the Court further divides this part into two

categories: the rational connection test and the minimal impairment/effects test. In regard to the

rational connection test, if it cannot be said that the measures chosen further the Legislature's

purposes then the means are not rationally connected and the Court will strike down "the portion

of the legislation which fails the rational connection test". Finally, where the legislation fails to

meet the second and/or third elements of the proportionality test, there is greater flexibility in

defining the extent of the inconsistency. For example, if the legislative fit is not "carefully

tailored to be a minimal intrusion" or the effects are "disproportionate", the inconsistency can be

defined or restricted to the impugned aspects of the statute (p. 17).

However, when consideration is being given to striking down only the inconsistent

portions of a statute it is important to understand what remains. If what remains changes

substantially the original purpose of legislation then this would demand a greater declaration of

invalidity. However, if the remaining portion is "very significant or of long standing nature"

then that "strengthens the assumption" that the legislature would have enacted the remaining or

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stand alone portions of the legislation.

Another important factor in fashioning a remedy is the principle of legislative deference.

Justice Lamer, in Schacter, supra, quoted Sopinka J.'s comments in Osborne, supra, that in

fashioning a remedy for a Charter violation it is necessary to "apply the measures which will best

vindicate the values expressed in the Charter" and "refrain from intruding into the legislative

sphere beyond what is necessary" (p. 19). Finally, Chief Justice Lamer went on to further quote

Sopinka J. that although "reading down" was not appropriate in the Osborne case, nonetheless, it

may be appropriate in other circumstances:

Reading down may in some cases be the remedy that

achieves the objectives to which I have alluded while at the same time constituting the lesser intrusion into the role of the legislature. (p. 19)

Historically, "reading down" was employed as a rule of interpretation in constitutional

disputes. A narrow construction was placed upon a law so as to preclude its unconstitutional

applications, which may have been inherent in broader interpretations or meanings. The Court

had available to it a remedial alternative to a full declaration of invalidity, which could admittedly

be a blunt constitutional instrument. Reading down therefore could balance legitimate legislative

objectives with constitutional rights.

In certain circumstances all that may be required to preclude an impermissible application

of a law is a restricted interpretation of a single provision or of several offending words in that

provision. A narrow construction must, of course, be consistent with the legislative intention and

be one that the actual language of the statute is capable of bearing. The result is to replace "the

bright line distinction between validity and invalidity with the balancing approach": Carol

Rogerson "The Judicial Search for Appropriate Remedies Under the Charter: Examples of

Overbreadth and Vagueness" in Charter Litigation edited Roger J. Sharpe (Vancouver:

Butterworths, 1987) at p. 251.

The final issue for us in regard to remedy is the concept of overbreadth itself. Once again

overbroad laws are those which are drafted too broadly and, as a result cast a net so wide that the

legislation catches more conduct than is constitutionally permitted. In Rocket, supra, McLachlin

J. discussed how the American doctrine of overbreadth had ordinarily led to a conclusion of

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invalidity in first amendment cases because of the "chilling effect" of such legislation - if an

overbroad law is allowed to remain in force citizens will generally be deterred from exercising

free speech rights because of anticipated sanctions that may be imposed. As a result, it may be

argued that the complete invalidation of legislation that infringes the Charter offers the most

effective protection against such legislative infringements. And the result of case by case

validation or invalidation is really to uphold serious infringements of a constitutionally protected

right. Finally it is argued any such infringements ought to take place only with the most clear

and precise statutory language. Rogerson, supra, commented on the movement of the U.S. courts

from the general application of invalidity in overbreadth cases to a balancing test which now

weighs such "chilling effects" against legitimate governmental interests: Rogerson, supra at 259

- 269. McLachlin J. in Rocket, supra (p. 201-202) noted this trend in U.S. cases in regard to

commercial speech.

The more recent cases from the Supreme Court of Canada in which legislation has been

found to be overbroad has, in fact, resulted in findings of invalidity: Osborne, supra; Rocket,

supra; Commonwealth, supra and Ramsden, supra. However, it is clear from Schacter and

Osborne, both supra, that reading down is one of the acceptable remedies, especially if the

infringement of a guaranteed Charter right falls within the minimal impairment/effects test. And

it is in this part of the test, in fact, that a statute may be found to be overbroad or overinclusive.

In the matter before us we have so far found the definition of picketing which captures

leafleting of struck goods to be overbroad. Because this overbreadth falls within the second and

third elements of proportionality - the minimal impairment/effects test - there is, consistent with

Schacter, supra, flexibility in defining the extent of the inconsistency. We are, of course, aware

that an administrative tribunal cannot make a formal declaration of invalidity. However, under

Cuddy Chicks, supra, the Board is capable of simply not applying a provision which could,

dependent upon the degree of non-application, have the same result as a declaration of invalidity.

Before we continue our discussion of remedy we must examine Section 65(7). This is

necessary because Section 65(7) impacts upon the scope of economic sanctions which are

permissible against the same employer, and this raises more generally the distinction between

permissible primary and secondary pressures. This distinction will ultimately affect the extent of

reading down which the Board will employ.

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To this point we have explored the route of a struck product or service from the primary

to the secondary employer. The ability to conduct a consumer boycott has been in relation to a

"true secondary" who stocks or sells the struck product. However, a different scenario arises

when the primary employer and the "secondary" employer are in fact functionally integrated.

This requires an examination of Section 65(7) and also raises the issue of the scope of a consumer

boycott beyond that of simply the struck product.

In many respects Section 65(7) incorporates one of the principles necessary to the

constitutional determination that must be made: it defines, for the purposes of Section 65 and

picketing, the distinction between primary and secondary. Section 65(7) is potentially wider than

where picketing may actually take place under Section 65(3), but it is also more narrow in its

definition of "primary" than are some of the common law decisions. Under the common law,

when operations of a struck employer are found to be functionally integrated they may be

picketed; however, a trade union does not have the right to picket such a "secondary" under the

Code unless it also satisfies Section 65(3), which limits picketing to the location of the struck

work. Section 65(3) is at the very core of the picketing provisions; it was the unanimous

recommendation of the Sub-Committee of Special Advisors, and it was not challenged in this

hearing. It must be understood that it is Section 65(3) to which we have ultimately given

legislative deference.

We have stated that the separate and distinct concept clearly rejects the ability of a trade

union to bring economic pressure on the "total economic strength" of the employer; and indeed

we have adopted the analysis of Beatty, supra, that a business (a division or operation) needs to

be "functionally connected" or "integrated" before it will not be treated as separate and distinct

under the statutory provision. Therefore, to the degree to which Section 65(7) incorporates the

underlying distinction between primary and secondary, thereby insulating the secondary from

economic sanctions, it is consistent with the overall scheme of the Code and the Charter. The

infringement of Section 2(b) is justified under Section 1 in regard to the protection of a

secondary, but the balance clearly shifts in favour of freedom of expression where a secondary

employer becomes increasingly identified with the primary.

However, there is an obvious inconsistency in allowing consumer boycotts of a struck

product in the hands of a true secondary, but then disallowing any economic pressure to be

brought upon an employer who has been found to be functionally integrated to the struck

employer. Therefore, it is our view that where an employer fails to meet the separate and

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distinct test, the different divisions and operations of the same struck employer may be subject to

a consumer boycott. Freedom of expression is thus given a wider application. Accordingly, the

presence or absence of the particular struck product will not preclude the ability of a trade union

to conduct a consumer boycott of a division or operation that has been found to be functionally

integrated into the struck employer. All of this is consistent with permitting economic sanctions

against the primary employer, but not permitting true secondary sanctions (ie. picketing which

results in employees not reporting for work or deliveries being curtailed).

Thus the products of the other operations and divisions of the same employer, which are

found to be separate and distinct (and do not carry struck goods) cannot be the target of leafleting

or a consumer boycott. It follows therefore that a completely neutral third party employer

uninvolved in any way whatsoever in the labour dispute (no struck goods, not functionally

integrated) cannot have its products made the target of leafleting or a consumer boycott by the

striking union. For example, a trade union prosecuting its strike cannot decide to arbitrarily

leaflet other members of the local Chamber of Commerce in hopes that that will produce pressure

on the struck employer. Therefore, having outlined the permissible scope of leafleting in regard

to primary and secondary employers we will now return to our discussion of remedy.

We have concluded that through reading down the definition of picketing we are able to

separate the valid from the invalid applications of the picketing provisions; that a more narrow

construction of the definition of picketing is capable of curing the overinclusiveness contained in

the definition. This results in a more appropriate balance between preserving freedom of

expression and the legitimate legislative objectives of regulating secondary picketing and other

industrial activity. This more finely tuned remedy minimizes interference in the legislative arena.

Therefore, this Board will read down the definition of picketing to permit attending at the

site of the secondary employer for the purposes of persuading consumers not to purchase struck

goods or, in the case of a functionally integrated employer, not to do business with that

employer. Consequently, a consumer boycott would now fall within Section 64 as a protected

form of communication concerning the facts of a labour dispute and will not be contrary to

Section 67 of the Code. However this Board is not reading down the definition of picketing to

exclude all instances of leafleting. There may be circumstances when the definition is read down

to exclude leafleting and there may be other circumstances when leafleting falls within the

definition of picketing and will be enjoined.

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We have chosen not to read down Section 65(7) itself. This is in deference to the

Legislature. Section 65(7) incorporates the basic principle of primary and secondary which is

consistent with the overall labour relations scheme and the constitutional line drawn in relation to

freedom of expression. Section 65(7) may call for a different weighing of these two factors than

either the common law or other parts of the Code (in some cases wider, in other cases narrower)

but it is not, in our view, appropriate to second guess the actual weighing where the correct

principles are consistently incorporated. This is especially the case where the Board has the

ability to construct policy that is consistent with both the legislative intention and constitutional

requirements. Section 65(7) is quite distinct in this regard from the definition of picketing which,

in some circumstances, simply precludes freedom of expression entirely.

We should note four additional points in regard to the scope of this decision: first, a

union can clearly leaflet at a public place to communicate information concerning its labour

dispute if its only purpose is to inform the public and the material is not directed at any secondary

employer; second, in the absence of a labour dispute, a trade union can by itself or in conjunction

with other interest groups conduct leafleting and consumer boycotts in relation to any political or

social issues which it identifies as important (this activity would fall within the jurisdiction of the

Court and not this Board); third, this decision does not address the matter of leafleting during an

organizing campaign or mid-contract disputes, but only deals with such activity in the context of

a lawful strike or lockout. Finally, we have deliberately chosen the term consumer boycott as

opposed to informational picketing. The term picketing will be employed to describe only

prohibited activity under the Code. The term consumer boycott is employed to describe any

activity that legitimately falls within the protected area of freedom of expression under Section 64

of the Code.

We recognize that the restrictions we have placed on leafleting during a labour dispute are

not necessarily the restrictions a Court may place on leafleting outside of a labour dispute.

However, these restriction are justifiable in the specific context and needs of labour relations

because of our recognition that secondary employers who are true neutral parties should not be

adversely affected by industrial activity related to a labour dispute to which they are not a party.

The protection of neutral third parties from the expansion of industrial conflict has been

recognized by the Courts as justifiable. As noted in Dolphin Delivery, supra:

...When the parties do exercise the right to disagree, picketing and

other forms of industrial conflict are likely to follow. The social cost is great, man hours and wages are lost, production and services will be disrupted and general tensions within the

- 70 - BCLRB No. B270/94 community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others. (p. 189; emphasis added)

Unlike any other interest group in our society, a trade union has the right to strike. This

is a powerful weapon with which to impose economic harm. The right to picket enhances the

strike weapon. Leafleting does the same. When directed at the primary employer these are all

legitimate forms of economic pressure. However, it is the restraint of these activities as

economic weapons against true secondaries that underlies not only the picketing provisions but

the Code as a whole. Clearly the difference between leafleting by an interest group and that by a

trade union is the resulting expansion by the trade union of industrial conflict to parties not

involved in the labour dispute. A trade union that leaflets a secondary employer, who has no

involvement in the dispute, and no ability to settle that dispute, has extended economic harm in a

manner that incorporates no legitimate purpose under the Code, nor on balance, provided any

justification that such leafleting incorporates any of the values underlying freedom of expression.

Thus the insulating of a true neutral, which the picketing provisions are designed to protect,

would clearly be defeated, in some circumstances, if a trade union could accomplish through

leafleting what it would be prohibited from doing through picketing. This would make the intent

of the picketing provisions, and the constitutional protection they have been afforded, illusory.

Although it may initially appear that a clear distinction can be made between both the

conduct of leafleting (handing out written material) and the effect of leafleting (the persuasion of

consumers, rather than employees or suppliers) from that of picketing, we are not persuaded, that

in a labour relations context, such a distinction can be maintained in all circumstances. That of

course was the judgment of the Legislature when it incorporated both activities within the

definition of picketing. Indeed, earlier Board decisions determined that leafleting fell within the

definition of picketing and no changes were made to the definition of picketing with the January,

1993 enactment of the Code.

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We now turn to defining what constitutes a consumer boycott in the context of a lawful

labour dispute. A consumer boycott is any activity initiated by a union in support of its primary

economic pressure against the struck employer and consists of any communication with the public

designed to persuade a consumer not to purchase struck goods from the secondary employer or

otherwise do business with a secondary employer who is functionally integrated with the struck

employer. It is difficult to prescribe what specifically a consumer boycott may employ as its

means to communicate its message. This is because, as stated in Irwin Toy, supra and

Commonwealth, supra, the means can be inextricably linked to freedom of expression itself. One

cannot simply say that leafleting or handbilling constitutes freedom of expression, but posters,

placards, sandwich boards, speeches, canvassing of customers, billboards, do not. Thus, we feel

it is impossible to say that a leaflet or handbill falls within the protected area of freedom of

expression, but a poster or placard does not. Indeed, in Ramsden, supra, posters were expressly

found to fall within the protected activity guaranteed by freedom of expression.

However, what can be said is that a consumer boycott, as a matter of labour relations

policy, can and will be regulated by the Board. Pursuant to Sections 1, 64, 65, 67, 136, 137,

138 and 139 we, therefore, set down the following guidelines as to what will constitute consumer

boycott activity, and thus be permissible, and what will constitute picketing, and therefore be

impermissible, at the site of a secondary employer.

1. A consumer boycott may be conducted against an employer who carries struck

goods or who is functionally integrated with the struck employer. If the secondary

employer removes the struck goods that is the end of the matter and no boycott

activity may commence. Further, if during the consumer boycott activity the

secondary employer removes the struck goods then the boycott activity must

cease. (Many trade unions have long had the practice of communicating with

secondary employers concerning the selling of struck goods prior to any actual

boycott activity.)

2. Any expressive activity (spoken or written) must make unequivocally clear that

the labour dispute is not with the secondary employer. Indeed all communication

must name the primary employer and make clear that the boycott activity is only

in relation to the primary employer. The exception is where the "secondary

employer" is functionally integrated with the struck employer.

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3. There can be no attempt to prevent employees of the secondary employer from

working nor can there be any interference in any other contractual relations of the

secondary employer, eg. suppliers.

4. Notwithstanding the intent of the trade union, if the boycott results in the

employees of the secondary employer refusing to report to work or results in any

interference with other contractual relations of the secondary employer (eg.

deliveries), then the boycott activity will be found to be picketing and an order

will be made enjoining that activity. The policy of the Board with regard to the

effect of such activity can be summarized in the words of Parkland, supra.

...As to the last, we simply say that in labour

relations as anywhere else it is not only legitimate but also quite sensible to infer that the true objective of an actor is the effect which he is regularly, predictably and knowingly producing. (p. 353).

The more a consumer boycott appears to be like the traditional picket line (the use

of picket signs, marching back and forth in front of a store entrance) the greater

the onus on the union will be to ensure that the impugned effect of this activity

does not take place. Indeed, the protection against that effect is a legitimate

objective of the statute and the union in such situations has a role in ensuring that

that effect is not the result of its activity.

5. The Board will be vigilant with regard to the activities of persons participating in

a consumer boycott. The location of persons participating in the boycott activity,

in relation to the entrances and exits of the particular business, and the manner in

which the boycotters conduct themselves in relation to any potential customers of

that business, are significant issues in regard to the legitimacy of the boycott

activity. Any activity which physically blocks access or makes access difficult or

in any way physically or verbally intimidates the consumer will be enjoined.

6. What is contemplated in the Board's view by consumer boycott activity is the

freedom of persons to express their view about a labour dispute and have the

opportunity to persuade potential customers not to purchase struck goods or

otherwise do business with a secondary employer who is functionally integrated

with the struck employer. This process is one of rational persuasion in which the

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members of the public must be free to either stop and read the material and engage

in discussion or be equally free to completely ignore the canvasser and enter the

secondary employer's premises unimpeded.

7. The boycott activity must, of course, be otherwise lawful.

Thus, in conclusion, we have determined that a prohibition against leafleting at the site of

a secondary employer who is handling "struck goods" or who is "functionally integrated" with

the primary employer involved in the labour dispute (in that it fails the separate and distinct test

in Section 65(7) of the Code) is a breach of Section 2(b) of the Charter and is not saved by

Section 1.

We now turn to the facts of the case before us. We can deal both with these facts and the

orders made in a summary fashion. The dispute has been settled and the picketing activity has

long ceased to be an issue.

The United Food & Commercial Workers' International Union, Local 1518 had

organized two of KMart's department stores (Port Alberni and Campbell River). The total

number of individuals locked out were approximately 140 and there was a lawful strike in place.

At the time of the activity the members of the union had been on strike for approximately 6

months and the picketing activity was designed to persuade Christmas shoppers not to spend their

dollars at KMart. The union therefore picketed at KMart stores in different parts of the province

- especially in the Greater Victoria and Greater Vancouver areas. The pickets would arrive at

stores, which were most often located in shopping malls, and would number between two to

twelve persons. They congregated around the KMart stores at distances which ranged from two

to twenty feet from the stores' entrances. They also leafleted cars in the parking lots and at the

entrances to the parking lots. The pamphlet material that was handed out asked consumers not to

spend their Christmas dollars at KMart, cited the lockout of the employees by the employer and

referred to the fact that these employees had been on strike for approximately six months. The

material further stated that 95% of the employees were women, working part time, and these

women were seeking a first collective agreement. The Board found no evidence of threats nor

any verbal or physical intimidation.

It is our view, as stated earlier, that this material falls within the constitutionally protected

right of freedom of expression: it is in furtherance of the values underlying freedom of

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expression, particularly participation in social and political decision making and individual self-

fulfilment and human flourishing. Because the dispute is now academic we will not revisit the

particular orders made. However, we do take the opportunity to comment on some aspects of it

in view of the policy enunciated in this decision.

It was admitted by the trade union that each KMart store was separate and distinct under

Section 65(7). As a result, we conclude that the leafleting which took place in this case would

have been prohibited. However, should KMart have failed to establish that the non-struck stores

were separate and distinct, the union would have had the right to conduct a consumer boycott at

the non-struck stores. The onus would of course have been on KMart to establish that the non-

struck stores were separate and distinct.

However, the individuals who attended at store entrances in large numbers (twelve), a

very short distance from the store entrances (two to five feet) and who formed a "chain" across

the store entrance (at the Langley store), would have had their conduct enjoined as picketing.

But, leafleting by a small group of people (two to three), some ten to twenty feet from the store

entrances which did not impede access to the store, would not constitute picketing unless the

effect of their activity had been to restrict employees from reporting to work or deliveries from

being made.

Unfortunately we cannot say more about this particular activity or the Board orders. The

two orders were in effect "global" orders that applied to all sites. This made sense

administratively, but does not allow us to determine which activity at a specific site might have

been lawful and which activity might have been unlawful.

However, we believe our limited conclusions are consistent with the guidelines which we

have laid down for consumer boycott activity and also consistent with the required balancing

between freedom of expression and the statutory provisions of the Code regulating secondary

picketing.

VIII CONCLUSION

This decision has dealt with the issue of leafleting during a labour dispute. We have

determined that a prohibition against leafleting at the site of a secondary employer who is

- 75 - BCLRB No. B270/94

handling "struck goods" or who is "functionally integrated" with the primary employer involved

in the labour dispute in that it fails the separate and distinct test in Section 65(7) of the Code is a

breach of Section 2(b) of the Charter and is not saved by Section 1.

We have, therefore, concluded that while the Board will continue to vigilantly enforce the

picketing scheme of the Code, the impugned provisions will be read down to exclude the above

described leafleting from this prohibition. Finally, this decision has set out guidelines as to what

constitutes permissible consumer boycotts at the site of an employer who carries struck goods or

who is functionally integrated with the struck employer. LABOUR RELATIONS BOARD STAN LANYON CHAIR JOHN B. HALL ASSOCIATE CHAIR (ADJUDICATION) BRIAN FOLEY ASSOCIATE CHAIR (MEDIATION) VICE-CHAIRS BURKE AND OLEKSIUK DISSENT. THEIR REASONS ARE ATTACHED.

- 76 - BCLRB No. B270/94 DISSENTING REASONS

I BACKGROUND

This appeal is about union leafleting and the right of freedom of expression guaranteed

under the Charter. The original panel restricted union leafleting outside non-struck K-Mart

Stores. The case concerns the constitutional validity of that restriction.

The Board has determined that leafleting is prima facie caught by the definition of

picketing in the Code. The restrictions on picketing therefore apply to leafleting. See

Overwaitea Foods' Division of Jim Pattison Industries Ltd., B.C.L.R.B. No. B14/87, (1987) 14

CLRBR (NS) 268. The parties concede the legislation infringes the guarantee of freedom of

expression under Section 2(b) of the Charter. The issue is whether such a prohibition is justified

under Section 1 of the Canadian Charter of Rights and Freedoms.

In this appeal, the majority has concluded that the legislation is over-broad and that a

blanket prohibition of leafleting is not justified. To that extent we agree with the majority. The

majority, however, reads down the definition of picketing to exclude some but not all instances of

leafleting.

We differ from the majority both in the analysis and the result. We find that the majority

has reached a result that is still overly broad in its inclusion of leafleting in picketing. The Union

is asserting a right to use an inexpensive means of communication in a venue that by its nature

gives it access to consumers. This is historically a significant form of expression of rational

persuasion in our society. The impact on freedom of expression is disproportionate to the

objective of the legislation to restrict the social harm caused by economic conflict. The

restrictions on leafleting are not justified on a Charter analysis. The right of freedom of

expression outweighs the legislative objective. If leafleting becomes picketing it will be enjoined.

For the purposes of our analysis, leafleting involves activities by a limited number of

people, who by the distribution of written information, give the public materials which seek to

influence the exercise of their consumer choice. Where leafleting is conducted at the primary

place of the dispute, all agree that leafleting (and picketing) are permissible. The question is

whether leafleting should be prohibited at other locations.

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II STATUTORY PROVISIONS

A number of statutory provisions impact on this question.

Section 1 of the Charter guarantees:

the right and freedoms set out in it subject only to such reasonable limits

prescribed by law as can be demonstrably justified in a free and democratic society.

Section 2(b) says:

2.Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression including

freedom the press and other media of communication.

Picketing is defined in the Code as: Section 1(1) "picket" or "picketing" means attending at

or near a person's place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to

(a)enter that place of business, operations or employment,

(b)deal in or handle that person's products, or

(c)do business with that person, and a similar act at such a place that has an

equivalent purpose;

Picketing is restricted under Section 67 of the Code:

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Section 67 Except as provided in this Code, a person shall not picket in

respect of a...

Among the Code's purposes set out in Section 2(1) is the minimizing of the effects of a

labour dispute on uninvolved parties and the protection of the public interest during labour

disputes. Section 64 however, allows a trade union or person to communicate information as

long as it is not picketing under the Code:

64.A trade union or other person may, at any time and in a manner that

does not constitute picketing as defined in this Code, communicate information to a person, or publicly express sympathy or support for a person, as to matters or things affecting or relating to terms or conditions of employment or work done or to be done by that person.

Finally, under Section 136(iii), the Board has jurisdiction to regulate both picketing and

"communicating information or opinion in a labour dispute by speech, writing or other means."

III ANALYSIS

a) Definition of Picketing

The Board in Overwaitea Foods', supra, concluded that leafleting was included within

picketing. The restrictions on picketing thereby applied to leafleting. The majority does not

question this initial premise. In doing so, it ultimately accepts an intent to restrict leafleting by

the legislation which in our view is not clearly articulated. The Legislature did not specifically

turn its mind to the issue of leafleting. The Code does not set out leafleting as a specially

prohibited mode of conduct in the Code. Rather, it was this Board in Overwaitea Foods', supra,

that found leafleting to be covered by the picketing definition and thereby the restrictions.

Discussion on this point is not evident in the report or recommendations of the Sub-Committee of

Special Advisors whose report pre-dated this legislation.

Section 64 protects the ability of the trade union to communicate information to the public

provided it is not picketing. Section 136(2)(ii) and (iii) differentiates between picketing and

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"communicating information" in a labour dispute. The Board in Parkland Developments

Corporation Ltd., [1975] 1 CLRBR 339 found picketing to be more than communication, being a

signal to members of a union to stop working. The Board in Overwaitea Foods', supra,

dismissed this distinction without extensive analysis and concluded leafleting was picketing. The

distinction that these sections recognize was not taken into account. In our view, the provisions

as presently framed could well lead to the conclusion that leafleting is not covered under the

definition of picketing.

Leafleting in our view is nothing more than communication and as such may well be

protected under Section 64 alone. Rather than develop this analysis, we rest our conclusions on

the Charter analysis that follows. We note however, that it is not clear the "relaxed" standard of

review under the Charter utilized by the majority provides the answer in this case. It may well

be, as argued by the Union, an invitation not to engage in a Charter analysis at all.

b) Charter Analysis

Leafleting is an exercise of the right of freedom of expression. The right to freedom of

expression is guaranteed by Section 2(b) of the Canadian Charter of Rights and Freedoms. It is

"difficult to imagine a guaranteed right more important to a democratic society than freedom of

expression" (Cory J. in Edmonton Journal v. Alta (AG), 64 D.L.R. (4th) 577 at p. 607). There

is inevitably a cost to society in the exercise of a protected freedom. The right to free speech

means a right of expression that many, often the majority, find objectionable. The question is

whether the Code's restrictions on leafleting are justified under Section 1 of the Charter.

In determining whether a limit is justified under Section 1 of the Charter the onus of proof

is on the party seeking to uphold the limitation. See R. v Edwards Book and Art Ltd. [1986] 2

SCR 713. To justify a limit, two requirements must be satisfied.

First the legislative objective which the limitation is designed to promote

must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normal has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual

- 5 - BCLRB No. B270/94 or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgement of rights. The court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the court has been careful to avoid rigid and inflexible standards. (Emphasis added) (p. 768 - 769)

In determining whether the limitation imposed on leafleting is justified, the legislative

objective which the limitation is designed to promote must be identified. The objective must be

of significant importance to warrant overriding a constitutionally protected right or freedom: R.

v Oakes [1986] 1 SCR 103, p. 138-39.

The majority concludes the regulation of picketing is of pressing and substantial concern

to a free and democratic society. It says: "There is a strong and evident connection between the

general goal of regulating economic conflict and the specific statutory provision (the Code)." (p.

38). We do not dispute this concern respecting picketing. The majority however ultimately

relies upon the justification for limiting picketing in reaching its conclusion concerning leafleting.

It does not identify the objectives which justify a limitation on leafleting.

In our view the legislative concern behind the picketing limitations is not economic

conflict per se but the social cost caused by that conflict. The regulation of economic conflict is

rationally connected to the objective of minimizing the social cost caused by that conflict. In the

case of leafleting however, the legislation does not do so in a way that minimally impairs

freedom of expression.

The majority does not deal with the difference between the nature of the economic

conflict, the costs of picketing, and the costs of leafleting. It is in this area that we fundamentally

depart from the majority decision. This failure to recognize and pursue this distinction in the

analysis is critical to a justification analysis under the Charter. The failure also leads to an

inherent contradiction in the decision as the majority relies upon that distinction to enjoin

leafleting that becomes "picketing".

We agree that the distinction between "primary site" and "secondary site" forms an

essential rationale for the picketing provisions in the Code. The public interest must be protected

and the effect of labour disputes minimized. As set out in Dolphin Delivery, supra, (1986) 33

D.L.R. (4th) 174 (SCC):

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...a limitation on secondary picketing against a third party, that is, a non-

ally, would be reasonable on the facts of this case. (p. 190)

It is important, however, to understand the distinction between permissible and

impermissible secondary effects of picketing; to understand the distinction between the act of

picketing and that of a secondary boycott; and ultimately to take into account free speech

concerns. As noted by the majority, this has been the academic criticism of the prohibition of all

secondary picketing in Hersees of Woodstock v Goldstein, (1963), 2 OR 81 (Ont. C.A.). In the

result however, the majority's conclusion focuses almost entirely on the first point and does not

itself take adequately into account the latter two points. It fails to make a meaningful distinction

between a union's use of a picket line and the use of leafleting. As a result, its analysis is driven

by picketing concerns alone.

The distinction between secondary boycott and picketing is critical to the issue before us.

Restrictions on picketing secondary employers have been founded to a great extent on

common law torts, in particular that of inducing breach of contract. Pickets which cause

employees of secondary employers to breach employment contracts or collective agreements, or

suppliers to break their supply contracts may be enjoined. The nature of the social cost caused

by this conduct was articulated in Dolphin Delivery, supra, as follows:

When the parties do exercise the right to disagree, picketing and other

forms of industrial conflict are likely to follow. The social cost is great, man hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others. (p. 189)

A second area of concern is that since a secondary employer does not have the power to

make concessions to settle the dispute, it should not be the target of a weapon whose purpose is

to extract these economic concessions.

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These two concerns, which underlie the restriction of picketing, are not evident in

leafleting. Carrothers, in "Collective Bargaining Law in Canada" noted the lack of tortious

behaviour in relation to leafleting:

Limitations on consumer directed activity are not as easy to justify.

Unlike employee picketing, a consumer boycott does not induce secondary employees to breach their employment contracts, nor does it cause suppliers to breach their supply contracts. It merely appeals to consumers to make an independent decision to refuse to purchase the offending product. Such an appeal affects demand for the product, and the secondary will be induced to decrease or limit orders for the product. But the Union is not coercing an unlawful act, because any person is entitled to make consumption decisions on whatever ground he [she] desires. (p. 716)

Under a Section 1 analysis the onus is on the party seeking to uphold the limitation.

There is no evidence before us that shows that leafleting has a dramatic impact on the social and

economic fabric of society. There is no evidence consumer leafleting evokes the "signal" effect

that picketing does. Leafleting does not raise the spectre of tortious behaviour connected with

persons refusing to cross a picket line. It is not self-evident that leafleting will cause great social

cost. We do not take the remarks in Dolphin Delivery concerning economic conflict to

automatically apply to leafleting. There is no judicial consensus that leafleting is responsible for

significant social disruption. In fact, in this case, as noted by the original panel, only a small

number of people exercised their consumer choice and declined to shop at K-Mart.

Economic loss may occur in a successful leafleting campaign, when consumers decide not

to purchase goods or shop at a particular location. That is part of the exercise of free speech. As

noted in Irwin Toy, supra, freedom of expression is "not only for the sake of those who convey a

meaning, but also for the sake of those to whom it is conveyed" (p. 976)

We do not find any meaningful jurisprudential support for the idea that economic impact

in and of itself stands as grounds for limiting freedom of expression. Our society is replete

with examples of messages aimed at consumers. Messages can be positive or negative. The

impact of these messages varies across a wide spectrum. Our society has not seen fit to proscribe

the right to deliver such messages unless specific concerns of a sufficient nature to override the

- 8 - BCLRB No. B270/94

right of freedom of expression are demonstrated. In the field of industrial relations the essential

elements of concern can be described as economic harm inflicted by the use of tortious behaviour

on parties that do not have the power to make concessions that would settle the dispute. Put

more simply, true neutrals to a labour dispute should not suffer interruptions of supplies or

labour because of the "signal" power of picket lines. The simple effect, has not and in our

opinion should not be justification for limitations on the use of leafleting as a manifestation of the

right to freedom of expression.

The facts of this case also demonstrate a lack of the second element of concern; the

spreading of the unacceptable effects of a labour dispute to an innocent third party. Section 65(7)

of the Code allows for finding a separate and distinct employer based on divisional or operational

lines within a corporation. While this statutory delineation may be justified in the context of true

picketing, it does not lead to a finding of K-Mart being a secondary employer for the purposes of

leafleting and this Charter analysis. The non-struck locations of K-Mart are not in the position of

a true secondary employer that does not have power to make concessions to settle the dispute.

The artificiality of accepting Section 65(7) as a point of limitation of leafleting is evident

from the necessary implication of the majority's conclusion that had the leafleting identified only

the struck K-Mart stores, leafleting at the non-struck locations would not be prohibited. (p. 73).

This demonstrates the need in the majority analysis for detailed examination of not just the

written words but the implied messages. This promotes unnecessary litigation not conducive to

stable labour relations as mandated under Section 2(b) of the Code.

We previously noted that leafleting does not involve tortious behaviour. The legislative

history of Section 65(7) which allows K-Mart to be considered a separate employer, establishes

that the concern which initiated the enactment of Section 65(7) is the concern identified in

Dolphin Delivery, supra, the adverse effect of a picket line. Accordingly, neither of the concerns

that form the basis of the limitation of or prohibitions on picketing are present in this

case. Section 65 contains restrictions on picketing. Because we have concluded that leafleting is

not picketing, ultimately Section 65(7) would not apply.

Under the Section 1 analysis, the legislative objective which the picketing legislation is

designed to promote is to minimize the social cost caused by economic conflict. Union leafleting

may be characterized as part of that economic conflict and thereby part of the legislative objective

- 9 - BCLRB No. B270/94

behind the limits in the Code. The means chosen to attain this objective is the complete

prohibition of picketing, and thereby leafleting, at all non-struck locations of an employer. While

this may be proportional to the identified objective with respect to picketing, we do not find the

means appropriate to the ends with respect to leafleting. It does not impair the right as little as

possible because the concern behind the legislation, the social cost of economic conflict, is not of

sufficient weight with respect to leafleting to overcome the fundamental freedom. Significant

adverse social cost has not been demonstrated. As the Union argues, a restriction which impairs

freedom of expression as little as possible, would distinguish between leafleting that interferes

with employment and deliveries and leafleting that does not. Only the former would be restricted

under legislation that creates a minimal impairment - because only the former is related to the

statutory objective.

As a result, we conclude the prohibition on leafleting by its inclusion in the definition of

picketing is broad. It totally prohibits leafleting at non-struck locations. This compromises

informed political, social and economic decision making by the consumer public. Those leaflets

may contain social and economic information about a labour dispute that the public may wish to

know. In this way it is a prohibition against informed decision making. The limit is not minimal

- it prohibits all leafleting at many locations. It is a complete ban and therefore is more difficult

to justify. See Ramsden v. Peterborough City, [1994] 106 D.L.R. (4th) 233 at p. 248; [1993] 2

S.C.R. 1084. As in Commonwealth of Canada, supra, the Union is asserting a right to use

inexpensive means of communication in a venue that by its nature gives it access to consumers.

This in our view is historically a significant form of expression: a form of rational persuasion.

A union member does not lose this right simply because he/she belongs to a union. The loss of

the right of freedom of expression must be justified under Section 1 of the Charter.

A restriction on leafleting is not saved by the policies protecting the regulation of

picketing. Leafleting neither has the intent nor the effect of inducing breach of contract.

Suppliers and employees are unaffected by leafleting. As a result, the social cost associated with

picketing is not present. If the activity changes and the leafleting becomes picketing it will be

enjoined.

IV CONCLUSION

The picketing definition as presently framed prohibits anyone from "attending" at other

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than the struck employers's premises. It is a fundamental freedom for all citizens that is

completely denied in these circumstances. Therefore, the definition of picketing is over-broad.

Whether the original determination in Overwaitea Foods', supra, that leafleting is included in the

picketing definition under the Code is correct, clearly on a Charter analysis, it is "over-broad".

It catches more expressive conduct than can be justified by the objective of restricting economic

conflict. By capturing leafleting within the definition of picketing, it fails to impair the right of

freedom of expression "as little as possible."

The legislative objective is to regulate economic conflict because of the social cost as

articulated in Dolphin Delivery, supra. Regulation of economic conflict is rationally connected to

the objective of minimizing the social cost. Ultimately, however the restriction is not properly

tailored to "impair as little as possible" the citizen's rights or freedoms. The social cost of

leafleting has not been demonstrated to be significant. The law is "over broad" and vague - it is

"a broad sweep that catches more conduct than is justified by the government's objective."

(McLachan, J. in Committee for Commonwealth v Canada, supra, p. 138).

We have not found justification for limits on leafleting as an exercise of the freedom of

expression. The decision of the majority to accept Section 65(7) as the point of limitation of

leafleting is not in our view consistent with the jurisprudence or commentary on the concerns that

arise in regard to leafleting. Section 65(7) has a test that does not address the question of

whether a party is so removed from the power to make concessions that it is a true neutral.

Moveover, there is a serious question as to whether even a true neutral should be shielded from

leafleting since leafleting does not involve tortious behaviour. The right to leaflet as a

manifestation of the freedom of expression is not a right which we feel should be limited.

LABOUR RELATIONS BOARD EMILY BURKE

- 11 - BCLRB No. B270/94 VICE-CHAIR KEITH OLEKSIUK VICE-CHAIR