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Picketing during a legal strike is not discrimination, says Tribunal

July 16, 2012

Tribunal resists effort to establish a separate regime for control of picketing in certain types of workplaces

In Yuill v. Canadian Union of Public Employees, Local 1521.02, the Human Rights Tribunal of Ontario rejected a claim that employees of a group home discriminated against its residents by picketing during a legal strike.

Background

In 2009, the mostly female employees of a community living association providing support for intellectually delayed adults went on legal strike. They picketed their worksites, which included four houses where the employer provided residential services to groups of disabled adults. Their union, the Canadian Union of Public Employees, Local 1521.02, negotiated a picketing protocol with their employer, Community Living Association (Lanark County), which provided that people who lived in the houses, their families and other visitors would not be delayed or obstructed at any time. The protocol also included limits on the amount of time that managers and replacement workers could be delayed at the picket line.

However, a sister of one of the residents did not like the fact that any picketing was taking place at the workplace where her brother lived. She filed a human rights complaint on behalf of her brother alleging that picketing of any kind outside a “group home” constituted discrimination with respect to services, contrary to s. 1 of the Human Rights Code, and with respect to the occupancy of accommodation, contrary to s. 2 of the Code. The complaint maintained that picketing, even if lawful and peaceful, had a differential impact on the residents of the group home because it took place where they lived and because their intellectual disabilities made it difficult for them to understand what was occurring. In addition, picketing drew attention to the “group home”. Even though the agency’s operations were long established, the sister alleged that the picketing could reveal the presence of a “group home” on the street, and potentially create opposition from neighbours to the presence of disabled people in their community.

The Tribunal’s decision

The Human Rights Tribunal of Ontario held a summary hearing in order to determine whether the complaint against CUPE should be dismissed on the basis that it had no reasonable prospect of success. The same day, the Tribunal also considered a similar complaint involving another union, OPSEU, and a different assisted living agency which had a legal strike in 2007.

As is the practice in summary dismissal hearings, the Tribunal assumed that all of the facts alleged in the complaints were true [Had the complaints proceeded to a hearing on the merits, the claimants would have been required to prove their facts as alleged; the unions were prepared to adduce evidence contradicting the claims made in the complaints].

On July 16, 2012, the Tribunal dismissed both complaints on the basis that, even assuming the facts as alleged by the claimants to be true, there could be no violation of the Code. It held that the Code had no application since neither the unions nor their members were providing or offering services or accommodation to the complainants within the meaning of ss. 1 and 2 of the Code:

When picketing and on strike, the unions and their members were acting not as service providers or assisting with the occupancy of accommodation. They had expressly withdrawn their services, and were protesting the employer’s failure to reach an agreement with them … They had no role in providing or regulating services or accommodation but were union members, protesting and expressing their views about their employer’s actions. Although, like a neighbour, passer-by, or other protester, they could do things to affect the applicants’ services and living requirements, this is, in my view, not a sufficient link to engage the Code.

Moreover, the claim here is against the unions as organizations. The unions have no role as service or accommodation providers at any time. The unions’ role is to represent their members in their workplace interests, not to serve the clients of the homes.

The Tribunal also noted that picketing is at the core of the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms, and is also protected by the right to freedom of association under s. 2(d) of the Charter. To the extent there was any ambiguity about the application of the Code, it should be resolved in favour of not impacting those Charter rights.

The Tribunal also observed that interpreting the Code to apply in these circumstances would have the effect of creating a separate legal regime to regulate picketing and labour relations – in addition to labour relations legislation and the common law:

While [the claimants’] attempt to limit their submissions to situations of community living and picketing, the logic they rely upon is not nearly so narrow. There are numerous situations in which legal picketing could affect peoples’ homes, or have a particular impact upon them because of a protected ground under the Code. The claimants’ logic could require unions to show that their picketing of seniors’ homes, mental health facilities, women’s shelters or public housing accommodated the residents to the point of undue hardship. It would, in essence, set up the Tribunal as a separate regime for control of picketing in certain types of workplaces, in addition to the common law and labour relations laws. Indeed, their logic could apply not only to the union’s actions in picketing, but to strikes or lockouts themselves, which may have many of the same effects on the claimants. In my view, it is important to be cautious about these consequences, in particular given the careful balance between the rights of management and unions that labour relations law establishes.

Finally, the Tribunal noted that its interpretation of the Code did not mean that the claimants had no legal recourse. Their concerns could potentially be dealt with in other types of legal proceedings (the courts routinely regulate picketing) or perhaps even by a claim made under the Code against the actual service providers (employers) or government which funds the services. However, claims like these against unions were not covered by the Code.

Click here to read the Tribunal’s decision.

Lawyers

Peter Engelmann

Practice Areas

Human Rights Law, Labour Law