Picketing laws cannot ban peaceful consumer leafleting, Supreme Court holds
Consumer leafleting is protected by the Charter guarantee of freedom of expression
In UFCW, Local 1518 v. KMart Canada Inc., the Supreme Court of Canada held that preventing union members from handing out leaflets at shopping malls and other locations violates the freedom of expression guarantee under the Canadian Charter of Rights and Freedoms.
The B.C. Case
When members of the UFCW went on strike at two KMart stores on Vancouver Island, they decided to distribute leaflets at other KMart stores in Vancouver and Victoria. The leaflets described KMart’s alleged unfair labour practices and urged customers to shop elsewhere. Union members did not block anyone’s access to the stores and all picketing was peaceful.
The B.C. Labour Relations Board restrained the leafleting activity on the basis that it was “secondary picketing” which violated the province’s Labour Relations Code. An application for judicial review failed, as did an appeal to the Court of Appeal. The Union appealed to the Supreme Court of Canada.
The New Brunswick Case
When Allsco Building Products locked out UFCW Local 1288P, members of the local handed out leaflets to customers of four companies who sold Allsco products. The leaflets asked consumers not to purchase Allsco products. The leafleting activity was peaceful and access to the premises was not blocked.
Allsco and the four companies obtained an injunction enjoining the leafleting. The New Brunswick Court of Queen’s Bench declared that the leafleting amounted to secondary picketing, contrary to the province’s Industrial Relations Act. The New Brunswick Court of Appeal dismissed the union’s appeal.
The Supreme Court Decisions
On September 9, 1999, the Supreme Court of Canada allowed both appeals.
Noting the importance of work in the lives of individuals, the Court held that workers must be able to speak freely on matters that relate to their working conditions. Leafleting, the Court noted, had been recognized for centuries as an effective and economical method of providing information and assisting rational persuasion.
The Court held that a ban on peaceful leafleting infringes workers’ right to free expression under s. 2(b) of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1 of the Charter. In this regard, consumer leafleting was very different from a picket line, which acts as a barrier and impedes public access to goods or services or to a premises. Consumer leafleting, on the other hand, does not have the same coercive component, but rather seeks to persuade through informed and rational discourse, which is the very essence of freedom of expression.
The question of whether leafleting in a particular case may cross the line and become impermissible was a question of fact to be determined in each case, the Court held. Provided the message conveyed by the leaflet was accurate and clearly stated that the dispute was with the primary employer, the manner of leafleting was not coercive, intimidating or unduly impeded access to or egress from the leafleted premises, and employees and suppliers were not prevented from working or fulfilling their contracts, leafleting is a valid exercise of freedom of expression.
Steven Barrett and Vanessa Payne represented the Canadian Labour Congress, which intervened in both appeals.