This activity did not get in the way of KMC employees and did not disrupt the shipment of supplies. There was no violence or intimidation and no blocking of public access to the stores. Some members of the public showed bewilderment, however, and a few apparently went elsewhere.
The British Columbia Supreme Court and Court of Appeal dismissed the Union's petition for judicial review. The Supreme Court of Canada, however, took the case to determine whether the Labor Relations Code's definition of picketing contravenes Section 2(b) on freedom of speech and, if so, whether Section 1 excuses the infringement. The Court allows the appeal.
Reviewing the leading Canadian and American cases, the Court concludes that the importance of a job to each person creates the need for workers to speak openly on matters that pertain to working conditions. Leafleting is a centuries-old and cost-effective way to furnish information in aid of reasonable persuasion. Section 64 of the Labor Relations Code states that a trade union and its members are free to communicate with the public about a labor controversy unless it involves picketing.
What is important is that a Union's activity must not take away the consumer's freedom to accept or reject the literature as well as to enter or depart from the neutral site. Here, the leaflets contained accurate, non-defamatory messages and clearly spelled out that the Union's dispute was with the primary employers only. Moreover, the number of leafleters was small and did not interfere with the regular business routines at the secondary sites.
While the LRB did purport to take the Charter into account, this Court has to decide whether its interpretation was right. Sections 1, 65 and 67 of the Code totally bars any persuasive activity by striking or locked-out employees at neutral sites. The goal is to minimize the impact of labor unrest on persons and companies not directly involved in it.
On the present issue, however, the legislature failed to narrow its ban on coercive picketing so as to protect the Union's right under the Charter to hand out leaflets. The Court, therefore, strikes down the definition of "picketing" in Section 1(1) of the Code but suspends its declaration of invalidity for six months.
Citation: United Food and Commercial Workers v. K-Mart Canada Ltd., File No.: 26209 (Sup. Ct. of Can., Sept. 9, 1999).