Allsco Building Products Ltd. v. U.F.C.W., Local 1288P, [1999] 2 S.C.R. 1136

United Food and Commercial Workers International Union, Local 1288P Appellant

v.

Allsco Building Products Ltd., Blacksmith Holdings Ltd. carrying on business as Wayside Four Seasons, Lumply Ltd., Maple Leaf Homes Inc. and Atlantic Home Improvements Ltd. Respondents

and

The Attorney General for New Brunswick, the Attorney General of British Columbia, the Retail Council of Canada, the Canadian Labour Congress, the Canadian Manufacturers’ Association, the Canadian Civil Liberties Association and Pepsi-Cola Canada Beverages (West) Ltd. Interveners

Indexed as: Allsco Building Products Ltd. v. U.F.C.W., Local 1288P

File No.: 26203.

1999: February 15; 1999: September 9.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, Iacobucci, Major and Binnie JJ.

on appeal from the court of appeal for new brunswick

Labour law -- Labour disputes -- Picketing -- Leafleting -- Union members distributing leaflets at secondary sites during labour dispute -- Union members not trespassing or blocking vehicles -- Whether leafleting activities prohibited -- Industrial Relations Act, R.S.N.B. 1973, c. I-4, ss. 5(4), 104(2).

The appellant union’s members were locked out by the respondent Allsco, a manufacturer of building materials. Three of the other four respondents sell Allsco products, while the fourth uses its materials to manufacture modular homes and trailers. Union members distributed leaflets outside the premises of the four non-Allsco respondents. They would approach vehicles entering the premises and offer the leaflet to vehicle occupants. The union members did not trespass onto the properties of the non-Allsco respondents, and did not block any vehicles entering or exiting the premises. The leaflet requested that the reader “[p]lease think twice” before purchasing Allsco products or the vinyl siding that Allsco distributed, because Allsco had locked union members out of their jobs. Union members did not orally ask anyone not to do business with the non-Allsco respondents, or ask suppliers to refrain from making deliveries to them, or ask employees of these respondents not to go to work. The respondents obtained an interlocutory injunction against the union, enjoining union members from distributing leaflets outside the premises of the four non-Allsco respondents, on the basis that the union was engaging in secondary picketing, which was said to be prohibited by s. 104(2) of the New Brunswick Industrial Relations Act. The respondents were then granted a permanent injunction, and that decision was upheld by the Court of Appeal.

Held: The appeal should be allowed.

The leafleting in this case falls within the definition of permissible peaceful leafleting outlined in KMart. While on its face, s. 104(2) of the Act appears to prohibit even peaceful leafleting of this variety, it must be construed in light of s. 5(4), which on its face authorizes a union and its members to express their views freely, provided the manner chosen to express those views is not coercive, intimidating, threatening, or intended to have an undue influence upon any person. The word “persuade” in s. 104(2) should be interpreted narrowly, in light of s. 5(4), to mean persuasion that is coercive, intimidating, threatening, or intended to cause undue influence. Given that most labour relations statutes prohibit secondary conventional picketing by reason of the undue influence and sometimes tortious harm that it causes, it is reasonable to see s. 104(2) as being aimed at this type of expression, rather than peaceful persuasion. Moreover, an interpretation of s. 104(2) that would see the provision prohibit the peaceful distribution of leaflets would constitute not only an infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms, but also an infringement that is not saved under s. 1. It follows that the legislation does not infringe s. 2(b) of the Charter on the facts of this case, because it does not prohibit peaceful leafleting. It follows as well that the trial judge erred in issuing an injunction to stop the members of the union from engaging in the peaceful distribution of leaflets outside the premises of the non-Allsco respondents.

Cases Cited

Applied: U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R. 1083; referred to: KMart Canada Ltd. v. U.F.C.W., Local 1518 (1995), 1995 CanLII 1849 (BC SC), 14 B.C.L.R. (3d) 162; O.K. Economy Stores v. R.W.D.S.U., Local 454 (1994), 1994 CanLII 3872 (SK CA), 118 D.L.R. (4th) 345; RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 2(b).

Industrial Relations Act, R.S.N.B. 1973, c. I-4, ss. 5(4), 104(1), (2), (3).

APPEAL from a judgment of the New Brunswick Court of Appeal (1997), 1997 CanLII 17808 (NB CA), 190 N.B.R. (2d) 96, 484 A.P.R. 96, 149 D.L.R. (4th) 326, 97 C.L.L.C. ¶220-086, [1997] N.B.J. No. 278 (QL), affirming a decision of the Court of Queen’s Bench (1997), 1997 CanLII 324 (SCC), 187 N.B.R. (2d) 241, 478 A.P.R. 241, [1997] N.B.J. No. 177 (QL), granting the respondents’ action for a declaration and permanent injunction. Appeal allowed.

David M. Brown, Q.C., and James E. Stanley, for the appellant.

David W. Clark and Lynn M. Walsworth, for the respondents.

Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.

George H. Copley, Q.C., for the intervener the Attorney General of British Columbia.

John R. Sproat, for the intervener the Retail Council of Canada.

Frank Addario, Steven M. Barrett and Vanessa Payne, for the intervener the Canadian Labour Congress.

William B. Goss, Q.C., for the intervener the Canadian Manufacturers’ Association.

John B. Laskin and Trevor C. W. Farrow, for the intervener the Canadian Civil Liberties Association.

Written submissions only by R. G. Richards, Q.C., for the intervener Pepsi‑Cola Canada Beverages (West) Ltd.

The judgment of the Court was delivered by

Iacobucci J.

1IACOBUCCI J. -- This appeal from New Brunswick was heard with the companion appeal from British Columbia U.F.C.W., Local 1518 v. KMart Canada Ltd., 1999 CanLII 650 (SCC), [1999] 2 S.C.R.1083. Both cases address the issue of whether it is a justifiable infringement of s. 2(b) of the Canadian Charter of Rights and Freedoms for a statutory labour relations regime to prohibit the peaceful distribution of leaflets by unions and union members, where those leaflets accurately set out the position of employees involved in a labour dispute with their employer, and are distributed in a manner that is not intimidating or such as to cause undue influence. In the present appeal, the specific question to be resolved is whether s. 104(2) of the New Brunswick Industrial Relations Act, R.S.N.B. 1973, c. I-4, prohibits such leafleting and thus infringes s. 2(b) of the Charter, and if so whether that infringement is justified under s. 1.

2My colleague Cory J. has set out in his reasons in KMart the essential freedom of expression concerns and principles that arise where a union seeks to engage in the peaceful distribution of leaflets. The principles that Cory J. applies in KMart are apposite in the context of the present appeal. However, there are important differences between the impugned statutory provision at issue in KMart and that which is at issue in this appeal. As a result, it is unnecessary to find that the legislation at issue here prohibits peaceful leafleting by a union, and thus it is unnecessary to find that the impugned legislation infringes s. 2(b) of the Charter.

I. Factual Background

3The facts at issue in this appeal are the subject of an agreed statement of facts filed by the parties in the trial court. The respondent Allsco Building Products Ltd. (“Allsco”) is a manufacturer of vinyl windows, doors, and other exterior products for homes, and is also the distributor of a brand of vinyl siding within Canada’s Atlantic region. The appellant United Food and Commercial Workers International Union, Local 1288P (“UFCW Local 1288P”) is the certified bargaining agent for about 100 employees working at Allsco’s manufacturing facilities in Moncton. On February 6, 1996, Allsco began a legal lockout of the members of UFCW Local 1288P.

4Three of the other four respondents -- Wayside Four Seasons, Lumply Ltd., and Atlantic Home Improvements Ltd. -- are engaged in the business of selling building materials. A significant portion of their business involves the sale of Allsco products, Allsco being their primary supplier of vinyl building materials. The other respondent -- Maple Leaf Homes Inc. -- is engaged in the business of manufacturing modular homes and trailers. Allsco is its primary supplier of vinyl building materials, which are incorporated into Maple Leaf’s products. I will refer to these latter four respondents collectively as the “non-Allsco respondents”. The non-Allsco respondents have no collective bargaining relationship with UFCW Local 1288P, and are third parties to the labour dispute between Allsco and the union.

5On 13 occasions between May and July, 1996, members of UFCW Local 1288P distributed leaflets outside the premises of the four non-Allsco respondents. On all but one occasion, the number of union members handing out leaflets was either one or two persons. The union members would approach vehicles entering the premises and offer the leaflet to vehicle occupants. The union members did not trespass onto the properties of the non-Allsco respondents. They did not carry any picket signs, parade back and forth, or conspicuously display any item that indicated that the union was involved in a labour dispute with Allsco, except by distributing the leaflet. Union members did not block any vehicles entering or exiting the premises. The only impact upon access to the premises of the non-Allsco respondents was that caused by union members approaching the vehicles to offer the leaflet. On some occasions, the union members wore hats identifying themselves as members of UFCW Local 1288P. Vehicles did stop from time to time at the entrance to the premises of the non-Allsco respondents, and a large number of leaflets were distributed.

6The leaflet requested that the person reading the leaflet “[p]lease think twice” before purchasing Allsco products or the vinyl siding that Allsco distributed, on the basis that Allsco had locked UFCW Local 1288P members out of their jobs. The leaflet asked its reader to help union members get back to work, by not buying Allsco products, or by the reader asking his or her contractor not to buy from Allsco. The leaflet stated that, by not buying Allsco products, the reader of the leaflet would help the union send a simple message to the owners of Allsco, namely, in the words of the leaflet:

Come back to the bargaining table. Treat the employees who helped you build your company with respect and dignity. Give us back the ability to support our families and watch them grow.

The leaflet stated that working conditions at Allsco were harsh, with many union members earning less than $7.00 an hour, and with a health-and-safety audit having found that Allsco scored 6 out of 100. The leaflet stated that the workers had been denied water during the month of July, and had been kept from going to the bathroom as necessary.

7According to the agreed statement of facts, the union’s reason for handing out the leaflet to those entering the premises of the four non-Allsco respondents was solely to encourage the public at points of consumer purchase to support a boycott of Allsco products. UFCW Local 1288P members did not orally ask anyone not to do business with the non-Allsco respondents, or ask suppliers to refrain from making deliveries to the non-Allsco respondents, or ask employees of these respondents not to go to work.

8On August 12, 1996, Allsco and the other four respondents successfully applied for an interlocutory injunction against UFCW Local 1288P, enjoining union members from distributing leaflets outside the premises of the four non-Allsco respondents. The basis for the issuance of the injunction was that the union was engaging in secondary picketing of the non-Allsco respondents, which was said to be prohibited by s. 104(2) of the New Brunswick Industrial Relations Act. The respondents then applied for a permanent injunction.

II. Relevant Constitutional and Statutory Provisions

9Canadian Charter of Rights and Freedoms

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

Industrial Relations Act, R.S.N.B. 1973, c. I-4

5(4) Nothing in this section or in this Act shall be deemed to deprive a trade union, or a council of trade unions, or a person acting on behalf of a trade union or council of trade unions, of freedom to express its or his views so long as it or he does not exercise that freedom in a manner that is coercive, intimidating, threatening or intended to unduly influence any person.

104(1) Where there is a strike that is not unlawful under this Act or a lock- out, a trade union or council of trade unions, members of which are on strike or locked out, and anyone authorized by the trade union or council of trade unions, may, at the employer’s place of business, operations or employment, and without acts that are otherwise unlawful, persuade or endeavour to persuade anyone not to

(a) enter the employer’s place of business, operations or employment,

(b) deal in or handle the products of the employer, or

(c) do business with the employer.

104(2) Except as provided in subsection (1), in respect of matters to which this Act applies, no trade union or council of trade unions or other person shall persuade or endeavour to persuade anyone not to

(a) enter an employer’s place of business, operations or employment,

(b) deal in or handle the products of any person, or

(c) do business with any person.

104(3) Public expressions of sympathy or support, otherwise than by picketing, on the part of trade unions or others not directly concerned in the strike or lock-out do not contravene subsection (2).

III. Judicial History

A. New Brunswick Court of Queen’s Bench (1997), 1997 CanLII 9477 (NB KB), 187 N.B.R. (2d) 241

10The respondents appeared before Russell J. of the New Brunswick Court of Queen’s Bench seeking a declaration that UFCW Local 1288P had engaged in illegal picketing contrary to s. 104 of the Industrial Relations Act, and an order making permanent the interlocutory injunction prohibiting leafleting by union members outside the premises of the non-Allsco respondents. UFCW Local 1288P argued that their leafleting activities were permissible under s. 104 of the Industrial Relations Act, or alternatively that s. 104 of the Act constituted an unjustifiable infringement of the union’s freedom of expression under s. 2(b) of the Charter.

11Russell J. found that the union’s activities in distributing leaflets outside the premises of the non-Allsco respondents were in violation of s. 104(2) of the Industrial Relations Act, because the union members were there to discourage members of the public from entering the premises and from buying or dealing in Allsco products, thereby causing economic harm to all of the respondents. Further, he did not accept that s. 104(3) of the Act, which permits “[p]ublic expressions of sympathy or support, otherwise than by picketing, on the part of trade unions or others not directly concerned in the strike or lock-out”, was applicable in the circumstances.

12In finding that UFCW Local 1288P’s leafleting activities amounted to picketing and thus fell within s. 104(2), Russell J. relied upon the description of picketing set out in the decision of the Saskatchewan Court of Appeal in O.K. Economy Stores v. R.W.D.S.U., Local 454 (1994), 1994 CanLII 3872 (SK CA), 118 D.L.R. (4th) 345. The Saskatchewan decision described picketing as involving the physical presence of persons called pickets in the vicinity of the entrance to the targeted business premises, and the conveying of information by any of a variety of means with the object of inducing a boycott of the picketed premises by employees, customers, suppliers, and others on whom the employer is dependent for the successful operation of the enterprise. Russell J. also relied upon the description of “secondary picketing” set out in O.K. Economy Stores (at p. 359):

Secondary picketing is . . . the picketing of a business, unionized or non-unionized, which has no labour dispute with the union, but which does business with the primary employer who is engaged in a labour dispute with the union with the objective of inducing breach of contract or interfering with the secondary employer’s trade.

13Moving on to address the Charter motion, Russell J. stated that there was little question that s. 104(2) of the Industrial Relations Act infringed s. 2(b) of the Charter. However, he found that the impugned provision was justified under s. 1 of the Charter. He stated (at p. 259) that the decision of this Court in RWDSU v. Dolphin Delivery Ltd., 1986 CanLII 5 (SCC), [1986] 2 S.C.R. 573, had “essentially laid to rest” the question of whether legislation restricting secondary picketing is a reasonable limit on freedom of expression under the Charter. Russell J. cited the statement of McIntyre J. in Dolphin Delivery to the effect that (at p. 592) “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”. He stated that, “[g]iven the specific references too secondary picketing” in the Dolphin Delivery decision, “it is not necessary for me to revisit R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103" (p. 259).

14In support of his conclusion on the Charter issue, Russell J. referred to the decision of the British Columbia Supreme Court in what is now the companion appeal of KMart Canada Ltd. v. U.F.C.W., Local 1518 (1995), 1995 CanLII 1849 (BC SC), 14 B.C.L.R. (3d) 162. In the passages quoted by Russell J. from the British Columbia case, Huddart J. noted that a provincial statutory labour relations regime is a complex compromise in which the interests of labour, management, and the public are sought to be balanced, such that deference to the legislature is in order in evaluating a provision which restricts secondary picketing rights. She found that there was a qualitative distinction between, on the one hand, secondary picketing through leafleting and, on the other hand, other “[e]xpressive activities such as press releases, letters to affected third parties, television or newspaper advertisements, leaflets distributed at support rallies or in the neighbourhood, or left on cars in mall parking lots” (p. 191). Huddart J. found that this latter class of expressive activities could be regarded as “primarily informational”, whereas secondary picketing by leafleting is “primarily an economic weapon . . . intended to cause economic harm”, much like “conventional picketing” (p. 191). Huddart J. found that the economic purpose of leafleting overtakes its informational purpose, thus justifying legislative restrictions upon it.

15Russell J. concluded that Huddart J.’s analysis and conclusions in the British Columbia case applied to the facts of the case before him. He allowed the motion for a permanent injunction, declaring that UFCW Local 1288P’s leafleting activities constituted illegal picketing contrary to s. 104(2) of the Industrial Relations Act.

B. New Brunswick Court of Appeal (1997), 1997 CanLII 17808 (NB CA), 190 N.B.R. (2d) 96

16UFCW Local 1288P appealed the decision of Russell J. to the New Brunswick Court of Appeal, which unanimously dismissed its appeal in reasons delivered by Bastarache J.A. (as he then was). Bastarache J.A. agreed with the definition of “secondary picketing” applied by the trial judge. He found that the trial judge was correct in holding that the leafleting at issue amounted to picketing, and that s. 104(3) of the Industrial Relations Act had no application on the facts of the case.

17With regard to the validity of s. 104(2) of the Industrial Relations Act, Bastarache J.A. agreed that the impugned provision infringed s. 2(b) of the Charter, but found that it was justified under s. 1. He stated that the decision of this Court in Dolphin Delivery, supra, was determinative that the valid objective underlying provisions such as s. 104(2) was to protect third parties from economic harm. He found that there was no onus on the respondents to prove actual harm. Bastarache J.A. stated that the Industrial Relations Act was “part of the political and economic compromise between labour and free market forces” (p. 107), and that a balancing of these interests was required under s. 1. He agreed with the reasoning of Huddart J. in the KMart decision, supra, to the effect that secondary leafleting was “essentially an economic weapon, and that the economic purpose here was greater than the informational purpose” (p. 108). Taking into account the economic purpose of picketing, the harm caused, and the fact that the impugned legislation “does not limit the right to freedom of expression drastically” (p. 108), Bastarache J.A. found the legislation to be demonstrably justified under s. 1.

IV. Issues

18There are two issues in this appeal:

1. Are the leafleting activities engaged in by the members of UFCW Local 1288P prohibited by s. 104(2) of the Industrial Relations Act?

2. If the answer to the first question is yes, does s. 104(2) of the Industrial Relations Act infringe s. 2(b) of the Charter, and if so is it saved under s. 1 of the Charter?

By order dated June 29, 1998, the following constitutional questions were stated for this Court’s consideration:

1. Does s. 104(2) of the Industrial Relations Act, R.S.N.B. 1973, c. I-4, limit freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms to the extent that it prohibits union members from distributing leaflets elsewhere than at the employer’s place of business in the context of a labour dispute?

2. If the answer to Question 1 is yes, is the limit reasonable and demonstrably justified under s. 1 of the Charter?

V. Analysis

19Cory J. in the KMart case has thoroughly explained the fundamental importance of freedom of expression in the labour relations context. It is not necessary to discuss the issue in detail again since I agree with Cory J.’s analysis on this point, and will rely upon it here. As Cory J. states, it is essential to the well-being of employees and of society as a whole for unions and their members to be able to communicate accurate information regarding the circumstances of a labour dispute. Leafleting has historically been and continues to be a particularly important means whereby such information may be transmitted, given the ease with which leaflets may be distributed, the immediacy of the transmission of the message, and the relatively small associated financial cost. Accordingly, as Cory J. holds and as the parties in the present appeal concede, a legislative prohibition on peaceful leafleting by unions and union members clearly constitutes a prima facie infringement, under s. 2(b) of the Charter, of the freedom to express a particularly valuable form of information. Moreover, importantly, as is explained in KMart, such a prohibition cannot be justified under s. 1 of the Charter, and is accordingly invalid. It is in this light that the analysis in this appeal must be conducted.

20The central question at issue in this appeal is whether s. 104(2) of the Industrial Relations Act actually prohibits leafleting of the type described by Cory J. in KMart, namely, the peaceful distribution of leaflets accurately setting out the position of employees involved in a labour dispute with their employer. As emphasized by Cory J., an essential aspect of such leafleting is that it does not involve intimidation, coercion, or similar consequences in the course of, or as a result of, the transmission of its message. In my view, the leafleting described in the agreed statement of facts in the present case falls within the definition of permissible peaceful leafleting outlined by Cory J.

21On its face, s. 104(2) appears to prohibit even peaceful leafleting of this variety. The provision reads as follows:

104(2) Except as provided in subsection (1), in respect of matters to which this Act applies, no trade union or council of trade unions or other person shall persuade or endeavour to persuade anyone not to

(a) enter an employer’s place of business, operations or employment,

(b) deal in or handle the products of any person, or

(c) do business with any person. [Emphasis added.]

The language of s. 104(2) suggests that all forms of persuasion or attempts to persuade by a union or its members that are aimed at preventing members of the public from purchasing an employer’s products are proscribed, subject to s. 104(1), which permits picketing outside the premises of the primary employer. Because the leafleting that was engaged in by UFCW Local 1288P was designed to persuade consumers not to purchase Allsco products, and did not occur in a manner authorized by s. 104(1), it would seem to be prohibited by s. 104(2). This was the conclusion of the courts below, and indeed it was also the submission of the appellant and all respondents before this Court, who argued that the only real issue to consider was whether the prohibition contained in s. 104(2) was justifiable under s. 1 of the Charter.

22However, as was brought to this Court’s attention by the intervener, the Attorney General for New Brunswick, there is another relevant provision of the Industrial Relations Act, in light of whose interpretive guidance s. 104(2) must be construed. Section 5(4) states:

Nothing in this section or in this Act shall be deemed to deprive a trade union, or a council of trade unions, or a person acting on behalf of a trade union or council of trade unions, of freedom to express its or his views so long as it or he does not exercise that freedom in a manner that is coercive, intimidating, threatening or intended to unduly influence any person.

Section 5(4) does not appear to have been relied upon by counsel for the various parties in the courts below because it was not referred to by the Court of Appeal or by Russell J. If counsel had brought s. 5(4) to the courts’ attention, given the fundamental relevance of the section to the freedom of expression issue in this appeal, there is no doubt that the provision would have been discussed in the decisions below.

23On its face, s. 5(4) authorizes a union and its members to express their views freely, provided the manner chosen to express those views is not coercive, intimidating, threatening, or intended to have an undue influence upon any person. Were it not for s. 104(2), it would be clear by virtue of s. 5(4) that the peaceful distribution of leaflets at issue in this appeal was authorized by the Act. The question is how to reconcile s. 5(4) with s. 104(2).

24It might be argued that the two provisions are reconcilable in a manner that would still see peaceful leafleting prohibited by s. 104(2). One could see s. 104(2) as a specific prohibition against “persuasion” of the forms described therein, while s. 5(4) is a more general guarantee that addresses the more neutral and harmless activity of “expressing views”. By this reasoning, leafleting outside a secondary employer would be prohibited because it is specifically designed to persuade consumers to cause economic harm to the primary employer, whereas other, more indirect forms of expressing the union’s views would be permitted, because their harmful effects are more diffuse.

25However, aside from the fact that it is difficult to draw a principled distinction between peaceful persuasion by leafleting and peaceful persuasion by other means, there is, in any event, another, equally plausible construction of s. 104(2). It could be argued that the word “persuade” in s. 104(2) should be interpreted narrowly, in light of s. 5(4), to mean persuasion that is coercive, intimidating, threatening, or intended to cause undue influence. As Cory J. has explained in the KMart decision, these latter characteristics are generally associated with conventional picketing, which often has the effect of erecting a barrier that consumers, employees, and suppliers are reluctant to cross. Notwithstanding conventional picketing’s important role and sometimes salutary effects for employees, it can be intimidating and unduly influential to the point that, if not permitted by statute, it might in some cases be enjoinable as tortious. Indeed, it is hard to read the words of s. 5(4) without seeing within them a legislative attempt to distinguish picketing from forms of expression that are peaceful and unintimidating for the recipient of the message. Given that most labour relations statutes prohibit secondary conventional picketing by reason of the undue influence and sometimes tortious harm that is caused by such picketing, it is reasonable to see s. 104(2) as being aimed at this type of expression, rather than peaceful persuasion.

26In my view, the two alternative constructions of s. 104(2) that I have just described are, at best, equally plausible. In light of the legislature’s clear effort to protect peaceful expression by enacting a general interpretive provision in s. 5(4), I am inclined to find that the second suggested construction is more plausible than the first. However, I will accept for the purposes of analysis that the two constructions are equally plausible. Nonetheless, the second suggested construction must prevail, by virtue of the accepted principle of statutory interpretation that, where a provision is open to two possible interpretations, and one interpretation would run afoul of a Charter right or freedom, the alternative interpretation is to be preferred: Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078, per Lamer J.; Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] 1 S.C.R. 554, at pp. 581-82, per Lamer C.J.

27In the present case, it is clear from the reasons of Cory J. in KMart that an interpretation of s. 104(2) that would see the provision prohibit the peaceful distribution of leaflets would constitute not only an infringement of s. 2(b) of the Charter, but also an infringement that is not saved under s. 1. Accordingly, s. 104(2) must be read as applying only to forms of persuasion that are coercive, intimidating, threatening, or intended to cause undue influence, in line with the legislative intent expressed in s. 5(4) and with the spirit of the Charter. It follows that the legislation does not infringe s. 2(b) of the Charter on the facts of this case, because it does not prohibit peaceful leafleting. It follows as well that the trial judge erred in issuing an injunction to stop the members of UFCW Local 1288P from engaging in the peaceful distribution of leaflets outside the premises of the non-Allsco respondents.

28Having said this, I would emphasize the point made by Cory J. in the KMart appeal that the question of whether leafleting in a particular case crosses the line and becomes impermissible persuasion is largely a factual one. A judge or other adjudicator called upon to decide whether s. 104(2) of the Industrial Relations Act can be relied upon as prohibiting the conduct of a particular union or union member must carefully consider the evidence. He or she must ensure both that freedom of expression is protected and that those who are engaged in persuasive expression have respected the right of those receiving their message not to be coerced or intimidated into undertaking a particular course of conduct. In this way, the freedom of all may be reconciled.

VI. Disposition

29The appeal is allowed with costs. The judgment of the New Brunswick Court of Appeal is set aside, and the order of the trial judge enjoining UFCW Local 1288P and its members from peacefully distributing leaflets is quashed. In light of the conclusion that s. 104(2) of the New Brunswick Industrial Relations Act does not prohibit the peaceful distribution of leaflets by a union or its members, it is not necessary to answer the constitutional questions.