Subject: AUT: Canadian Court backs 'secondary picketing'
Date: Fri, 1 Feb 2002 12:12:33 +1100


January 25, 2002

Court backs 'secondary picketing'
Union wins battle: High court protects
strikers' freedom of expression

Luiza Chwialkowska National Post OTTAWA - Striking workers are entitled to
punish "innocent third parties" by picketing businesses who deal with their
employer, the Supreme Court of Canada ruled yesterday.

The free speech rights of labour unions trump private business interests,
the court declared in a 9-0 decision that sweeps aside a 1963 precedent
banning so-called "secondary picketing" that harms businesses not involved
in a labour dispute.

"Some economic harm to third parties is anticipated by our labour relations
system as a necessary cost of resolving industrial conflict," wrote Chief
Justice Beverley McLachlin and Mr. Justice Louis LeBel. Economic rights are
> not constitutionally protected, and take a back seat to the important
right
> to freedom of expression, the court said.
>
> "Free expression in the labour context benefits not only individual
workers
> and unions, but also society as a whole," the judges wrote, noting that
> issues at stake in labour disputes often go beyond wages into issues of
> parental leave, health benefits and retirement benefits, a broad impact on
> society.
>
> The decision will likely lead to a surge in secondary picketing in
> provinces that do not have explicit legislation against secondary strikes
> but have relied on longstanding precedent to prevent the practice, namely
> Ontario, Saskatchewan, P.E.I. and Nova Scotia, said John Baigent, lawyer
> for the Canadian Labour Congress, which intervened in the case.
> Other provinces will face a high hurdle in defending any laws that
restrict
> secondary picketing in light of yesterday's ruling.
>
> "I am sure that union lawyers in those jurisdictions will challenge the
> more restrictive provisions on secondary picketing and argue that under
the
> Charter, those are unreasonable restraints on freedom of expression and
> will rely on this analysis," said Mr. Baigent.
>
> The decision arises out of a bitter 1997 strike in which employees of a
> Pepsi-Cola bottling plant in Saskatoon attempted to disrupt the delivery
of
> soft drinks to retailers with pickets that turned violent at times.
>
> Pepsi-Cola obtained an injunction against the pickets and against
> demonstrations in front of managers' homes where workers chanted slogans,
> screamed insults and uttered threats.
> Saskatchewan does not have a law against secondary pickets, but the Court
> of Queen's Bench relied on common law precedent to order an injunction
> against the pickets.
>
> The Supreme Court yesterday rejected the influential 1963 Ontario Court of
> Appeal precedent, known as the Hersees case, as anachronistic, based on
> "distrust of unions," and inconsistent with the Charter of Rights and
> Freedoms which should be used to "guide" the common law.
>
> "Common law rules ensure the protection of property interests and
> contractual relationships. Nevertheless, where these laws implicate
Charter
> values, these values may be considered," they wrote.
>
> The court also gave a narrow interpretation of its own reasoning in a 1986
> secondary picketing case known as the Dolphin Delivery case, in which it
> said picketing "should not be permitted to harm others."
>
> In that decision, "harm" meant breach of contract or violence, not
economic
> losses, the court said.
>
> "I think it's important that the court has emphasized that even activities
> such as picketing with a direct economic impact are subject to Charter
> guarantees on freedom of expression," said Mr. Baigent.
>
> Larry Kowalchuk, lawyer for the members of the Retail, Wholesale and
> Department Store Union, who fought the injunction, said the decision is
> particularly useful to unions and activists targeting large multi-national
> corporations that do business in many locations.
> "This says if you take the conflict somewhere else, we will follow. You
> can't hide behind location. We will follow you and inflict economic harm,"
he said.

The judges defended free speech, "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 wider social, political, and
economic environment," he said.

Mr. Kowalchuk said the wording offers a "profound" encouragement for
anti-globalization protesters.

"It certainly suggests that even post-Sept. 11, governments will have to
rethink the measures they will take to interfere with free speech," he
added.

Robert Richards, lawyer for Pepsi-Cola, said pickets often involve "an
element of coercion" against customers or business associates and can lead
to "substantial" losses for third parties.

He predicted pressure would mount on provincial governments to enact new
laws in provinces that in the past relied on the common law.

The court said legislatures are welcome to draft "appropriate limits" on
secondary picketing.

The ruling bars strikers from picketing outside private homes of managers,
or committing illegal acts such as violence, or acts that lead to civil
liability, such as destruction of property, trespassing, or causing breach
of contract.

lchwialkowska-AT-nationalpost.com
_______________________________________________




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