SECONDARY PICKETING NOW LEGAL, BUT SIGNIFICANT RESTRICTIONS APPLY
The Supreme Court of Canada has declared that secondary picketing is no longer illegal under the common law.
It had long been a common law doctrine that striking employees could only picket the employer and allied or related employers. The Supreme Court of Canada has now changed that. There can be picketing of employers and premises that are not directly involved in the strike.
The case in question concerns members of the Retail, Wholesale and Department Store Union on strike against Pepsi-Cola Canada. They picketed the plant but they also picketed retail outlets which stock Pepsi. The Court upheld their ability to picket in both places.
The Court found that the freedom of expression of the individual employees had to be balanced with the economic interests of other members of society.
Now all secondary picketing is permitted “unless it can be shown to be wrongful or unjustified” (para. 62).
What does wrongful or unjustified mean? First, it clearly means that picketing can not occur if it involves criminal activity.
Second, picketing will be enjoined if it involves torts (i.e. civil wrongs). Supreme Court of Canada makes it quite clear that it will grant injunctions to prevent torts, and it then discusses the types of torts that might commonly be relied on.
The first two are nuisance and defamation (or libel). The Supreme Court of Canada says that employer injunctions based on those torts will control most coercive picketing. “They will protect free access to private premises and thereby protect the right to use ones property” (para. 103).
The Court also states that the tort of interference with contractual relations can be relied on. If the picketing is causing problems for the pre-existing business relationship of a third party, that may be enough to warrant an injunction and/or a lawsuit for damages (para. 116).
In sum, the Courts will use injunctions to make sure that “the conflict will not escalate beyond the actual parties” (para. 42) and that third parties are “protected from undue suffering”, but not “insulated entirely” (para. 44).
This case means that peaceful and orderly picketing can now be used by unions in many more locations.
For the full text of the case see: www.lancasterhouse.com/decisions/2002/jan/scc-pepsi.htm
