RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 SCR 573
Retail, Wholesale and Department Store Union, Local 580, Al Peterson and Donna Alexander Appellants
v.
Dolphin Delivery Ltd. Respondent
and
Attorney General of Canada, Attorney General of British Columbia, Attorney General for Alberta and Attorney General of Newfoundland Interveners
indexed as: rwdsu v. dolphin delivery ltd.
1984: December 6, 7; 1986: December 18.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Wilson and Le Dain JJ.
on appeal from the court of appeal for british columbia
Constitutional law -- Charter of Rights -- Freedom of expression -- Interlocutory injunction against secondary picketing -- Application based on common law rule against inducing breach of contract -- Whether injunction offending Charter right to freedom of expression -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 32(1) -- Constitution Act, 1982, s. 52(1).
Appellant was the federally certified bargaining agent for the locked out employees of Purolator, an Ontario based courier. Prior to the lockout, respondent made deliveries for Purolator in its area and afterwards, for Supercourier, a company connected with Purolator. Appellant applied to the British Columbia Labour Relations Board for a declaration that respondent and Supercourier were allies of Purolator in their dispute with appellant. Such a finding would have rendered the picketing of respondent's business premises lawful, and consequently would have affected its business in that its collective agreement provided that its employees' refusal to cross a lawful picket line was not a violation of the agreement or grounds for disciplinary action or discharge. When the Board declined to hear the application for want of jurisdiction, the labour relations of the appellant being within federal jurisdiction, the legality of appellant's proposed picketing then fell for determination under the common law because the Canada Labour Code was silent on the issue. No picketing occurred at respondent's premises as respondent was granted a quia timet injunction which was upheld on appeal. At issue here is whether secondary picketing in a labour dispute is protected as freedom of expression under s. 2(b) of the Charter and accordingly not the proper subject of an injunction to restrain it.
Held: The appeal should be dismissed.
Per Dickson C.J. and Estey, McIntyre, Chouinard and Le Dain JJ: All picketing involves some form of expression and enjoys Charter protection unless some action on the part of the picketers alters its nature and removes it from Charter protection. Charter protection of this freedom does not encompass violence, threats of violence or other unlawful acts. The picketing at issue, although intended to bring about economic pressure and to induce the common law tort of breach of contract, was protected by the Charter.
The Charter applies to the common law. The language of s. 52(1) of the Constitution Act, 1982 clearly includes the common law and a construction of that section that would exclude the common law from the Charter's application would be wholly unrealistic.
The Charter does not apply to private litigation completely divorced from any connection with government. Section 32 specifies that the Charter applies to the legislative, executive and administrative branches of government: their actions are subject to the Charter whether invoked in public or private litigation. An order of the Court, however, cannot be equated with government action for the purposes of Charter application notwithstanding political theory. The Courts, while bound by the Charter, act as neutral arbiters and to regard a court order as an element of government action necessary to invoke the Charter would unduly widen the scope of the Charter's application to virtually all litigation.
Although government action is generally dependant on statutory authority, it may rely as well on the common law as in the case of the prerogative. The Charter will apply to the common law where the common law is the basis for some governmental action which is alleged to have infringed a guaranteed right or freedom.
It is difficult and probably dangerous to attempt to define with narrow precision that element of government intervention necessary to bring the Charter into play by private litigants in private litigation. It would seem that the Charter would apply to delegated legislation such as regulations, orders in council, possibly municipal by-laws and by-laws and regulations of other creatures of Parliament and the legislatures. Where government action of such nature is present, and where a private litigant relies on it to cause an infringement of the Charter rights of another, the Charter applies. Where, however, a private party sues another relying on the common law and where no government action is relied upon to support the action, the Charter will not apply.
The Charter did not apply to the case at bar. This litigation was between purely private parties and did not involve any exercise of or reliance on governmental action which would invoke the Charter. The application for the injunction was supported in this Court solely on the basis of the common law tort of inducing a breach of contract. Had the Charter applied, s. 1 of the Charter would have been effective to justify the granting of the injunction.
Per Beetz J.: For reasons stated by the majority of the British Columbia Court of Appeal, the picketing enjoined here would not have been a form of expression and consequently no question of infringement of s. 2(b) of the Charter could arise. The reasons of McIntyre J. were otherwise agreed with.
Per Wilson J.: On a s. 1 analysis the purpose and objectives of a common law principle must be ascertained through an objective approach in the same way as the purposes and objectives of an impugned piece of legislation are ascertained. Two distinct questions must be answered in this case. First, does the tort of inducing breach of contract represent a reasonable limit under s. 1 on freedom of expression in the labour relations context? Second, if the tort represents a reasonable limit under s. 1, should injunctive relief be granted in this case? If the tort does not survive the first question, the conduct is not wrongful and no injunction can issue. If the tort survives the first question, the facts must be considered to see whether the other requirements for the award of an interlocutory injunction are present, i.e., whether the balance of convenience favours the plaintiff. The reasons of McIntyre J. were otherwise agreed with.
Cases Cited
By McIntyre J.
Considered: Re Blainey and Ontario Hockey Association (1986), 1986 145 (ON CA), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513; referred to: Abrams v. United States, 250 U.S. 616 (1919); Boucher v. The King, 1950 2 (SCC), [1951] S.C.R. 265; Switzman v. Elbling, 1957 2 (SCC), [1957] S.C.R. 285; Reference re Alberta Statutes, 1938 1 (SCC), [1938] S.C.R. 100; Thornhill v. Alabama, 310 U.S. 88 (1940); Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941); Channel Seven Television Ltd. v. National Association of Broadcast Employees and Technicians, 1971 968 (MB CA), [1971] 5 W.W.R. 328; Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103; Cat Productions Ltd. v. Macedo, 1985 5605 (FC), [1985] 1 F.C. 269.
By Wilson J.
Referred to: R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103.
Statutes and Regulations Cited
Canada Labour Code, R.S.C. 1970, c. L-1.
Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 15(1), 32(1).
Constitution Act, 1867, ss. 12, 16, 132.
Constitution Act, 1982, s. 52(1).
Human Rights Code, 1981, S.O. 1981, c. 53, s. 19(2).
Labour Code, R.S.B.C. 1979, c. 212, ss. 85(3), 88.
Authors Cited
Gibson, Dale. "The Charter of Rights and the Private Sector" (1982), 12 Man. L.J. 213.
Gibson, Dale. "Distinguishing the Governors from the Governed: The Meaning of 'Government' under Section 32(1) of the Charter" (1983), 13 Man. L.J. 505.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Manning, Morris. Rights, Freedoms and the Courts. Toronto: Edmond-Montgomery, 1983.
McLellan, A. Anne and Bruce P. Elman. "To Whom Does the Charter Apply? Some Recent Cases on Section 32" (1986), 24 Alta. L. Rev. 361.
Mill, John Stuart. "On Liberty". In On Liberty and considerations on Representative Government. Edited by R. B. McCallum. Oxford: Basil Blackwell, 1946.
Milton, John. Areopagitica; A Speech of Mr. John Milton for the Liberty of Unlicenc'd Printing, to the Parliament of England. London: 1644.
Swinton, Katherine. "Application of the Canadian Charter of Rights and Freedoms". In W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms--Commentary. Toronto: Carswells, 1982.
Tarnopolsky, Walter S. "The Equality Rights". In W. S. Tarnopolsky and G.-A. Beaudoin, eds., The Canadian Charter of Rights and Freedoms--Commentary. Toronto: Carswells, 1982.
Weiler, Paul C. Reconcilable Differences. Toronto: Carswells, 1980.
APPEAL from a judgment of the British Columbia Court of Appeal, 1984 750 (BC CA), [1984] 3 W.W.R. 481, 52 B.C.L.R. 1, 84 CLLC ¶14,036, dismissing an appeal from an order of Sheppard L.J.S.C., [1983] B.C.W.L.D. 100, granting an interlocutory injunction. Appeal dismissed.
F. Schroeder, for the appellants.
Peter Gall and Donald Jordan, for the respondent.
James M. Mabbutt and Peter K. Doody, for the intervener the Attorney General of Canada.
Jack Giles, Q.C., and Robert McDonell, for the intervener the Attorney General of British Columbia.
Brian R. Burrows, for the intervener the Attorney General for Alberta.
James L. Thistle and Deborah E. Fry, for the intervener the Attorney General of Newfoundland.
The judgment of Dickson C.J. and Estey, McIntyre, Chouinard and Le Dain JJ. was delivered by
McIntyre J.--This appeal raises the question of whether secondary picketing by members of a trade union in a labour dispute is a protected activity under s. 2(b) of the Canadian Charter of Rights and Freedoms and, accordingly, not the proper subject of an injunction to restrain it. In reaching the answer, consideration must be given to the application of the Charter to the common law and as well to its application in private litigation.
The respondent, Dolphin Delivery Ltd. ("Dolphin"), is a company engaged in the courier business in Vancouver and the surrounding area. Its employees are represented by a trade union, not the appellant. A collective agreement is in effect between Dolphin and the union representing its employees, which provides in clause 8: "it shall not be a violation of this agreement or cause for discipline or discharge if an employee refuses to cross a picket line which has been established in full compliance with the British Columbia Labour Code". The appellant trade union is the bargaining agent under a federal certification for the employees of Purolator Courier Incorporated ("Purolator"). That company has a principal place of operations in Ontario but, prior to the month of June, 1981 when it locked out its employees in a labour dispute, it had a place of operations in Vancouver. That dispute is as yet unresolved. Prior to the lock-out, Dolphin did business with Purolator making deliveries within its area for Purolator. Since the lock-out, Dolphin has done business in a similar manner with another company, known as Supercourier Ltd. ("Supercourier"), which is incorporated in Ontario. There is a connection between Supercourier and Purolator, the exact particulars of which are not clearly established in the evidence, but it appears that Dolphin carries on in roughly the same manner with Supercourier as it had formerly done with Purolator and about twenty per cent of its total volume of business originates with Supercourier. This is about the same percentage of business as was done with Purolator before the lock-out.
In October of 1982 the appellant applied to the British Columbia Labour Relations Board for a declaration that Dolphin and Supercourier were allies of Purolator in their dispute with the appellant. A declaration to this effect would have rendered lawful the picketing of the place of business of Dolphin under British Columbia legislation. The Board, however, declined to make the declaration sought, on the basis that it had no jurisdiction because the union's collective bargaining relationship with Purolator and any picketing which might be done were governed by the Canada Labour Code, R.S.C. 1970, c. L-1. In the face of this finding it became common ground between the parties that where the Labour Code of British Columbia, R.S.B.C. 1979, c. 212, does not apply, the legality of picketing falls for determination under the common law because the Canada Labour Code is silent on the question. In November of 1982 the individual appellants, on behalf of the appellant union, advised Dolphin that its place of business in Vancouver would be picketed unless it agreed to cease doing business with Supercourier. An application was made at once for a quia timet injunction to restrain the threatened picketing. No picketing occurred, the application being made before its commencement.
The matter came before Sheppard L.J.S.C. and on November 30 he granted the injunction in these terms:
...that the Defendants and each of them and anyone acting for them or under their instructions, and anyone who has knowledge of such Order, be restrained from picketing or causing to be picketed the Plaintiff's place of business or near 30 West Pender Street, Vancouver, or elsewhere in the Province of British Columbia pending the trial or other disposition of this action.
He declined to find that Purolator and Dolphin were in fact allies, and said:
On the material before me, I cannot agree with Counsel's interpretation of the facts. Clearly, the plaintiff is owned by persons who have no relationship with the persons who own Supercourier or Purolator. On a balance of probabilities and on the material before me, I find that even if Supercourier is a subterfuge set up by Purolator to circumvent the labour dispute, (a hypothesis which I find not to have been proven on the material) the plaintiff had no knowledge of this arrangement.
He then went on to say:
On these facts, it appears to me that one of the leading authorities is the Moffat Communications case (supra) and that what the Union proposes in picketing the plaintiff applicant is secondary picketing for the purpose either of the tort of inducing breach of contract, or of the tort of civil conspiracy in that the predominant purpose of the picketing is to injure the plaintiff rather than the dissemination of information and the protection of the defendant's interest. Accordingly, I find that the plaintiff is entitled to an injunction to restrain the picketing.
The Court of Appeal (Taggart, Hutcheon and Esson JJ.A.) [1984 750 (BC CA), [1984] 3 W.W.R. 481] dismissed the appeal. The appellant did not seek to dispute the application of the common law by the Chambers judge. It chose to advance its argument under the Charter. The Charter had not been raised before the Chambers judge but was argued in the Court of Appeal, the respondent raising no objection to its introduction at that point. The position advanced by the appellant in the Court of Appeal was that the basis for the granting of the injunction, that is, the common law principles adopted and applied by the Chambers judge, had the effect of infringing the fundamental freedoms of the appellant guaranteed under s. 2 of the Charter, particularly s. 2(b), freedom of expression, and s. 2(d), freedom of association.
Esson J.A., speaking for himself and Taggart J.A., concluded that neither freedom of expression nor freedom of association could be invoked to protect the activity being restrained, and that even if freedom of expression of the appellant were infringed it would constitute a reasonable limitation under s. 1 of the Charter. Hutcheon J.A. was of the opinion that peaceful picketing is a protected form of expression under the Charter. He was of the view, however, that in so far as the purpose of the picketing was to induce a breach of contract, restraint of such picketing might be a reasonable limit under s. 1. He rejected the application of the tort of civil conspiracy in a labour dispute. He agreed with the majority as to the question of freedom of association. He considered that it should be left to the Chambers judge to decide whether the picketing would induce a breach of contract and also whether Dolphin and Purolator were allies. A finding that they were allies would have excluded, in his opinion, operation of s. 1 of the Charter because picketing of an ally would be an exercise of freedom of expression. In the result, because one basis for the injunction had been shown, he agreed that the appeal should be dismissed.
In this Court, the appellants abandoned any appeal on the basis that the injunction infringed its freedom of association under s. 2(d) of the Charter. The appeal was limited to the claim that freedom of expression, secured under s. 2(b) of the Charter, had been infringed and that such an infringement was not a reasonable limit imposed by law under s. 1. The respondent contended that no freedom of expression had been infringed since picketing of the nature contemplated here was not a form of expression and, in the alternative, the injunction would constitute, in any event, a reasonable limit under s. 1.
The task of the Court in dealing with this case is made difficult by the way it developed in the courts below. The application for the injunction was made before any picketing occurred. The evidence was limited to affidavits, and some cross-examination upon them. Findings of fact on the crucial question of the nature of the apprehended picketing are limited. Ordinarily, the Court would not entertain constitutional questions without a more secure factual basis upon which to rest the argument. Because of the nature of this case, however, the Court has felt obliged to do so. I refer below to the findings of fact and to certain assumptions upon which the Court's judgment will rest.
It was said by Esson J.A. in the Court of Appeal [at p. 499]:
The injunction is directed against secondary picketing, i.e., picketing of the premises and operation of some one who carries on business with the employer but who is a third party to the dispute between the union and employer. The chamber judge considered the question whether the relationship between the plaintiff, Super-Courier and Purolator was such that the plaintiff should not be considered a third party. He concluded that it was a third party. That conclusion must, for the purposes of this appeal, be accepted.
This finding of fact was contested. Counsel for the appellant contended that no such finding could be inferred from the reasons of the Chambers judge. I am of the view, however, from a perusal of the Chambers judge's reasons earlier quoted, that Esson J.A.'s comment was justified and I would accept as a fact that the respondent was found by the Chambers judge to be a third party to the dispute. In addition, the Chambers judge found that the purpose of the picketing was tortious and that the dominant purpose was to injure the plaintiff rather than the dissemination of information and protection of the defendant's interest.
- Hutcheon J.A. in the Court of Appeal also seems to have recognized the difficulty regarding the factual underpinning. He said [at p. 484]:
The interim injunction was granted before any picketing took place. The proper assumptions to be made are that the picketing would be peaceful, that some employees of Dolphin Delivery and other trade union members of customers would not cross the picket line, and that the daily business of Dolphin Delivery would be disrupted to a considerable extent.
These assumptions are reasonable and I adopt them. In summary then, it has been found that the respondent was a third party, that the anticipated picketing would be tortious, that the purpose was to injure the plaintiff. It was assumed that the picketing would be peaceful, that some employees of the respondent and other trade union members of customers would decline to cross the picket lines, and that the business of the respondent would be disrupted to a considerable extent.
The following questions arise:
Does the injunction complained of in this case restrict the freedom of expression secured under s. 2(b) of the Canadian Charter of Rights and Freedoms?
Does the Charter apply to the common law?
Does the Charter apply in private litigation?
If it is found that the injunction does restrict freedom of information, is the limit imposed by the injunction a reasonable limit in accordance with s. 1 of the Charter?
Freedom of Expression
As has been noted above, the only basis on which the picketing in question was defended by the appellants was under the provisions of s. 2(b) of the Charter which guarantees the freedom of expression as a fundamental freedom. Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.
The importance of freedom of expression has been recognized since early times: see John Milton, Areopagitica; A Speech for the Liberty of Unlicenc'd Printing, to the Parliament of England (1644), and as well John Stuart Mill, "On Liberty" in On Liberty and considerations on Representative Government (Oxford 1946), at p. 14:
If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.
And, after stating that "All silencing of discussion is an assumption of infallibility", he said, at p. 16:
Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.
- Nothing in the vast literature on this subject reduces the importance of Mill's words. The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy. The courts have recognized this fact. For an American example, see the words of Holmes J. in his dissent in Abrams v. United States, 250 U.S. 616 (1919), at p. 630:
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.
- Prior to the adoption of the Charter, freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy. Indeed, this Court may be said to have given it constitutional status. In Boucher v. The King, 1950 2 (SCC), [1951] S.C.R. 265, Rand J., who formed a part of the majority which narrowed the scope of the crime of sedition, said, at p. 288:
There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty's subjects or ill-will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill-will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as well as in mortals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally.
In Switzman v. Elbling, 1957 2 (SCC), [1957] S.C.R. 285, where this Court struck down Quebec's padlock law, Rand J. again spoke strongly on this issue. He said, at p. 306:
But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas. Parliamentary government postulates a capacity in men, acting freely and under self-restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shackles. Under that government, the freedom of discussion in Canada, as a subject-matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion. With such dimensions it is ipso facto excluded from head 16 as a local matter.
This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship.
In the same case, Abbott J. said, at p. 326:
The right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy such as ours.
He went on to make extensive reference to the words of Duff C.J. in Reference re Alberta Statutes, 1938 1 (SCC), [1938] S.C.R. 100, at pp. 132-33, strongly supporting what could almost be described as a constitutional position for the concept of freedom of speech and expression in Canadian law, and then said, at p. 328:
Although it is not necessary, of course, to determine this question for the purposes of the present appeal, the Canadian constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate. The power of Parliament to limit it is, in my view, restricted to such powers as may be exercisable under its exclusive legislative jurisdiction with respect to criminal law and to make laws for the peace, order and good government of the nation.
- It will be seen at once that Professor Peter W. Hogg, at p. 713 in his text, Constitutional Law of Canada (2nd ed. 1985), is justified in his comment that:
Canadian judges have always placed a high value on freedom of expression as an element of parliamentary democracy and have sought to protect it with the limited tools that were at their disposal before the adoption of the Charter of Rights.
The Charter has now in s. 2(b) declared freedom of expression to be a fundamental freedom and any questions as to its constitutional status have therefore been settled.
The question now arises: Is freedom of expression involved in this case? In seeking an answer to this question, it must be observed at once that in any form of picketing there is involved at least some element of expression. The picketers would be conveying a message which at a very minimum would be classed as persuasion, aimed at deterring customers and prospective customers from doing business with the respondent. The question then arises. Does this expression in the circumstances of this case have Charter protection under the provisions of s. 2(b), and if it does, then does the injunction abridge or infringe such freedom?
The appellants argue strongly that picketing is a form of expression fully entitled to Charter protection and rely on various authorities to support the proposition, including Reference re Alberta Statutes, supra; Switzman v. Elbling, supra; the American cases of Thornhill v. Alabama, 310 U.S. 88 (1940) (per Murphy J., at p. 95); Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), (per Black J., at p. 302), and various other Canadian authorities. They reject the American distinction between the concept of speech and that of conduct made in picketing cases, and they accept the view of Hutcheon J.A. in the Court of Appeal, in adopting the words of Freedman C.J.M. in Channel Seven Television Ltd. v. National Association of Broadcast Employees and Technicians, 1971 968 (MB CA), [1971] 5 W.W.R. 328, that "Peaceful picketing falls within freedom of speech".
The respondent contends for a narrower approach to the concept of freedom of expression. The position is summarized in the respondent's factum:
We submit that constitutional protection under section 2(b) should only be given to those forms of expression that warrant such protection. To do otherwise would trivialize freedom of expression generally and lead to a downgrading or dilution of this freedom.
Reliance is placed on the view of the majority in the Court of Appeal that picketing in a labour dispute is more than mere communication of information. It is also a signal to trade unionists not to cross the picket line. The respect accorded to picket lines by trade unionists is such that the result of the picketing would be to damage seriously the operation of the employer, not to communicate any information. Therefore, it is argued, since the picket line was not intended to promote dialogue or discourse (as would be the case where its purpose was the exercise of freedom of expression), it cannot qualify for protection under the Charter.
- On the basis of the findings of fact that I have referred to above, it is evident that the purpose of the picketing in this case was to induce a breach of contract between the respondent and Supercourier and thus to exert economic pressure to force it to cease doing business with Supercourier. It is equally evident that, if successful, the picketing would have done serious injury to the respondent. There is nothing remarkable about this, however, because all picketing is designed to bring economic pressure on the person picketed and to cause economic loss for so long as the object of the picketing remains unfulfilled. There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.
Section 1 of the Charter
- It is not necessary, in view of the disposition of this appeal that I propose, to deal with the application of s. 1 of the Charter. It was, however, referred to in the Court of Appeal and I will deal with it here. It will be recalled that the Chambers judge in granting the injunction did so on the basis that the picketing involved the commission of two common law torts, that of civil conspiracy to injure and that of inducing a breach of contract. Hutcheon J.A. in the Court of Appeal said [at pp. 486-87]:
I think that the two torts must be treated differently. The tort of conspiracy to injure has not received acceptance in this province; s. 5 of the Trade-unions Act, 1959 (B.C.), c. 90, repealed the doctrine of civil conspiracy where the trade-union acted in contemplation or furtherance of a labour dispute. It remains in that state today under the Labour Code (s. 89). Section 89 reads:
"89. An act done by 2 or more persons acting by agreement or combination, if done in contemplation or furtherance of a labour dispute, is not actionable unless it would be wrongful without an agreement or combination."
Without attempting to trace the position of the tort of conspiracy in the other provinces, I am satisfied that it warrants this description by Professor Arthurs, "Tort Liability for Strikes in Canada" (1960), 38 Can. Bar Rev. 346, at p. 362.
"The modern tort of conspiracy stands condemned, almost universally, as the vehicle of judicial anti-unionism. Authors throughout the common-law world have denounced it as a "weapon...wielded with transparent partisanship to counter the aspirations of the trade union movement."
It should be noted that in British Columbia the common law tort of conspiracy to injure, as employed in labour disputes, has been abolished by statute and it would not be available as a support for an injunction. I am aware that the labour relations of the appellants are governed by the Canada Labour Code. However, since the Canada Labour Code is silent on the question of picketing, the common law applies, in this case the common law of British Columbia from which the tort of conspiracy has been expunged in labour disputes. In my view then the tort of civil conspiracy to injure may not be relied upon to support the injunction, which therefore must find its sole support from the tort of inducing a breach of contract.
- The question then is: Can an injunction based on the common law tort of inducing a breach of contract, which has the effect of limiting the Charter right to freedom of expression, be sustained as a reasonable limit imposed by law in the peculiar facts of this case. The question of the application of s. 1 of the Charter has been the subject of comment in this Court in earlier cases, for example, Hunter v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; and, more recently, R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. Ordinarily, some evidence will be necessary to enable the Court to decide whether s. 1 should be applied to preserve a limitation on a right, and the burden of proof will lie upon the party supporting the limitation. Dickson C.J. in the Oakes case, however, at p. 138, remarked concerning the need for evidence:
I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self-evident.
This, in my view, is such a case in so far as the need for evidence is concerned. The evidence before the Chambers judge, together with the assumptions and findings referred to above, provide a sufficient basis for the consideration of this question.
- From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed a limitation upon a Charter freedom. A balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute a reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing--picketing of a third party not concerned in the dispute which underlies the picketing. The basis of our system of collective bargaining is the proposition that the parties themselves should, wherever possible, work out their own agreement. Professor Weiler in Reconcilable Differences (Toronto 1980), at pp. 64-65, states:
The basic assumption of our industrial relations system is the notion of freedom of contract between the union and the employer. There are powerful arguments in favour of that policy of freedom of contract. We are dealing with the terms and conditions under which labour will be purchased by employers and will be provided by employees. The immediate parties know best what are the economic circumstances of their relationship, what are their non-economic priorities and concerns, what trade-offs are likely to be most satisfactory to their respective constituencies. General legal standards formulated by government bureaucrats are likely to fit like a procrustean bed across the variety and nuances of individual employment situations.
The freedom to agree logically entails the right to disagree, to fail to reach an acceptable compromise. Most of the time good faith negotiation does produce a settlement at the bargaining table, often without a great deal of trouble. But often enough it does not; and of course it is the failures which generate the visible tumult and shouting. And at that point the collective bargaining system diverges sharply from other components in the market economy.
When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man-hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others. Weiler, supra, at p. 80, again comments:
...strike action is legal only in order to resolve a dispute with an employer about the negotiation of a new collective agreement. Logically a picket line should be legitimate only on such an occasion. As well the only permissible target of the picket line should be the primary employer--that employer with whom the union is negotiating and whom it is trying to compel to make favourable concessions in order to settle the agreement. Putting it the other way, unions should not be permitted to picket the business of a third party. Such a secondary employer is not involved in the primary dispute, it does not have it within its power to make the concessions that will settle the new contract, and thus it should not be the target of a weapon whose legitimate purpose is to extract such economic concessions.
- It should be noted here that in the Province of British Columbia, secondary picketing of the nature involved in this case, save for the picketing of allies of the employer, has been made unlawful by the combined effect of ss. 85(3) and 88 of the British Columbia Labour Code, R.S.B.C. 1979, c. 212, as amended. This statute, of course, does not apply in this case, but it is indicative of the legislative policy, in respect of the regulation of picketing in that Province. It shows that the application of s. 1 of the Charter to sustain the limitation imposed by the common law would be consistent with legislative policy in British Columbia. I would say that the requirement of proportionality is also met, particularly when it is recalled that this is an interim injunction effective only until trial when the issues may be more fully canvassed on fuller evidence. It is my opinion then that a limitation on secondary picketing against a third party, that is, a non-ally, would be a reasonable limit in the facts of this case. I would therefore conclude that the injunction is "a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society".
Does the Charter apply to the Common Law?
In my view, there can be no doubt that it does apply. Section 52(1) of the Constitution Act, 1982 provides:
(1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
(1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit.
The English text provides that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". If this language is not broad enough to include the common law, it should be observed as well that the French text adds strong support to this conclusion in its employment of the words "elle rend inopérantes les dispositions incompatibles de tout autre règle de droit". (Emphasis added.) To adopt a construction of s. 52(1) which would exclude from Charter application the whole body of the common law which in great part governs the rights and obligations of the individuals in society, would be wholly unrealistic and contrary to the clear language employed in s. 52(1) of the Act.
Does the Charter apply to private litigation?
This question involves consideration of whether or not an individual may found a cause of action or defence against another individual on the basis of a breach of a Charter right. In other words, does the Charter apply to private litigation divorced completely from any connection with Government? This is a subject of controversy in legal circles and the question has not been dealt with in this Court. One view of the matter rests on the proposition that the Charter, like most written constitutions, was set up to regulate the relationship between the individual and the Government. It was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation.
Support for this view is found in Peter W. Hogg, supra, at pp. 670-78, and in an article by Katherine Swinton, "Application of the Canadian Charter of Rights and Freedoms", in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms--Commentary.
At pages 674-75 in his text, Professor Hogg says:
The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter. Such actions as an employer restricting an employee's freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter, because in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law, or under some other branch of the law governing relations between private persons; but there will be no breach of the Charter.
- In her discussion of this question, Professor Swinton has pointed out that certain sections of the Charter might support the proposition that it could apply in private litigation, but she makes it clear on an overall view of the Charter that its application to private litigation is, in her view, excluded. She has pointed out that the Charter is not designed to be employed in private litigation and by its very nature it is not suited for that purpose. At pages 47-48, she says:
Moreover, in considering whether the Charter should be directly applicable, the courts should bear in mind its drawbacks as a method of dealing with private action and the advantages of leaving the regulation of such conduct to human rights legislation or other legal controls. Legislation can be tailored to deal with the tension between privacy rights and equality or that between freedom of expression and prohibition of hate literature. It can expressly limit the applicability of equality guarantees to services or to areas open to the public, or specify the right to set bona fide job qualifications. The Charter is not so refined, and provides no guidelines for its application. These would have to be judicially determined.
As well, statutes such as particular human rights and equal pay laws contain an administrative structure designed to promote mediated settlements of disputes, rather than resort to litigation. There is an elaborate structure of conciliation preceding adjudications by an administrative tribunal, which can have an educative effect between the parties. The Charter will be interpreted for the most part in the courts, where there is no built-in mechanism to encourage settlement.
and later, she said, at p. 48:
One should also keep in mind the concerns of the federal and provincial governments in drafting and agreeing to the Charter. Their focus was its effect on their own governmental operations. That is the reason for s. 1, requiring the courts to interpret the guarantees so as to allow reasonable limitations imposed by law. The override section (s. 33), allowing the legislatures to enact laws infringing the Charter, also indicates that governments were concerned about bounds on legislative action. The governments did not address the application of the Charter to private action, and indeed it would have been strange for them to do so, for their existing human rights codes address that matter.
- More recently, Dubin J.A., speaking for the majority of the Court of Appeal for Ontario (Dubin, Morden JJ.A., Finlayson J.A. dissenting) in Re Blainey and Ontario Hockey Association (1986), 1986 145 (ON CA), 26 D.L.R. (4th) 728, 54 O.R. (2d) 513, in a case involving a claim for discrimination on account of sex, said: "In my opinion s. 15 of the Charter does not reach private activity within a province". He then expressed agreement with the words of Professor Tarnopolsky (as he then was) in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms--Commentary (supra), at pp. 422-23, where he said:
In our own case under the Charter, it is suggested that s. 15 is not likely to be applied in the courts except in cases where a discriminatory act is committed by legislative action, and the jurisdiction concerned does not have an overriding clause in its Human Rights Act, as do Alberta, Quebec and Saskatchewan. This would be so for the following reasons:
By s. 32(1), the Charter is specifically made applicable only to the Parliament and government of Canada and to the legislature and government of each province "in respect of all matters within the authority" of the respective legislative body. Thus, although legislative and executive actions are covered by the Charter, it is not made applicable to private action.
Section 15 refers to equality before and under he law, as well as equal protection and benefit of the law. Thus, although an anti-discrimination (human rights) law would itself have to conform to s. 15, it, and not s. 15, would be directly applicable to discriminatory actions by private persons.
Every jurisdiction in Canada has an anti-discrimination statute which is explicitly made applicable to the Crown. It is unlikely, therefore, that a complainant would resort to a constitutional action in the courts, rather than the complaint process under the anti-discrimination laws.
Dubin J.A. then noted that McNair J., of the Federal Court, Trial Division, in Cat Productions Ltd. v. Macedo, 1985 5605 (FC), [1985] 1 F.C. 269, had approved the words of Professor Swinton, at pp. 44-45 in the Canadian Charter of Rights and Freedoms: Commentary, supra:
The automatic response to a suggestion that the Charter can apply to private activity, without connection to government, will be that a Charter of Rights is designed to bind governments, not private actors. That is the nature of a constitutional document: to establish the scope of governmental authority and to set out the terms of the relationship between the citizen and the state and those between the organs of government. The purpose of a Charter of Rights is to regulate the relationship of an individual with the government by invalidating laws and governmental activity which infringe the rights guaranteed by the document, while relationships between individuals are left to the regulation of human rights codes, other statutes, and common law remedies, such as libel and slander laws. Furthermore, s. 32(1) specifically states that the Charter applies to "the Parliament and government of Canada in respect of all matters within the authority of Parliament" (emphasis added). It is governmental action which is caught, not private action.
He concluded on this point: "I agree with McNair J., and, with respect, I do not agree with the contrary opinion to be found in R. v. Lerke (1984), 1984 1285 (AB KB), 11 D.L.R. (4th) 185, 13 C.C.C. (3d) 515, 55 A.R. 216 (Alta. Q.B.)"
- Further support for the view that the Charter does not apply in litigation between private parties is to be found in a helpful article in (1986), 24 Alta. L. Rev. 361, by Anne McLellan and Bruce P. Elman, entitled, "To Whom Does the Charter Apply? Some recent cases on s. 32", which reviews the case law as it has developed, and says at p. 367:
In conclusion it is suggested that the better view is that the Charter applies only to government action. To hold otherwise would be to increase the scope of the Charter immeasurably. In cases involving arrests, detentions, searches and the like, to apply the Charter to purely private action would be tantamount to setting up an alternative tort system. In the area of private discrimination, an entirely new system of civil liability in competition with the dispute resolution mechanisms fostered by human rights legislation would result.
Views to the contrary have been expressed in articles by Dale Gibson: "The Charter of Rights and the Private Sector" (1982), 12 Man. L.J. 213; "Distinguishing the Governors from the Governed: The Meaning of 'Government' under Section 32(1) of the Charter" (1983), 13 Man. L.J. 505, as well as Morris Manning, Rights, Freedoms and the Courts (Toronto 1983).
I am in agreement with the view that the Charter does not apply to private litigation. It is evident from the authorities and articles cited above that that approach has been adopted by most judges and commentators who have dealt with this question. In my view, s. 32 of the Charter, specifically dealing with the question of Charter application, is conclusive on this issue. Section 32 is reproduced hereunder:
(1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
- (1) La présente charte s'applique:
a) au Parlement et au gouvernement du Canada, pour tous les domaines relevant du Parlement, y compris ceux qui concernent le territoire du Yukon et les territoires du Nord-Ouest;
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
b) à la législature et au gouvernement de chaque province pour tous les domaines relevant de cette législature.
Section 32(1) refers to the Parliament and Government of Canada and to the legislatures and governments of the Provinces in respect of all matters within their respective authorities. In this, it may be seen that Parliament and the Legislatures are treated as separate or specific branches of government, distinct from the executive branch of government, and therefore where the word 'government' is used in s. 32 it refers not to government in its generic sense--meaning the whole of the governmental apparatus of the state--but to a branch of government. The word 'government', following as it does the words 'Parliament' and 'Legislature', must then, it would seem, refer to the executive or administrative branch of government. This is the sense in which one generally speaks of the Government of Canada or of a province. I am of the opinion that the word 'government' is used in s. 32 of the Charter in the sense of the executive government of Canada and the Provinces. This is the sense in which the words 'Government of Canada' are ordinarily employed in other sections of the Constitution Act, 1867. Sections 12, 16, and 132 all refer to the Parliament and the Government of Canada as separate entities. The words 'Government of Canada', particularly where they follow a reference to the word 'Parliament', almost always refer to the executive government.
It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of government. It will apply to those branches of government whether or not their action is invoked in public or private litigation. It would seem that legislation is the only way in which a legislature may infringe a guaranteed right or freedom. Action by the executive or administrative branches of government will generally depend upon legislation, that is, statutory authority. Such action may also depend, however, on the common law, as in the case of the prerogative. To the extent that it relies on statutory authority which constitutes or results in an infringement of a guaranteed right or freedom, the Charter will apply and it will be unconstitutional. The action will also be unconstitutional to the extent that it relies for authority or justification on a rule of the common law which constitutes or creates an infringement of a Charter right or freedom. In this way the Charter will apply to the common law, whether in public or private litigation. It will apply to the common law, however, only in so far as the common law is the basis of some governmental action which, it is alleged, infringes a guaranteed right or freedom.
The element of governmental intervention necessary to make the Charter applicable in an otherwise private action is difficult to define. We have concluded that the Charter applies to the common law but not between private parties. The problem here is that this is an action between private parties in which the appellant resists the common law claim of the respondent on the basis of a Charter infringement. The argument is made that the common law, which is itself subject to the Charter, creates the tort of civil conspiracy and that of inducing a breach of contract. The respondent has sued and has procured the injunction which has enjoined the picketing on the basis of the commission of these torts. The appellants say the injunction infringes their Charter right of freedom of expression under s. 2(b). Professor Hogg meets this problem when he suggests, at p. 677 of his text, after concluding that the Charter does not apply to private litigation, that:
Private action is, however, a residual category from which it is necessary to subtract those kinds of action to which s. 32 does make the Charter applicable.
He added:
The Charter will apply to any rule of the common law that specifically authorizes or directs an abridgement of a guaranteed right.
and he concluded by saying, at p. 678:
The fact that a court order is governmental action means that the Charter will apply to a purely private arrangement, such as a contract or proprietary interest, but only to the extent that the Charter will preclude judicial enforcement of any arrangement in derogation of a guaranteed right.
Professor Hogg, at p. 678, rationalized his position in these words:
In a sense, the common law authorizes any private action that is not prohibited by a positive rule of law. If the Charter applied to the common law in that attenuated sense, it would apply to all private activity. But it seems more reasonable to say that the common law offends the Charter only when it crystallizes into a rule that can be enforced by the courts. Then, if an enforcement order would infringe a Charter right, the Charter will apply to preclude the order, and, by necessary implication, to modify the common law rule.
I find the position thus adopted troublesome and, in my view, it should not be accepted as an approach to this problem. While in political science terms it is probably acceptable to treat the courts as one of the three fundamental branches of Government, that is, legislative, executive, and judicial, I cannot equate for the purposes of Charter application the order of a court with an element of governmental action. This is not to say that the courts are not bound by the Charter. The courts are, of course, bound by the Charter as they are bound by all law. It is their duty to apply the law, but in doing so they act as neutral arbiters, not as contending parties involved in a dispute. To regard a court order as an element of governmental intervention necessary to invoke the Charter would, it seems to me, widen the scope of Charter application to virtually all private litigation. All cases must end, if carried to completion, with an enforcement order and if the Charter precludes the making of the order, where a Charter right would be infringed, it would seem that all private litigation would be subject to the Charter. In my view, this approach will not provide the answer to the question. A more direct and a more precisely-defined connection between the element of government action and the claim advanced must be present before the Charter applies.
An example of such a direct and close connection is to be found in Re Blainey and Ontario Hockey Association, supra. In that case, proceedings were brought against the hockey association in the Supreme Court of Ontario on behalf of a twelve year old girl who had been refused permission to play hockey as a member of a boys' team competing under the auspices of the Association. A complaint against the exclusion of the girl on the basis of her sex alone had been made under the provisions of the Human Rights Code, 1981, S.O. 1981, c. 53, to the Ontario Human Rights Commission. It was argued that the hockey association provided a service ordinarily available to members of the public without discrimination because of sex, and therefore that the discrimination against the girl contravened this legislation. The Commission considered that it could not act in the matter because of the provisions of s. 19(2) of the Human Rights Code, which are set out hereunder:
19.--(1) ...
(2) The right under section 1 to equal treatment with respect to services and facilities is not infringed where membership in an athletic organization or participation in an athletic activity is restricted to persons of the same sex.
In the Supreme Court of Ontario it was claimed that s. 19(2) of the Human Rights Code was contrary to s. 15(1) of the Charter and that it was accordingly void. The application was dismissed. In the Court of Appeal, the appeal was allowed (Dubin, Morden JJ.A., Finlayson J.A. dissenting). Dubin J.A., writing for the majority, stated the issue in these terms at [D.L.R., p. 735]:
Indeed, it was on the premise that the ruling of the Ontario Human Rights Commission was correct that these proceedings were launched and which afforded the status to the applicant to complain now that, by reason of s. 19(2) of the Human Rights Code she is being denied the equal protection and equal benefit of the Human Rights Code by reason of her sex, contrary to the provisions of s. 15(1) of the Canadian Charter of Rights and Freedoms (the "Charter").
He concluded that the provisions of s. 19(2) were in contradiction of the Charter and hence of no force or effect. In the Blainey case, a law suit between private parties, the Charter was applied because one of the parties acted on the authority of a statute, i.e., s. 19(2) of the Ontario Human Rights Code which infringed the Charter rights of another. Blainey then affords an illustration of the manner in which Charter rights of private individuals may be enforced and protected by the courts, that is, by measuring legislation--government action--against the Charter.
- As has been noted above, it is difficult and probably dangerous to attempt to define with narrow precision that element of governmental intervention which will suffice to permit reliance on the Charter by private litigants in private litigation. Professor Hogg has dealt with this question, at p. 677, supra, where he said:
...the Charter would apply to a private person exercising the power of arrest that is granted to "any one" by the Criminal Code, and to a private railway company exercising the power to make by-laws (and impose penalties for their breach) that is granted to a "railway company" by the Railway Act; all action taken in exercise of a statutory power is covered by the Charter by virtue of the references to "Parliament" and "legislature" in s. 32. The Charter would also apply to the action of a commercial corporation that was an agent of the Crown, by virtue of the reference to "government" in s. 32.
It would also seem that the Charter would apply to many forms of delegated legislation, regulations, orders in council, possibly municipal by-laws, and by-laws and regulations of other creatures of Parliament and the Legislatures. It is not suggested that this list is exhaustive. Where such exercise of, or reliance upon, governmental action is present and where one private party invokes or relies upon it to produce an infringement of the Charter rights of another, the Charter will be applicable. Where, however, private party "A" sues private party "B" relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law. But this is different from the proposition that one private party owes a constitutional duty to another, which proposition underlies the purported assertion of Charter causes of action or Charter defences between individuals.
Can it be said in the case at bar that the required element of government intervention or intrusion may be found? In Blainey, s. 19(2) of the Ontario Human Rights Code, an Act of a legislature, was the factor which removed the case from the private sphere. If in our case one could point to a statutory provision specifically outlawing secondary picketing of the nature contemplated by the appellants, the case--assuming for the moment an infringement of the Charter--would be on all fours with Blainey and, subject to s. 1 of the Charter, the statutory provision could be struck down. In neither case, would it be, as Professor Hogg would have it, the order of a court which would remove the case from the private sphere. It would be the result of one party's reliance on a statutory provision violative of the Charter.
In the case at bar, however, we have no offending statute. We have a rule of the common law which renders secondary picketing tortious and subject to injunctive restraint, on the basis that it induces a breach of contract. While, as we have found, the Charter applies to the common law, we do not have in this litigation between purely private parties any exercise of or reliance upon governmental action which would invoke the Charter. It follows then that the appeal must fail. The appeal is dismissed. The respondent is entitled to its costs. In the circumtances of this case, it becomes unnecessary to answer the constitutional question framed by the Chief Justice on September 5, 1984.
The following are the reasons delivered by
Beetz J.--I agree with the reasons of the majority in the British Columbia Court of Appeal for holding that in the circumstances and on the evidence of this case, the picketing which has been enjoined would not have been a form of expression and that no question of infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms could accordingly arise.
This reason suffices for the dismissal of the appeal with costs.
It is unnecessary for me to express any view on other issues in order to reach this conclusion. However, given the importance of these issues, I wish to state that I otherwise agree with the reasons for judgment written by my brother McIntyre.
The following are the reasons delivered by
Wilson J.--I agree with the reasons of my colleague, McIntyre J., with the exception of his reasons dealing with the application of s. 1 of the Charter.
The search under s. 1 is, I believe, for the appropriate test to apply when weighing a principle of the common law against a fundamental freedom protected by the Charter. On a s. 1 analysis the purposes and objectives of a piece of impugned legislation are ascertained through an objective approach: see, for example, the approach taken by this Court in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295 and R. v. Oakes, 1986 46 (SCC), [1986] 1 S.C.R. 103. It seems to me that the same objective approach must be taken when weighing a principle of the common law against a fundamental freedom.
There are, as I see it, two distinct questions which must be answered, namely:
(1) Does the tort of inducing breach of contract represent a reasonable limit under s. 1 on freedom of expression in the labour relations context? and
(2) If the tort does represent a reasonable limit under s. 1, should injunctive relief be granted in this particular case?
The first question requires the application of the objective approach mentioned above. If the tort does not survive the first question then, of course, the conduct is not wrongful and no injunction can issue. If, however, it does survive the first question, then the facts of this particular case (including the subjective impact on the employer) must be considered in order to see whether the other requirements for the award of an interlocutory injunction are present, i.e., does the balance of convenience favour the plaintiff? However, even on this question it seems to me that some weight must be given to the freedom of speech of the picketers.
My difficulty with my colleague's approach to s. 1 is twofold. First, he has used the subjective impact on the employer on the first question. It is, on his analysis, the "pressing and substantial concern". And second, he has given no consideration to the origin and historical development of the tort and its role in relation to labour disputes. I would have thought that this was crucial on the s. 1 inquiry. As a consequence the two questions referred to above have been merged into one and no objective criteria for the s. 1 inquiry have been identified.
I nevertheless agree with McIntyre J.'s proposed disposition of the appeal.
Appeal dismissed.
Solicitors for the appellants: Laxton, Pidgeon, Vancouver.
Solicitors for the respondent: Jordan and Gall, Vancouver.
Solicitor for the intervener the Attorney General of Canada: R. Tassé, Ottawa.
Solicitor for the intervener the Attorney General of British Columbia: Attorney General of British Columbia, Victoria.
Solicitors for the intervener the Attorney General for Alberta: McLennan, Ross, Edmonton.
Solicitor for the intervener the Attorney General of Newfoundland: Attorney General of Newfoundland, St. John's.
