On October 29, 2003, a reconsideration panel of the BC Labour Relations Board issued a decision clarifying the line between picketing and consumer leafleting. This distinction is important because picketing is regulated by the BC Labour Relations Code, while leafleting is protected under the Canadian Charter of Rights and Freedoms.
The case involved a complaint by the Overwaitea Food Group that certain individuals were engaged in unlawful picketing activity outside some of its retail stores. The persons in question were gathered in front of the store entrances, wearing sandwich boards and carrying placards which asked shoppers not to shop at the stores. The original panel of the LRB ruled that this activity was leafleting, not picketing, and that it was therefore permissible. The original panel’s decision was based on the view that there was insufficient evidence that the signs and placards had resulted in the “signal effect” traditionally associated with picketing, whereby people see placards, assume there is a labour dispute, and turn away in solidarity.
The reconsideration panel of the Board rejected the original panel’s approach, stating that it would lead to uncertainty and prolonged litigation. In its place, the reconsideration panel adopted a “bright line” approach to distinguish between leafleting and picketing. Wearing placards or signs at or near a place of business will generally constitute picketing. Unattended signs or banners, or the handing out of leaflets, generally will not.
The Board summarized its approach to picketing as follows:
First, the alleged picketing must be in respect to a labour dispute or matter over which the Board has jurisdiction: Section 67. “Dispute” is defined in Section 1 of the Code. If there is no “dispute”, the impugned activity does not fall under the picketing provisions of the Code: Re Daishowa Inc. and Friends of the Lubicon et al. (1988), 158 D.L.R. (4th) 699 (Ont. Gen. Div.);
In order to be constitutionally protected consumer leafleting, the conduct must conform with the conditions set out in Kmart for permissible leafleting, para. 58;
If the impugned conduct does not constitute constitutionally protected leafleting, it can be regulated under the Code. In determining whether “conventional” picketing is present, the Board will consider factors such as the number of individuals participating, their location, (i.e., proximity to entrances of the business), the nature of their activities (i.e., walking back and forth), the presence or absence of placards, or sign boards. This is a non-exhaustive list of attributes which characterize “conventional” or “traditional” picketing and, if present, will be regulated under Part 5 of the Code. Leafleting is excluded from this regulation of conventional picketing.
Harris & Company were counsel for the successful employer.