Lecture 3: Aftermath of Pepsi-COla
Albert NB and Newfoundland all prohibit secondary picketin gby statute., even for
however, in Alerbta the courts have found that a compelte ban is a charter breach
because it went further nthan necessary to avoid economic damage.
In BC GEU v. BC 
o Justice McEachern granted an injunctino to himself to stop picekters outside
of the courthouse on the basis of contempt of law.
o because this was the court acting on its own motion, Dolphin delivery applies
to allow the Court to be subject to Charter
o however, the court upheld the injunction viewing it as necessary to protect
the rights of third parties by ensuring access to the courts.
This ruleing was used in Ontario Public Service Employee's Unon v. ONtario (1996) to
uphold an inunction against picketing a courthouse, even though the vidence was
that the picketing was not disuading anyone from entering the courthouse.
Canadian Forest Products Ltd. (Re)  BCLRBD
HEU was involved in labour dispute with health care employers over new collective
o legislated back to work with new agreement
o HEU had a few days of protest instead, some of which was found to be illegal
some HEU workers went to the D's mill, had placards on and congregated outside
Started off as an information picket, taking to wrokers as they drove into work
o didn't block line or anything
Leader of group changes it into a "official picket"
o Mill unit starts refusing to come into work
o management tells the picketers they will be liable if people didn't come to
o mill shuts down
none of the mil workers joined the picket, just went home
Board issues cease and desist order, picketers leave
So basically we have a picket that started of as informational and a legitimate
o which turned into "signal effect picketing"
o which stopped the Canfor workers from coming in.
Not totally clear the degree to which the HEU ordered the strike
in order to get reconsideration, must demonsrate a "good arguable case of sufficient
merit that it may succeed on one of the established grounds for reconsideration".
basically Union is arguing this wasn't a strike, this was a legitimate political protest
that the Cdoe does not cover o one the "back to work" legislation was passed, this changed from a labour
dispute to a political protest, so board lost jurisdiction
o had the union gone back to work and protested outside working hours, it
could have been political
o but instead they used work stoppage as economic stoppage with the intent to
improve the bargain
o so not a "political protest", but a labour dispute with political overtones.
Union also argues that since the BC defintion of picketing was struck down in KMart
Canada, there is now an unrestricted right to communciate as long as the
communication is not ceorcive or intimidating
o nope, the restrictions in the code that cover picketing still apply,
notwithstanding the current absence of a statutory definition of picketing
Here, the informational incident was not a picketline, but once it went "official" it
became a picket, and had a signal effect, according to the orginal board anyways.
o thus it is possible to wear placards and so on that are different from "signal
So how do we know the protest became a picket?
o the HEU rep called it "official picket lines"
o the conduct constituted a group of people who had congregated at the
enterance of a remote unionized workplace just before shift change with
so it is picketing because it is identified as such by the people doing it,
and because it is clearly the kind of conduct recognizable as picketing
o you could have a protest or congregation, even with placards, but once you
try and stop union members from crossing the line, this is picketing
o Canfor wants to hold HEU liable for the actions of members
o the original board did not think the evidence was clear enough that the HEU
had intentionally done this
o review will only be available here on palpable and overriding error test, which
was not made out here
the board's decision was not the only one that could have been made
out, but it was reasonable.
o on the other hand, the board appeared to err in finding that there was "no
evidence" that HEY authorized the picketing of the mill
there was consdierable circumstantial evidence presented by Canfor
that suggested HEU authorize the strike.
while weighing is up to the board, this suggests there was an error.
so the question will be remitted.
Can the union be held vicariously liable?
o Canfor says the union should be held liable for authorize and direct its
members to go to the mill entrance and engage in political protest, since
these acts were so connected to the illegal strike.
the original board believed it was without jurisdiction to hear this
argument, but this is incorrect
o basicaly, it is an open quetion whether the HEU violated the code even if it
idid not authorize illegal picketing by its members.
o normally when union or employer breachs the code, it is because of the
actions of the members, not the institution itself
manager illegal terminates, for example. o often the institution will argue that the individual member acted without their
knowledge and authorization, and so the union or employer should not be
o the board does have the jurisdiction to find a union h as breached the Code
where its members have negaged in illegal picketing, includig where the union
did not authorize the illegal picketing
union has responsibility to ensure its members