Class Notes (809,125)
Canada (493,536)
JS380 (30)
Lecture 4

lecture 4.docx

7 Pages
Unlock Document

University of Regina
Justice Studies
Stefan Idziak

Lecture 4: Regulation of Picketing  Picket lines often focus of industrial conflict  Primary picketing occurs at the employer place of business, while secondary piceting occurs elsewhere.  Most statutes do not deal explicitly with picketing, leaving the courts with a large role to play 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 courts.  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 employer 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 [1975] BCLRB  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. Ratio  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 pickets Primary Picketing  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 [1976] SCC Facts  D charged under trespass acts for pickeitng inside a shopping center. Analsyis- Dickson:  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 Dissent- Laskin  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 ratio  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 Aftermanth  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 appears.  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 Secondary Picketing  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 se o must picket own employer, and must not extend the dispute to customers, suppliers, etc  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 replaced 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 protected o and signal effect picketing, which won't always be protected. Pepsi-Cola Canada Beverages v. Retail, Wholesale and Department Store Union (2002) SCC Facts  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
More Less

Related notes for JS380

Log In


Don't have an account?

Join OneClass

Access over 10 million pages of study
documents for 1.3 million courses.

Sign up

Join to view


By registering, I agree to the Terms and Privacy Policies
Already have an account?
Just a few more details

So we can recommend you notes for your school.

Reset Password

Please enter below the email address you registered with and we will send you a link to reset your password.

Add your courses

Get notes from the top students in your class.