Lecture 4: Regulation of Picketing
Picket lines often focus of industrial conflict
Primary picketing occurs at the employer place of business, while secondary piceting
Most statutes do not deal explicitly with picketing, leaving the courts with a large role
o typically left for the courts to determine whether something is picketing
so while Board decide whether something is a strike, picketing is left to
boards determine whether or not something is a lawful strike, but the
content of the strike is out of their hand
BC does define picketing
o has a comprehensive set of provisions and definitions that deal with picketing,
and determine when picketing can and cannot take place
o this was an attempt to move pickeitng to the labour board.
o so s. 1 defines picketing
attending at or near a place of business for the purpose of persuading
people not to etner the business/buy products/do business with the
o s. 65 regulates picketing
permitted at the primary site of the employees
and secondary picketing permitted, but only at "allies"
Some jurisdictions have given Board more remedial authority
o Ontario- Board can issue cease and desist order where someone does
anything that will engage in an unlawful strike.
o Alberta- Picketing restricted to the employer's business.
Board has wide range of dispute-related misconduct remedies.
During "days of Protest", senior Union officials told people to stay at home, which the
Board found violated the statute which doesn't allow people to do things that will
cause an illegal strike.
o Basically, if the strike was legal the content of that strike was for the courts
o but the board does have power to enforce against illegal strikes.
o due to charter concerns, the board recognized it should go no farther than
ensuring an unlawful strike does not occur.
Canex Placer Limited v. Canadian Association of Industrial, Mechanical and Allied Workers
during legal strike, workers fully blocked access to mine, may have been some
isolated threats of violence
Employer wanted order prohibiting
Analsyis - Weiler
Picket here illegal, since it invovles Criminal prohibition on assualt and threats of
violence, as well as the Highway Act in obstructing traffic
Board's job is to deal with regulation of picketing, while up to courts to handle civil
and criminal law features.
some have argued that the board should deal with violence on the picket line,
because otherwise employer may be able to back-door the labour board and use the
criminal and civil systems. but this would have serious consittutional problems.
o Board competent to enforce the Labour code, but not to enforce general civil
or criminal law.
Violence on the picket line is a matter for the courts, not the labour board
Labour Board only competent to enforce labour code, not to assess the content of
typically Boards and courts allow wider scope for picketing at the place of business.
where timely, only restrictions based on tort and criminal law.
o cannot assault, trespass or obstruct in principle, but the reality is more
nuance, and court recongizes that effective picketing requires a certain
interference with the civil and legal rights of the owners
In BC you cannot be sued for trespass by picketing in the labour context in an area
that is generally accessible by the public
o but cannot enter into dangerous or private areas
o typically you stand in driveway
Board regulates common site picketing
o where more than one employer shares a common area
o Board can make order dealing with this type of situation
Harrison v. Carswell  SCC
D charged under trespass acts for pickeitng inside a shopping center.
D argues that the right to peacefully picket outside of the business in pursuance of a
lawful strike is more important than the owner's property rights
while judges may innovate, they must do so very slowly and in a limited way.
Common law has long recognized the right of the individual to his or her property
The trespass act makes clear that entering without permission is trespass, and if
anyone is going to change this, it should be legislature
Shopping center has a sort of public nature
o free to access for most people, subject to lawful behavior
the employee was in a lawful strike and was peacefully pricketing in front of usiness
o employer would not have been able to sto pthis.
Landlord moved her to public sidewalk, she wouldn't so charged under trespass.
While the Peters case esalished that landowners may have sufficient possesssion
over sidewalks to support trespassing, this isn't a definitive answer to a labour strike
o can't be applied mechanistically Here the employee should be allowed to picket wihtout disturbing or obstructing
others, as she is a member of the public and also an employee in a lwaful strike
o she has a lawful interest in pursuing legitimate claims against her employer
through peaceful picketingg
Majority- if picketing involves a trespass on the land of a third-party, it can be sued
for under trespass
Laskin - if the pickeing is otherwise lawful and peaceful, the employee does have
soem rights to picket on land of a public nature
Manitoba trespass act overruled majority and allowed this kind of strike.
OLRA had a provision for a while that expressly allowed pickeitng during a legal
strike on premises to which the public normallly had access, but not any more it
In the long run, this "victory" was remedies by statute
o s. 66 in BC
o cannot sue someone for trespass that is ordinarily accessible by the public
when in the context of a labour dispute
picketing a customer, supplier, competitor of the employer
may sometimes be more effective than primary picketing, particuarly where the
secondary site is more public
o ie. picketing at the retail elevel
Hersees is the classic case
o union engaged in secondary picketing, which the ONCA finds to be illegal per
o must picket own employer, and must not extend the dispute to customers,
BC overrode this via statutory provisions which permitted picketing of an ally
o secondary picketing OK where the target is an ally
Eventually, complete ban on secondary picketing overridden by s. 2(b)
K-Mart 1999 SCC
Union members were engaged in a lawful strike with 2 branches of the K-Mart chain
those members went to a third, non-unionized store, to hand out leaflets in an
attempt to dissuade shoppers
o they were not disurpting operations or anything
In BC, this falls within the defintion of picketing
o they were outside a business trying to stop people from coming in
Union challenged under s. 2(b)
o SCC agreed, and struck down that defnitnion of picketing, which was never
o so now we have no express definition of picketing
Court found leafleting to be important expression o customers would be allowed to protest out front, why would we restrict
employees in the course of a lawful strike?
o 2(b) designed to protect activities like picketing
Court makes a distinction between informational picketing, which is lawful and
o and signal effect picketing, which won't always be protected.
Pepsi-Cola Canada Beverages v. Retail, Wholesale and Department Store Union (2002) SCC
during legal strike, strikers picketed some retail stores which sold Pepsi products but
were not connected to the Pepsi-Cola Company
Pepsi initially granted an interolcutory injunction banning secondary picketing. Sask
CA struck down, SCC agr