Citing Canadian Charter of
Rights and Freedoms, Supreme Court of Canada strikes down statutory definition
of "picketing" as authorizing ban on Union's non-coercive leafleting
at K-Mart stores not actually involved in labor dispute
In December 1992, United Food and
Commercial Workers, Local 1518 (the Union) was engaged in a labor dispute with
two stores of K-Mart Canada Ltd.(KMC) in British Columbia. One of the Union's
tactics was to pass out leaflets at several other KMC stores or "secondary
sites" where the Union was not certified. The leaflets set forth the
Union's views as to KMC's alleged unfair labor practices and tried to persuade
customers to avoid spending their "Christmas dollars" in K-Mart
stores.
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.
KMC went to the Labor Relations
Board (LRB) and persuaded it to order the union to stop "picketing"
at the secondary locations. The LRB declined the Union's invitation to narrowly
construe the statutory term "picketing" so as not to apply to
leafleting pursuant to Section 2(b) of the Canadian Charter of Rights and
Freedoms.
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.
On the other hand, Section 1(1)
of the Code defines picketing in such spacious terms as to include leafleting.
Other Code articles define what is proper and improper picketing, and in this
way the Code unduly restricts the Union's freedom to pass out leaflets to
explain its viewpoint to consumers.
Unlike consumer leafleting, a
picket line bars or hinders the public's access to goods and services, the
workers' ability to get to their work place and shippers' ability to deliver
goods. Leafleting, in short, lacks the coercive aspects of a picket line though
it may, like a lawful consumer boycott, cause the target business to lose
money.
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).
