Two of Canada’s top labour law scholars, Judy Fudge of U. Victoria and Eric Tucker of Osgoode Hall Law School, have published an interesting study on the history of the British Columbia Court of Appeal’s treatment of labour picketing. It’s called “Everyone Knows What a Picket Line Means’: Picketing Before the British Columbia Court of Appeal”, available here for free download. It paints a picture of a divided Court, but one dominated by judges who held very low regard for the benefits of labour picketing.
In the first hundred years, the BCCA considered thirty-eight picketing cases. These resulted in eight union victories and two split decisions. In twenty-eight cases the union was the appellant, and it lost outright 70 percent of the time. Employers were the appellants in ten cases and won eight, an 80 percent success rate. In some ways, the numbers speak for themselves and reflect the strength and consistency of the beliefs of a large majority of the BCCA judges who sat on such cases that picketing was inherently coercive–it had a signalling effect–and that the privilege to trade was of significantly greater social value than the privilege of workers to act collectively. However, what the numbers do not reveal is (1) the internal opposition of a minority of judges, particularly in the first sixty years of the court’s history, to the restrictive approach adopted by the majority and (2) the signs of a possible shift in recent years.
The ‘possible shift’ referred to in the last sentence refers in part to recent decisions of Justice Ian Donald, an ex-union side labour lawyer. I was co-counsel (with David Blair) for the union in one those cases, called Fletcher Challenge from 1998.
The B.C. Supreme Court had issued an injunction in that case after a B.C. Gas employee showed up at a picket line, and when handed a letter from the picket captain indicating that the union did not grant him permission to cross the line, he thanked the picketers, returned to his truck, and drove away. I was amazed when the Supreme Court judge ruled that the picketers had committed a tort by asking the B.C. Gas employee to respect the picket line and ordered a wide sweeping injunction restricting picketing. At the Court of Appeal, Donald wrote a scathing decision overturning that lower court ruling and noting that asking people to respect a picket line is precisely the point of the picket line, and it is not a tort just because someone decides not to cross the picket line. Read his ruling, it’s interesting.
Fudge and Tucker review this decision and many others, and then provide context and some explanations of the very one-sided and narrow approach to picketing taken by the BC judges. I know a good number of B.C. labour lawyers read this blog occasionally. Do any of you have insight into this issue, and the findings and conclusions of Professors Fudge and Tucker?