In a recent decision from the Supreme Court of Canada, the Court has ruled that secondary picketing is lawful unless it involves tortious or criminal conduct.
In Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., 2002 SCC 8, the Supreme Court considered the activities of the RWDSU during a lawful strike and lockout at one of the Peps-Cola’s plants.
In this case, the union went on strike and the employer, locked out employees and brought in replacement workers. As the strike grew increasingly bitter, the union’s strike activities spread to “secondary” locations, where the union and its supporters picketed retail outlets to prevent the delivery of Pepsi products; carried picket signs in front of hotel where replacement workers were staying; and convened outside the homes of some of Pepsi’s management personnel and chanted slogans, screamed insults, and uttered threats of harm.
As a result of the union’s “secondary” picketing, Pepsi applied, and was granted, two injunctions. The injunctions restrained the union from picketing at the secondary locations, as well as restraining the union from picketing at the residences of Pepsi’s employees. The union appealed parts of the order on the basis that it breached the strikers’ rights to freedom of expression and association under the Canadian Charter of Rights and Freedoms.
At the Saskatchewan Court of Appeal, the Court upheld the union’s appeal in part. The majority upheld the part of the injunction which prevented the union from congregating at the residence’s of Pepsi’s employees, as these activities were found to have amounted to tortious conduct. However, the section of the order restraining the union from picketing at any location other than Pepsi’s premises was quashed, thus allowing the union to engage in peaceful picketing at secondary locations. Pepsi appealed to the Supreme Court of Canada.
At the Supreme Court, the Court ruled that secondary picketing is lawful unless it involves tortious or criminal conduct. The Court determined that whenever the legality of picketing is an issue, there are competing interests of freedom of expression versus the excessive economic and other harm caused to the employer and third parties as a result of such expression. The Court noted (at para 32-33):
“Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression, enshrined in section 2(b) of the Charter. This Court’s jurisprudence establishes that both primary and secondary picketing are forms of expression, even when associated with tortious acts …. The Court , moreover, has repeatedly reaffirmed the importance of freedom of expression. It is the foundation of a democratic society …. The core values which free expression promotes include self-fulfilment, participation in social and political decision-making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one’s circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one’s life and perhaps the wide social, political and economic environment.”
“Free expression is particularly critical in the labour context. As Cory J. observed for the Court in UFCW, Local 1518 v. Kmart Canada Ltd.,  2 S.C.R. 1083, ‘[for employees, freedom of expression becomes not only an important but an essential component of labour relations’ (para. 25). The values associated with free expression relate directly to one’s work. A person’s employment, and the conditions of their workplace, inform one’s identity, emotional health, and sense of self-worth: Reference Re Public Service Employee Relations Act (Alta.),  1 S.C.R. 313; Kmart, supra.”
The Court rejected the notion that secondary picketing is illegal per se. It also rejected the position that secondary picketing should be barred except for “allied” enterprises (enterprises that are not necessarily the primary workplace of the employees, but are nonetheless owned by the same employer).
The Court concluded that the best approach regarding the legality of picketing was to apply the “Wrongful Action Model”. The wrongful action model makes secondary picketing illegal only when the conduct is tortious or criminal. In other words, in the absence of specific legislation to the contrary, all peaceful secondary picketing is lawful.
The Court went on to consider a number of principles that supported its election of the”Wrongful Action Model”, including the fact that the Model conforms to the methodology applied by the Canadian Charter of Rights and Freedoms (at para 67):
“While freedom of expression is not absolute, and while care must be taken in the labour context to guard against extending the more sever effects of picket lines beyond the employer, if we are to be true to the values expressed in the Charter our statement of the common law must start with the proposition that free expression is protected unless its curtailment is justified. This militates against a rule that absolutely precludes secondary picketing, whether harmful or benign, disruptive or peaceful. The preferred methodology is to begin with the proposition that secondary picketing is prima facie legal, and then impose such limitations as may be justified in the interests of protecting third parties.”
The Court also determined that the Wrongful Action Model protected the value of freedom of expression; avoided placing excessive emphasis on protection from economic harm; was adequately flexible; was clearer and more rational than other approaches; applied equally to primary and secondary picketing situations and to labour and non-labour situations; maintained the balance of power between unions and management; avoided undue harm to neutral third parties; and, offered adequate protection to employers.
Finally, the Court determined that picketing is not subject to an injunctive relief unless accompanied by the commission of a tort actionable at the instance of the primary company. In other words, an employer will not be able to seek an injunction unless a tort has been committed by the union against that employer. The Court stated (at para 113): “This does not mean that Pepsi-Cola has no ability to maintain an action for injunctive relief in a secondary picketing situation. It simply means that Pepsi-Cola would have to base its claim on a specific tort.”
The Court concluded by noting that it was unlawful for the union to demonstrate outside the homes of Pepsi’s management personnel because that conduct was tortious. As such, it upheld that portion of the injunction as well-founded.
In sum, in this important decision, the Supreme Court of Canada has determined that, unless secondary picketing is prohibited through legislation, it is generally lawful when it does not involve tortious or criminal conduct.
It is important to note that this decision is of limited effect in British Columbia for provincially regulated employers. In British Columbia, provincially regulated employers are governed by the Labour Relations Code. Section 65 of the Code prohibits secondary picketing, unless such picketing is specifically permitted after application is made to the Labour Relations Board. In contrast, the Canada Labour Code, which governs federally regulated employers, contains no prohibition against secondary picketing.
Thus although the RWDSU v. Pepsi-Cola, supra, decision will greatly affect federally regulated employers in British Columbia, for provincially regulated employers, secondary picketing continues to be prohibited, unless specifically permitted by the Labour Relations Board.
(click here for full text of the judgment)