IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: HEU & BCTF et al. v. HEABC & BCPSEA, 2007 BCSC 372 Date: 20070320 Docket: L050373 Registry: Vancouver
Between:
Hospital Employees’ Union Petitioner
And
Health Employers’ Association of British Columbia Attorney General of British Columbia and Respondents
And
Coalition of British Columbia Business and Business Council of British Columbia Interveners
- and
Docket: L050368 Registry: Vancouver
Between:
British Columbia Teachers’ Federation Petitioner

And

British Columbia Public School Employees’ Association and Attorney General of British Columbia

Respondents

And

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (1 of 48) [3/29/2007 3:10:51 PM]

Coalition of British Columbia Business and Business Council of British Columbia

Interveners

Before: The Honourable Madam Justice D. Smith

Reasons for Judgment

Counsel for the Petitioner, British Columbia J. Rogers
Teachers’ Federation M. Brown
Counsel for the Petitioner, Hospital Employees’ C. Boies Parker
Union
Counsel for the Respondent, British Columbia Public K. Murray
School Employees’ Association
Counsel for the Respondent, Health Employers’ E. Harris, Q.C.
Association of British Columbia
Counsel for the Respondent, Attorney General of G. Copley, Q.C.
British Columbia E. Hughes
N. Sharma
Counsel for the Labour Relations Board E. Miller
Counsel for the Intervener, Coalition of British A. Zwack
Columbia
Counsel for the Intervener, Business Council of D. Sartison
British Columbia B. Korenkiewicz
Date and Place of Trial/Hearing: November 1 – 10, 2006,
Vancouver, B.C.
A. INTRODUCTION

[1] In 1984, the provincial government amended the definition of “strike” in s. 1 the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”). The amendment was part of a legislative program to address workplace unrest that had developed during a significant downturn in the economy. One of labour’s responses to that legislative program took the form of widespread

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (2 of 48) [3/29/2007 3:10:51 PM]

work stoppages under the umbrella name of “Operation Solidarity”.

[2] Pre-1984, the Codes definition of strike was limited to job action taken for the purpose of compelling an employer to agree to terms or conditions of employment. The Labour Code Amendment Act, 1984, removed the subjective element of the definition relating to the purpose of a strike. The definition of strike now prohibits any work stoppage during the term of a collective agreement.

[3] Section 1(1) of the Code defines “strike” as follows:

1(1) In this Code

“strike” includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees that is designed to or does restrict or limit production or services, but does not include

(a) a cessation of work permitted under section 63(3), or

(b) a cessation, refusal, omission or act of an employee that occurs as the direct result of and for no other reason than picketing that is permitted by or under this Code,

and “to strike” has a similar meaning;

[4] Section 63(3) contains certain exceptions to the above definition which relate to safety reasons and non-affiliation clauses.

[5] The government’s stated purpose in introducing the 1984 amendment was to regulate the disruptive consequences of organized or concerted work stoppages during the term of a collective agreement. The effect of the amendment was to capture work stoppages for wholly political purposes, a consequence that was noted by the Labour Relations Board in Re Pacific Press Limited, BCLRB No.140/85, [1095] B.C.L.R.D. No. 140 (QL), upheld by the Reconsideration Panel in BCLRB No. 171/86, [1986] B.C.L.R.D. No. 170 (QL) at ¶7.

[6] Twenty years later, the exclusive bargaining agent for teachers, the British Columbia Teachers’ Federation (the “BCTF”), and the exclusive bargaining agent for about 90% of health sector employees, the Hospital Employees Union (the “HEU”), advanced a constitutional challenge to the Code’s definition of strike. Their actions were triggered by the legislative imposition of collective agreements between the BCTF and its employer association, the British Columbia Public School Employers’ Association (the “BCPSEA”), and the HEU and its employer association, the Health Employers’ Association of British Columbia (the “HEABC”).

[7] The legislation imposing the collective agreements was passed on January 28, 2002. It included The Education Services Collective Agreement Act, S.B.C. 2002, c.1 (“Bill 27”), The

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (3 of 48) [3/29/2007 3:10:51 PM]

Public Education Flexibility and Choice Act, S. B.C. 2002, c.3 (“Bill 28”) and The Health and Social Services Delivery Improvement Act, S.B.C. 2002, c. 2 (“Bill 29”) (collectively called the “legislation”). Bills 27 and 28 imposed a collective agreement on the BCTF during its labour dispute with the BCPSEA. Bill 29 imposed a collective agreement on the HEU and the HEABC mid-term during their negotiated collective agreement. The constitutionality of Bill 29 is currently before the Supreme Court of Canada. See Health Services Support-Facilities Subsector Bargaining Association v. British Columbia, 2004 BCCA 377, leave to appeal to SCC granted, [2004] S.C.C.A. No. 587 (QL).

[8] The legislation was part of the government’s restructuring of public-sector bargaining. The object of the legislation was to control labour costs in education and health care. Bills 27 and 28 precluded school boards and teachers from bargaining class size and designated education as an essential service under the Code. They also overrode a number of the teachers’ existing contractual rights. Bill 29 imposed a new collective agreement during the term of the health workers’ existing collective agreement. It also overrode a number of the contractual provisions in that collective agreement.

[9] The BCTF and HEU responded to the legislation by organizing work stoppages for the purpose of attending rallies away from the workplace, during working hours, in order to register their disagreement with the legislation. The object of the rallies was to persuade government to change its policy on public-sector bargaining. On the day of protest, the HEU also resorted to picketing activities that involved acts of violence and intimidation at various hospital sites around the province.

[10] In anticipation of the work stoppages, the HEABC and the BCPSEA applied to the Labour Relations Board (the “LRB”) for orders restraining the petitioners from attending the rallies. The petitioners responded by challenging the constitutionality of the expanded definition of strike.

[11] In both instances, the original LRB decisions granted interim orders enjoining the petitioners’ planned activities. After full hearings, both original LRB decisions concluded that work stoppages for wholly political purposes were distinguishable from collective bargaining strikes. They also agreed that political protest rallies involving work stoppages are expressive activities protected by s. 2(b) of the Charter.

[12] The original LRB decisions differed on whether the definition of strike as a s. 2(b) infringement could be saved by s. 1. Vice-Chair Saunders on the BCTF’s application concluded that it was justified (see BCLRB No. B92/2004, [2004] B.C.L.R.D. No. 92 (QL)); Vice-Chair O’Brien on the HEU’s application concluded it was not (see BCLRB No. B64/2004, [2004] B.C.L.

R.D. No. 64 (QL)). Vice-Chair Saunders also dismissed the BCTF’s claims of ss. 2(c) and 2(d) infringements.

[13] The LRB’s three-member Reconsideration Panel reviewed the original LRB decisions. It held a consolidated hearing in order to provide a consistent decision on the constitutional issues

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (4 of 48) [3/29/2007 3:10:51 PM]

common in each of the two applications (see BCLRB No. B395/2004, [2004] B.C.L.R.D. No. 395 (QL)). It also invited three interveners to participate in the hearing: the Coalition of British Columbia Business (the “Coalition”), the Business Council of British Columbia (the “Business Council”), and, the British Columbia Federation of Labour. The Attorney General of British Columbia (the “AGBC”) was represented at the review hearing pursuant to its right to be heard as a party on questions of constitutionality under s. 8 of the Constitutional Questions Act, R.S.

B.C. 1996, c. 68.

[14] The Reconsideration Panel upheld the constitutional validity of the definition of strike. It was unanimous in finding that the definition of strike infringed s. 2(b) of the Charter. It was also unanimous in declining to sever the HEU’s non-violent protest rallies away from the workplace, from its violent and intimidating picketing activities, for the purpose of deciding whether HEU’s activities should receive s. 2(b) protection. It concluded that the totality of the HEU actions was not protected by s. 2(b) because, in its view, those actions were incompatible with the rights of others.

[15] The Reconsideration Panel also agreed with the original LRB decision rejecting the BCTF’s claims that the definition of strike infringed ss. 2(c) and/or 2(d) of the Charter. In that regard, it upheld Vice-Chair Saunders’ analysis at ¶48-9 of the original LRB decision:

¶48 Applying that approach, [referring to R. v. Big M Drug Mart Ltd., [1985] 1 S.C.

R. 295 (“Big M Drug Mart”)] I do not find that the definition of “strike” infringes the right to peaceful assembly in Section 2(c) of the Charter. Historically, prohibiting peaceful assembly – like prohibiting association and expression – has been one of the hallmarks of tyranny. I agree with BCTF that the right to assemble for purposes of political protest is purposively, at the core of the guarantee. However, I do not agree that the right is infringed by a requirement that employees refrain from withdrawing their labour in a concerted fashion. The purpose of the right seems clear: to require the state to allow citizens the right to peacefully assemble. The purpose of the strike prohibition is not to prohibit peaceful assembly, nor is that its effect. As BCPSEA and the Attorney General point out, BCTF and its members remain free to peacefully assemble outside of working hours. That restriction – that it must be done outside working hours – cannot amount to an infringement of s. 2 (c). People commonly have a variety of obligations in their lives, including legal ones, that at any given time may practically preclude them from leaving to assemble elsewhere. Work is one of those obligations. The drafters of the Charter cannot have intended to rearrange such obligations by guaranteeing the freedom of peaceful assembly.

¶49 Accordingly, I do not find that Section 2(c) is infringed. If I had reached a contrary conclusion, I would have found the infringement justified under Section 1 for similar reasons as those set out under freedom of expression below.

[16] The primary focus of the Reconsideration Panel’s review was on whether the expanded

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (5 of 48) [3/29/2007 3:10:51 PM]

definition of strike is overbroad because of its comprehensive ban on all forms of mid-contract work stoppages, or whether the restriction is justified under s. 1 of the Charter. In a 2-1 split it concluded that the definition was saved by s. 1.

[17]
Vice-Chair Brown of the Reconsideration Panel relied on the “bright line” approach adopted by Vice-Chair Saunders. Brown concluded that a legislative ban on all forms of mid-contract work stoppages was constitutionally valid as justifiable in a free and democratic society because it “establishes the necessary bright line so that the community is clear with respect to rights” (¶74). He further stated that if he was in error on this conclusion the actions of the HEU had created a “significant adverse impact” on health care, which was critical when weighing the
s.
1 considerations. Relying on Lamer J.’s comments at ¶17-22 in Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139 [“Committee for the Commonwealth of Canada”], he reiterated that the exercise of constitutional rights does not include inflicting harm on others.

[18] Similarly, Chair Mullin of the Reconsideration Panel concluded at ¶103 that the nature of HEU’s actions did not warrant constitutional protection as “they were aimed at, and resulted in, disruption of the health care system and its employers.” He also distinguished the BCTF’s conduct from that of the HEU’s by describing the former actions as “exemplary” in their conduct of protest rallies that were voluntary, peaceful and did not involve unlawful picketing or threats from the union. In that regard, he opined at ¶102 that the actions of the teachers might have received Charter protection if the legislation had been imposed during the term of their collective agreement. However, he ultimately concluded at ¶110:

From a constitutional perspective, what occurred was within the structure of a legislature resolving a collective bargaining dispute in its view of the public interest. The governmental action from a constitutional perspective both in process and content fell within the wide birth given to legislatures to deal with such essentially social policy, economic and political matters in labour relations …

[19] Associate-Chair Fleming, in dissent, concluded at ¶42 that the definition of strike could not be saved by s. 1 on the grounds that “a legislative ban on all political strikes in the Code is largely, but not completely, justifiable under a Section 1 analysis”.

[20] It is the Reconsideration Panel’s majority decision that provides the subject matter of this judicial review pursuant to the Judicial Review Procedures Act, R.S.B.C. 1996, c. 241.

[21]
The central issue in this proceeding is whether the Codes prohibition on work stoppages during the term of a collective agreement infringes s. 2(b) of the Charter to the extent that it prohibits such activity undertaken for a political rather than a collective bargaining purpose, and, if so, is that infringement justified under s. 1 of the Charter.
B.
THE IMPUGNED CONDUCT

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (6 of 48) [3/29/2007 3:10:51 PM]

(a) The BCTF actions in 2002

[22] On January 28, 2002, the BCTF requested that its members not attend work in order to protest Bills 27 and 28. It organized rallies away from the workplace, during working hours, because it perceived the legislation as an infringement of its collective bargaining rights.

[23] The BCTF characterized the event as a “Day of Political Protest.” Throughout the province a large majority of teachers withdrew their services for the day while they attended planned rallies and demonstrations against Bills 27 and 28. They did not picket schools or any other location. Their withdrawal of services was voluntary, with no disciplinary action being taken by the BCFT against those members who chose not to participate. Those members who did participate in the rallies, however, were paid $50 out of the BCTF’s Collective Bargaining Defence Fund.

(b) The HEU actions in 2002 and 2003

[24] The HEU launched an aggressive communication and political strategy aimed at persuading the provincial government to repeal Bill 29. It employed extensive advertising campaigns using television, internet and print media to discredit the government’s legislative program for the health sector. It also organized public demonstrations, marches and petitions. It built political coalitions with labour and community groups opposed to the government. Those groups supported HEU’s position through job action that involved picketing at Burnaby Hospital in June 2002, and blockading the premises of a private laundry contractor near Chilliwack in November 2002.

[25] The HEU punctuated its protest on January 28, 2003, by holding concerted job action throughout the lower mainland to coincide with the anniversary of the enactment of Bill 29. At about 6:00 a.m., before the morning shift began, HEU members put up picket lines at the entrances to several facilities. They barricaded hospital entrances denying access to patients, staff, physicians and delivery trucks. At Children’s and Women’s Hospital there were instances of physical confrontations between HEU members on the picket line and those seeking access to the hospital. Those confrontations included HEU members banging on vehicles attempting to cross the picket line to enter the hospital and yelling at individuals inside the cars.

[26]
HEU locals at the various facilities that were targeted for picketing activities unilaterally decided to apply the 2001 LRB-mandated essential service levels, with some adjustment for the health care facilities lack of notice of the action. HEU members, who were not designated essential by the union, converged at a protest rally at Vancouver’s Plaza of Nations. At the rally, HEU members wore signs, including “HEU on strike” and “HEU Protest”. The picketing ended shortly after 12:00 noon and by 4:00 p.m. the protest actions were in all respects over.
C.
THE PARTIES’ POSITIONS

[27] The BCTF characterizes its rallies away from the work force as a voluntary and peaceful

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (7 of 48) [3/29/2007 3:10:51 PM]

form of political expression for which s. 2(b) protection is guaranteed. It submits the expanded definition of strike imposes an absolute ban on mid-contract work stoppages for a political purpose and as such infringes s. 2(b).

[28] The HEU acknowledges its conduct constituted job action. However, it seeks to differentiate its picketing activities from its mid-contract work stoppage to attend the organized protest rally arguing that the latter action is constitutionally protected by s. 2(b).

[29] Both petitioners assert their actions were aimed at protesting the legislation that imposed collective agreements upon their members. They deny their conduct was a manifestation of a collective bargaining dispute as defined in the Code. Both submit that if the Court concludes that their protest activities are captured by the definition of strike, then the definition contravenes their s. 2(b) Charter right to freedom of expression and cannot be saved by s. 1.

[30]
The respondent employer associations, the AGBC, and the two interveners characterize the petitioners’ actions as concerted mid-contract work stoppages that constitute prohibited strike activity under the expanded definition for which there is no constitutional protection under
s.
2(b). They contend that the definition of strike does not contravene s. 2(b) of the Charter as it does not prohibit the petitioners from engaging in political expression in the form of protest rallies, provided only that they do not do so during work hours while they are subject to a collective agreement. They further submit that if the Court concludes the definition of strike does infringe s. 2(b) of the Charter, it is saved by s. 1 as being demonstrably justified in a free and democratic society.
D.
The CODE

[31] The current version of the Code was first introduced in the Legislature during 1973. Its stated purpose is to secure industrial peace in the province.

[32] The expanded definition of strike in the Code is shared by six other provinces and the Canada Labour Code, R.S.C. 1985, c. L-2.

[33] Section 2 of the Code sets out the objects and duties of those exercising the Codes powers. Four of its eight objects are directed at ensuring the peaceful settlement of labour disputes. Sections 2(f) and (g), respectively, list two of the Codes objectives as reducing the impact of strikes on third parties and ensuring the public interest is protected during labour disputes.

[34] Part 5 of the Code creates a comprehensive bargaining regime between provincially-regulated employers and unionized employees. Its stated purpose is to provide stability during the term of the collective agreement and to minimize the negative impact of labour disputes on third parties. The regime enhances the ability of unionized employees to negotiate the terms or conditions of their employment by authorizing a limited right to strike during the period of

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (8 of 48) [3/29/2007 3:10:51 PM]

collective bargaining. It also prohibits strike activity during the term of the collective agreement making it presumptively illegal.

[35] Part 5 of the Code sets out a protocol directed at the physical actions of striking employees. It does not impose conditions on the content of those actions while the right to strike is being exercised.

[36]
The Code further creates a Labour Relations Board (the “LRB”), with an expanded jurisdiction to act as an independent, administrative tribunal, mandated to mediate and adjudicate employment and labour relations matters related to unionized employees.
E.
THE ISSUES ON JUDICIAL REVIEW

[37] The HEU challenges the Reconsideration Panel’s decision to exclude its actions from s. 2(b) protection on the ground that its acts of violence and intimidation could be severed from its non-violent activities.

[38] Both petitioners seek to distinguish work stoppages for a political purpose from strikes for a collective bargaining purpose. They submit the definition of strike should not be read so as to capture work stoppages organized to protest a governmental decision that is considered unjust and unfair, as the latter is not intended as job action for collective bargaining purposes.

They claim that if mid-contract work stoppages to attend political protest rallies are considered strike activity, such an interpretation limits their s. 2(b) freedom of expression by operating in an unfair, arbitrary and unduly restrictive manner.

[39] The BCTF further challenges the Reconsideration Panel’s dismissal of its claims of ss. 2

(c) and 2(d) infringements.

[40] Both petitioners challenge the Reconsideration Panel’s s. 1 determination.

[41] The respondents seek judicial review of the Reconsideration Panel’s decision that the definition of strike infringes s. 2(b) of the Charter. They claim there is no distinction to be made between work stoppages for a political purpose and ones for a collective bargaining purpose.

They submit that such a distinction is even more difficult to justify when examining job action in the public sector, where the economic interests of the employer are often closely tied to the political aims of the government. They maintain that during the period of the work stoppage, it would be impractical to determine on a case-by-case basis if the purpose of the strike was political or otherwise given the significant evidence and complex arguments such an issue would likely involve.

[42] The Coalition of B.C. Business and the Business Council of B.C. were granted intervener status in this proceeding. See BCTF v. BCPSEA, 2005 BCSC 1435. They support the position of the respondent employer associations and focused their submissions on the economic consequences to business interests in the province if the definition of strike is found to be unconstitutional.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (9 of 48) [3/29/2007 3:10:51 PM]

[43] The parties agree that the standard of review of the Reconsideration Panel’s decision on the constitutionality of the definition of strike is that of correctness. See Cuddy Chicks v. Ontario Labour Relations Board, [1991] 2 S.C.R. 5 at ¶17; United Food and Commercial Workers, Local 1518 v. Kmart Canada Ltd., [1999] 2 S.C.R. 1083 [“Kmart”] at ¶69; and, Nova Scotia (Workers Compensation Board) v. Martin, [2003] 2 S.C.R. 504 at ¶31.

F. DISCUSSION OF COLLATERAL ISSUES
(a) Jurisdiction of Reconsideration Panel on findings of fact
[44] The HEU contends the Reconsideration Panel’s decision interfered with the finding of

facts in the original LRB decision and therefore exceeded its jurisdiction. It submits the standard of review for revisiting factual findings is that of patent unreasonableness. It argues that considerable deference must be given to the original LRB’s findings of fact, which determined that the HEU’s incidents of violence and intimidation on the picket lines were not sufficiently serious or significant so as to remove HEU’s conduct from s. 2(b) protection. In support of its submission, the HEU relies on Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 [“Dr. Q.”].

[45] Dr. Q. was an appeal from a decision of an Inquiry Committee of Physicians and Surgeons that found Dr. Q guilty of infamous conduct after finding that he had engaged in sexual relations with a patient. The tribunal suspended his licence to practice medicine for a period of 18 months. The reviewing judge extensively canvassed the evidence before the tribunal, reconsidered its findings of fact and ultimately overturned its decision. The Court of Appeal applied a standard of deference to the reviewing judge’s findings of facts and upheld her decision. The Supreme Court of Canada restored the tribunal’s decision, concluding that had the tribunal’s decision been reviewed on the proper standard of reasonableness simpliciter, it would have been upheld.

[46] At ¶35 of Dr. Q., McLachlin C.J. summarized the four contextual factors to be considered in the pragmatic and functional approach (privative clause or statutory right of appeal, tribunal’s expertise, purpose of legislation, and nature of question) in determining which of the three conventionally recognized standards for judicial review (factual error, legal error or mixed factual and legal error) are to be applied. The court concluded that where balancing the four contextual factors raises a factually-based error, considerable deference will be given to a tribunal’s decision and the standard of patently unreasonable will apply on a legally-based error, little or no deference will be required and the standard of review will be that of correctness, and; on an error of mixed fact and law the standard of reasonableness simpliciter will prevail.

[47] In my view, however, the circumstances of this case are distinguishable from Dr. Q. Here, the Reconsideration Panel’s review jurisdiction is derived from s. 99 of the Code:

[99 (1)] On application by a party affected by the decision or award of an arbitration

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (10 of 48) [3/29/2007 3:10:51 PM]

board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)
a party to the arbitration has been or is likely to be denied a fair hearing, or
(b)
the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations. [Emphasis added.]

[48] Section 99 gives the Reconsideration Panel the authority to review an original LRB decision through the perspective of labour relations principles that have been developed through the LRB’s and the courts’ jurisprudence.

[49] Before the original LRB tribunal, the HEU relied on a detailed “Statement of Agreed Facts”. The Statement of Agreed Facts also was reproduced for the hearing before the Reconsideration Panel decision and for this judicial review. It includes an acknowledgment that HEU members blocked entrances to the Children’s and Women’s Hospital, banged on vehicles, and yelled at occupants. The HEUBC also led additional evidence at the original LRB hearing of altercations between HEU members and the public at a number of health care facilities. Together, that was the extent of the evidence on the HEU’s involvement in the events of January 28, 2003.

[50] Based on that evidence, Vice-Chair Brown found that the HEU’s acknowledged “picketing action and disruption” had occurred at a number of health care facilities throughout the lower mainland. His findings of fact were based on The Statement of Agreed Facts. He then interpreted those facts through the analytical lens of McIntyre J. in R.W.D.W.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 [“Dolphin Delivery”] at 588:

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 the freedom of expression. That freedom, of course, would not extend to threats of violence or acts of violence.

[51] The Reconsideration Panel did not interfere with the findings of fact in the original LRB decision. Those findings were based on The Statement of Agreed Facts, which the Reconsideration Panel reinterpreted according to its application of the relevant legal principles.

The difference of opinion between the original and the review decisions lay not in their finding of the facts but in their conclusions regarding the seriousness of the HEU’s total conduct and the application of that conclusion to the accepted exclusions of s. 2(b) protection. This falls squarely within Charter jurisdiction and is therefore open to this Court to review on the standard of correctness.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (11 of 48) [3/29/2007 3:10:51 PM]

(b) Section 8 of the Code

[52]
BCTF distinguishes its actions from those of the HEU by underscoring the voluntary and peaceful nature of its political protest, which did not involve picketing activity. Characterized in that manner, the BCTF submits that its actions did not fall within the Codes prohibition against work stoppages during the term of a collective agreement but were rather an exercise of its fundamental right to freedom of expression that engages the “right to communicate” provision of
s.
8 of the Code which provides:

Subject to the regulations, a person has the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion.

[53] BCTF relies on Allsco Building Products Ltd. v. United Food and Commercial Workers, International Union, Local 1288P (U.F.C.W.), [1999] 2 S.C.R. 1136 [“Allsco”], and its companion decision, Kmart, as authority for its submission on the applicability of s. 8 of the Code.

[54] In Allsco, the appellant union’s members were locked out by their employer Allsco. In response, the union members distributed leaflets outside the premises of the four non-Allsco respondents by approaching vehicles and offering leaflets to occupants. They did not trespass or block access or egress of the premises. The court found the impugned legislation, s. 104(2) of the New Brunswick Industrial Relations Act (“NBIRA”), appeared to prohibit even peaceful leafleting and this was potentially an infringement of s. 2(b). However, s. 5(4) of the NBIRA provided that: “Nothing in this section or in this Act shall be deemed to deprive a trade union … of freedom to express its … views so long as it … does not exercise that freedom in a manner that is coercive, intimidating, threatening or intended to unduly influence any person.”

[55] At ¶23, the court reconciled the two statutory provisions by reading down s. 104(2) to limit its application “to forms of persuasion that were coercive, intimidating, threatening or intending to cause undue influence”. Iacobucci J. further noted that the decision of whether a particular case crosses the line and enters impermissible persuasion is reliant on the facts.

[56] This same point was also emphasized by Cory J. in Kmart, which involved the Codes prohibition against secondary picketing during lawful strikes. In that case, members of the appellant union, during a labour dispute with Kmart, distributed leaflets at other Kmart stores. The court distinguished their actions from conventional picketing, and found that the distribution of the leaflets was peaceful and neither impeded access or egress nor contained elements of violence or intimidation. At ¶57, Cory J. recognized that whether leafleting could be construed as picketing, or even secondary picketing, would depend on the factual circumstances of the leafleting activities. He opined that distributing leaflets with placards, impeding access to and egress from targeted premises, or directing leaflets towards workers in the premises rather than customers might be found to constitute picketing. The court concluded that the definition of

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (12 of 48) [3/29/2007 3:10:51 PM]

picketing, which prohibited all forms of leafleting, was overbroad and infringed s. 2(b) in a manner that was not justified under s. 1.

[57] The BCTF argues that in light of s. 8, a reading down of the expanded definition of strike to exclude work stoppages for wholly political purposes is analogous to the reading down in Allsco, and is appropriate in the current circumstances.

[58] BCPSEA submits that the BCTF cannot advance an argument on s. 8 of the Code at this stage of the proceedings as it was not raised before the LRB in either the original tribunal or the Reconsideration Panel. It argues that it would be inappropriate of the Court to make a determination on the interpretation of s. 8 of the Code without the benefit of the LRB’s analysis of its enabling statute and in a case that raises constitutional issues. BCPSEA further submits that the Court is required to show deference to the LRB on matters concerning its enabling statute and relies on MacNutt Enterprises Ltd. v. British Columbia (Director of Employment Standards), 2004 BCSC 1575, in support of that position.

[59] In Allsco, the s. 5(4) argument was not advanced until the intervener introduced the matter before the Supreme Court of Canada. That court agreed to hear the argument and decided the issue on its merits. I am satisfied that based on the reasoning in Allsco, BCTF should not be precluded from advancing an argument founded on s. 8 of the Code at this stage of the proceedings, although preferably such arguments should first be advanced with the LRB.

However, I am also satisfied that the decision in Allsco is distinguishable on its facts from the circumstances in this proceeding.

[60] In Allsco, the impugned activity was the peaceful distribution of leaflets. In this case the impugned activity involves work stoppages for a political purpose. In my view, if s. 8 was “read down” to exclude mid-contract work stoppages for political purposes, short of intimidating or coercive behaviour, the section could be used to undermine the whole collective bargaining regime created in Part 5 of the Code, which regulates the limitations on strikes and lockouts during the term of a collective agreement.

[61] For these reasons, I find the s. 8 submission must fail on the facts.

(c) International Law and the effect of the Committee on Freedom of Association of the International Labour Organization (the “ILO Committee”)

[62] The BCTF submits the Court should adopt as persuasive authority the findings of the ILO Committee in the context of a s. 1 analysis that was made in association with complaints to the ILO Committee respecting Bills 27 and 28 and their inhibitive effect on the freedom of association and freedom of collective bargaining (Case No. 2173, Case No. 2180, and Case No. 2196). The BCTF further seeks to have the Court extend the ILO Committee findings to the issues in this proceeding in regard to the ss. 2(b), 2(c) and 2(d), based on Canada’s obligations as a member of the ILO and the Philadelphia Declaration, to which the federal government adhered upon taking ILO membership.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (13 of 48) [3/29/2007 3:10:51 PM]

[63] However, the ILO Committee’s comments were directed at contemplated litigation to challenge the constitutionality of Bills 27 and 28. That issue is quite distinct from the issue in this proceeding. Moreover, while international law can offer some scope for the interpretation of the Charter, it is not binding on Canadian courts. As Dickson C.J. (in dissent) stated in Reference Re Pubic Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 [the “Alberta Reference”] at ¶60:

In short, though I do not believe the judiciary is bound by the norms of international law in interpreting the Charter, these norms provide a relevant and persuasive source for interpretation of the provisions of the Charter, especially when they arise out of Canada's international obligations under human rights conventions.

[64]
There are other difficulties with this argument including the inherent constitutional issues that arise when the federal government undertakes an international obligation that domestically lies under provincial authority. In the context of this proceeding, I am not persuaded the ILO Committee’s opinions on the constitutionality of the legislation are relevant to the constitutional issues to be determined.
s.
2 of the Charter because the Codes prohibition against concerted work stoppages during the currency of a collective agreement applies only to unionized employees. In support of its submission the BCTF relies on Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69 at ¶47 [”Osborne”] where the court held that the scope of the s. 2(b) guarantee could not be limited because of the particular status of the holder of the right, which was in that case public servants. This reasoning was also applied by the majority in British Columbia Public School Employers Association v. British Columbia Teachers Federation, 2005 BCCA 393, [“BCPSEA v. BCTF”] where the court held at ¶29 that the s. 2(b) rights of teachers in their work environment could not be excluded by reason of their employment status.
G. GENERAL COMMENTS
(a) Does the Code discriminate against unionized employees?
[65] The BCTF contends that the definition of strike is discriminatory and therefore infringes

[66] The BCTF relies on Young v. C.N.R., [1931] 1 D.L.R. 645 (P.C.) at 4, and International Ladies Garment Workers Union v. Rother, [1923] 3 D.L.R. 763, as authorities for the proposition that historically there existed a common law right for individuals to withdraw their labour in order to address a grievance. It submits this right predates and underlies the modern provisions of Part 5 of the Code, which give unionized employees the statutory right to collectively withdraw their services during the period of collective bargaining without sanctions.

[67] However, the development of labour relations rights and regulations goes far beyond these two authorities. In my view, one must be cautious about reaching back in time and relying on isolated decisions without carefully examining the context in which the historical right to strike has developed.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (14 of 48) [3/29/2007 3:10:51 PM]

[68] In Bhindi v. British Columbia Projectionists, Local 348, (1986) 4 B.C.L.R. (2d) 145 (B.C.C.A.), Anderson J.A., writing in dissent, provided in obiter dicta at ¶41-58, a summary overview of the common law and statutory background of labour relations legislation. He concluded his comments at ¶58 by noting that:

¶58 [A]t common law unions had no legal existence and were in fact illegal. While the members of unions, as individuals, had the right to strike and to engage in peaceful picketing, collective agreements including "closed shop" provisions were unenforceable at law as being in restraint of trade. Unions had no means of enforcing union rules, including rules relating to fund raising or of protecting union property. Employers were not required to bargain and were free to engage in "unfair labour practices". Union members could become liable for the tort of civil conspiracy if they acted together with intent to harm another person by interfering with his business. They could also be liable for the tort of inducing breach of contract. Secondary picketing was unlawful. Gradually over a long period of time, the legislatures redressed the balance and, by statute, overruled the restraints imposed by common law. An exclusively statutory system of industrial self-government was imposed on both labour and management. Unions were recognized as separate legal entities and were given the exclusive power to bargain for all employees and to conclude collective agreements enforceable by the Labour Relations Board. The employer was required to "bargain in good faith". Unfair labour practices were forbidden. Secondary picketing was permitted. In short, at common law, unions were powerless to conclude enforceable collective agreements and, apart from the right to strike and engage in peaceful picketing, by reason of the fetters placed upon them, were unable to bargain from strength. By statute, unions have been given legal status. Their bargaining strength has been greatly increased. Most important of all, they have been given the discretionary power to enter into collective agreements which, at common law, were unlawful as being in restraint of trade. In other words, as all of the powers of unions are powers bestowed by the legislature, those powers are "governmental" in nature.

[69] This historical and contextual review of the common law right to withdraw services supports the current understanding that the collective or concerted right to withdraw services did not exist before it was authorized by statute.

[70] At ¶177 in Alberta Reference, McIntyre J. commented on the fallacy of attempting to distinguish between the work stoppage of an individual employee and the concerted withdrawal of services by a group of employees:

When this definition of freedom of association is applied, it is clear that it does not guarantee the right to strike. Since the right to strike is not independently protected under the Charter, it can receive protection under freedom of association only if it is an activity which is permitted by law to an individual. Accepting this conclusion, the

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (15 of 48) [3/29/2007 3:10:51 PM]

appellants argue that freedom of association must guarantee the right to strike because individuals may lawfully refuse to work. This position, however, is untenable for two reasons. First, it is not correct to say that it is lawful for an individual employee to cease work during the currency of his contract of employment. Belzil J.A., in the Alberta Court of Appeal, in the case at bar, dealt with this point in these words:

The argument falters on the premise that cessation of work by one person is lawful. The rationale advanced for that premise is that the courts will not compel a servant to fulfil his contract of service, therefore cessation of work by a servant is lawful. While it is true that the courts will not compel a servant to fulfil his contract of service, the servant is nevertheless bound in law by his contract and may be ordered to pay damages for the unlawful breach of it. It cannot be said that his cessation of work is lawful.

The second reason is simply that there is no analogy whatever between the cessation of work by a single employee and a strike conducted in accordance with modern labour legislation. The individual has, by reason of the cessation of work, either breached or terminated his contract of employment. It is true that the law will not compel the specific performance of the contract by ordering him back to work as this would reduce “the employee to a state tantamount to slavery”… But, this is markedly different from a lawful strike. An employee who ceases work does not contemplate a return to work, while employees on strike always contemplate a return to work. In recognition of this fact, the law does not regard a strike as either a breach of contract or a termination of employment. …

[71] The BCTF also claims the Code creates a discrepancy between the regulation of “political strikes” and the regulation of “political lockouts”. It points to the definition of “lockout”, which does not prohibit employers from locking out employees as a form of political protest, and compares it to the definition of strike which does prohibit “strike activity” for a political purpose.

[72] There is no requirement in the Code for symmetry between employers and employees. The Code is a balancing scheme created to secure industrial peace. There has never been, nor was there in this case, evidence to suggest that public sector employers have or would shut down public services as a form of political protest. It is also improbable that private sector employers would lock out employees as a manner of political protest because of the financial disincentives of such action. In short, there is no evidence that the risk of “political lockouts” might threaten the Legislature’s objective of maintaining the integrity of the labour relations regime. As such, there is no demonstrated need at this time for comparable legislation in relation to employers in order for a labour relations regime to meet its objective of industrial peace.

(b) The political nature of labour legislation

[73] Labour codes are creatures of legislatures. The right to strike is created by statute and it

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (16 of 48) [3/29/2007 3:10:51 PM]

can be changed by statute. The focus of labour legislation, including the rights and obligations of competing interests affected by such legislation, often changes when governments change.

[74] The balancing of competing interests inherent in the drafting of labour codes necessarily involves political choices. As a consequence of that process, courts have generally deferred to the role of the legislature in its undertaking of that task, subject to the court’s constitutional oversight “with such choices where a more fundamental value is at stake and where it is apparent that a free and democratic society cannot permit the policy to interfere with the right in the circumstances of the case.” See Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 [“Dunmore”].

[75] The extent of the deference given to legislative labour codes was discussed in R.W.D.S. U., Local 558 v. Pepsi Cola Beverages (West) Ltd., [2002] 1 S.C.R. 156, 2002 SCC 8 [“Pepsi”]. Pepsi involved secondary picketing, not as defined by the Saskatchewan legislature, but by the common law tort of secondary picketing. While the Charter did not apply directly in that case, the court modified the common law through the adoption of Charter values by weighing the constitutional right to freedom of expression against the common law right of third parties to be shielded from “undue” harm. It concluded that some economic harm to third parties was a necessary cost of resolving industrial conflict, but reiterated that the legislature could still regulate picketing by striking a different balance from the one imposed by the court. In that regard, McLachlin C.J. and Lebel J., in joint reasons on behalf of the court, acknowledged the court’s historical deference to legislatures in the field of labour relations by stating at ¶85:

Judging the appropriate balance between employers and unions is a delicate and essentially political matter. Where the balance is struck may vary with the labour climates from region to region. This is the sort of question better dealt with by legislatures than courts. Labour relations is a complex and changing field, and courts should be reluctant to put forward simplistic dictums. …

Within the broad parameters of the Charter, legislatures remain free to craft their own statutory provisions for the governance of labour disputes, and the appropriate limits of secondary picketing.

[76] The court further commented on the imposition of legislative restrictions to regulate picketing activities at ¶107:

Clarification of the status of picketing at common law should not be viewed as a restriction on the legislative intervention. Rather it should be seen merely as a tool to assist the courts where federal and provincial laws remain silent. As mentioned earlier, different circumstances in different parts of the country may call for specifically tailored legislative regimes. Legislatures must respect the Charter value of free expression and be prepared to justify limiting it. But subject to this broad constraint, they remain free to develop their own policies governing secondary

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (17 of 48) [3/29/2007 3:10:51 PM]

picketing and to substitute a different balance than the one struck in this case.

(c) The right to strike

[77] Pre-Charter, the right to strike was rejected as a “fundamental freedom” in the context of a politically-motivated work stoppage. In Domglas Ltd. v. U.G.C.W., [1976] O.L.R.B. Rep. 569 [the “OLRB Domglas”], the Ontario Labour Relations Board (the “OLRB”) considered the meaning of the statutory definition of strike in legislation that was similar to the expanded definition of strike in the Code in that it prohibited “untimely strikes” other than for collective bargaining purposes. The OLRB identified only two essential conditions for conduct to be characterized as a strike within the statutory definition, namely concerted employee activity and some disruption of the employer’s operation. It framed the issue to be determined as “whether we should read into this definition a further condition that the conduct be carried out for the purpose of obtaining concessions from the employer, or some other employer.”

[78] At ¶15 the OLRB concluded there was no additional requirement for conduct to be categorized as strike activity:

The definition of strike … still appears consistent with the overall scheme of the Labour Relations Act. The Act treats the work stoppage as being, in essence, an economic weapon, and restricts its use to a certain collective bargaining situation – the final stages of the negotiation or renewal of a collective agreement. To avoid disruptions in production and to promote industrial relations harmony, all work stoppages occurring outside this limited period, whatever their underlying motive, are prohibited. The wider definition of strike, therefore, is just as consistent with the overall scheme of the Labour Relations Act as the more narrow definition suggested by the respondents. It is a definition, moreover, that is far more consistent with the plain meaning of the Act and the previous interpretations given to the Act by this Board.

[79] At ¶22 the OLRB commented on the historical role of the right to strike as an economic weapon rather than as a form of political expression:

[T]he remaining question, and it is fundamental, is whether the right to strike amounts to a basic political right that should be protected from provincial encroachment. We think not. The strike in Canada, unlike the situation in some European countries, has seldom been used as a form of political expression. It can hardly be regarded, therefore, as the “traditional form” of the exercise of the right of public debate, and its curtailment can hardly be regarded as substantially interfering with “the working of the parliamentary institutions of Canada”. The history of the strike in Canada has been one of its use as an economic weapon in the collective bargaining process. Its transformation into a form of political expression has very recent origins, as we are all aware. This sudden transformation, in our opinion, cannot result in overnight legitimacy as a basic political right. What we have,

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (18 of 48) [3/29/2007 3:10:51 PM]

therefore, is a collective bargaining sanction being used for a political purpose, and not the exercise of a basic political right.

[80]
On judicial review, the OLRB’s decision was upheld and its comments endorsed in Re United Glass Ceramic Workers of North America et al. and Domglas Ltd. et al. (1978), 19 O.
R.
(2d) 353 (Ont. H. Ct.) [“Domglas”]. At ¶2 of Domglas, the court reframed the issue as: “[D] oes the Province of Ontario have the legislative authority to prohibit work stoppages that are political in nature?” The court answered the question in the affirmative by stating at ¶30-31:

¶30 Freedom of speech and expression connotes the articulation of a point of view, but the withdrawal from the community of any of the factors of production, whether capital, labour or resources, as a result of concerted (not individual) action, in my opinion, is not an aspect of the fundamental freedoms of speech and expression, association, religion, or the press. Nor is it a freedom standing by itself. When carried to a sufficient degree, such concerted action must result in holding the local or national society hostage to secure the aims of the participants. That is not freedom of speech; it is coercion that, so far from ensuring the free working of parliamentary institutions, must ultimately impair it.

¶31 The statutory limitation on work stoppage for political purposes does not, therefore, constitute a limitation on any of the fundamental freedoms mentioned. So far as I can assess it, it cannot be said to “substantially interfere with the working of the parliamentary institutions of Canada”, so as to place it beyond the purview of the provincial Legislature.

[81] Post-Charter, the Supreme Court of Canada has also rejected the notion of a constitutional guarantee for the right to strike: Alberta Reference; Retail, Wholesale and Department Store Union v. Saskatchewan, [1987] 1 S.C.R. 460 [“RWDSW v. Saskatchewan”]; and Public Service Alliance of Canada v. The Queen in Right of Canada, [1987] 1 S.C.R. 424 [“PSAC v. Canada”] (the “labour trilogy”). Although dealing with a claim that s. 2(d) of the Charter provided constitutional protection for the right to strike, McIntyre J. in the Alberta Reference made the following broad comments at ¶182:

A further problem will arise from constitutionalizing the right to strike. In every case where a strike occurs and relief is sought in the courts, the question of the application of s. 1 of the Charter may be raised to determine whether some attempt to control the right may be permitted. … The section 1 inquiry involves the reconsideration by a court of the balance struck by the Legislature in the development of labour policy. … if the right to strike is found in the Charter, it will be the courts which time and time again will have to resolve these questions, relying only on the evidence and arguments presented by the parties, despite social implications of each decision. This is a legislative function into which the courts should not intrude. It has been said that the courts, because of the Charter, will have to enter the legislative sphere. Where rights are specifically guaranteed in the

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (19 of 48) [3/29/2007 3:10:51 PM]

Charter, this may on occasion be true. But where no specific right is found in the Charter and the only support for its constitutional guarantee is an implication, the courts should refrain from intrusion into the field of legislation. This is the function of the freely-elected Legislatures and Parliament.

[82] Similarly, Le Dain J. (writing for Le Dain, Beetz and La Forest JJ.). concurred at ¶142, that the right to strike was not a “fundamental right or freedom”:

The rights for which constitutional protection is sought – the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer – are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise. It is surprising that in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action we should be considering the substitution of our judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature has found it necessary to define and qualify in various ways according to the particular field of labour relations involved.

(d) Harm to third parties from strikes

[83] Historically, restrictions on the right to strike have been directed at limiting the economic harm to third parties that is caused by strike activity. Courts have recognized that a certain degree of harm to unrelated third parties caused by strike activity is a legitimate price for society to pay in encouraging parties involved in a workplace dispute to resolve their differences in a manner acceptable to both.

[84] This aspect of strike activity was commented upon by Dickson C.J. in RWDSU v. Saskatchewan at ¶30:

I do not mean to suggest that any economic harm to a third party will suffice to justify the abrogation of the right to strike. In an interdependent economy it is inevitable that a work stoppage in one industry will entail detrimental economic consequences for at least some individuals in other industries.

[85] Strikes are an effective economic tool in securing collective agreements because of the widespread disruption they cause to both the employer and unrelated third parties. The latter become a captive audience who may bring pressure to bear on an employer to settle the terms or conditions of the collective agreement with its employees. Broader communities who are affected by the workplace dispute can also bring pressure to bear on both sides to settle their differences.

[86] In contrast, a public sector work stoppage motivated by the desire to effect political change rather than terms or conditions of employment has the potential to cause harm to some

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (20 of 48) [3/29/2007 3:10:51 PM]

of the most vulnerable individuals in society. In that context, the strike weapon has not been so readily accepted. The undue harm caused by politically motivated work stoppages was acknowledged by the OLRB in Re General Motors of Canada Ltd., [1996] O.L.R.D. No. 2056 [“Re General Motors”] at ¶171:

Defining what is or is not a political protest strike (and thus what is or is not “unlawful”) is at least as difficult as determining when the expenditure of Union funds is or is not for “collective bargaining purposes”– something that three of the judges in Lavigne considered so burdensome and uncertain in application that it would be unreasonable to require the Legislature to prescribe the limitation in that way. And of course, the immediate result of the strike is rather more serious for employers and the community then whether some miniscule portion of an employee’s compulsorily Union dues are devoted to some cause with which an employer may disagree. At the very least, a legislated exception for political strikes would probably mean that such strikes would become a regular feature of the labour relations landscape, given the number of government initiatives that could spark such response. Political strikes may or may not be good for the community or the economy; but it is no accident that a highly unionized (and politicized) jurisdiction like British Columbia, which once permitted “political strikes”, has now adopted the more restrictive Ontario approach.

When all of these factors are considered, it seems to me that the balancing embodied in the Ontario statute (in common with others in Canada) is within the realm of reasonableness that the Courts have accorded to legislatures when addressing labour relations problems of this kind. In other words, the legislative means – a strict prohibition on strikes during a collective agreement – are not disproportionate in relation to the overall goal of containing industrial conflict, nor does such restriction unduly or unnecessarily impede the employees’ freedom of expression.

[87] The courts have also recognized the harm caused by work stoppages on the public interest and broader workplace relationships. See Domglas at 11 quoted at ¶78 above, and R.

W.D.W.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 [“Dolphin Delivery”]. In the context of picketing, the court in Dolphin Delivery commented on the social cost of collective economic measures at ¶23:

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 legitimate weapon to be

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (21 of 48) [3/29/2007 3:10:51 PM]

employed in a labour dispute by the employees against their employer, it should not be permitted to harm others. [Emphasis added.]

[88]
In summary, the harm to unrelated third parties caused by work stoppages, whether defined as strike activity or a form of political expression, is a factor to be weighed in balancing the competing interests affected by the activity.
H.
DISSCUSION OF THE CHARTER ISSUES

[89] The petitioners focus their claims on an infringement of s. 2(b) of the Charter. The BCTF also alleges ss. 2(c) and 2(d) infringements.

[90] Section 2 is the definitional stage of the Charters protected rights and freedoms. Section 1 is the justification stage for an infringement of those protected rights and freedoms.

[91] Section 2 of the Charter provides:

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; c) freedom of peaceful assembly; and d) freedom of association.

[92] Guidelines for Charter interpretation were set out in Big M Drug Mart, which provided for a purposive approach in construing the rights and freedoms guaranteed by the Charter. On behalf of the majority, Dickson J. described the purposive approach at ¶117:

The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charters protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Courts decision in Law Society of Upper Canada v. Spakinker, [1984] 1 S.C.R. 357, illustrates, be placed in its proper linguistic, philosophic and historical contexts.

[Emphasis added by McIntyre J. in Alberta Reference.]

[93] The importance of the contextual background to a Charter analysis was reiterated by McIntyre J. in the Albert Reference at ¶149, subject to a caution at ¶151 that:

It follows that while a liberal and not overly legalistic approach should be taken to constitutional interpretation, the Charter should not be regarded as an empty vassal to be filled with whatever meaning we might wish from time to time. The

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (22 of 48) [3/29/2007 3:10:51 PM]

interpretation of the Charter, as of all constitutional documents, is constrained by the language, structure and history of the constitutional text, by constitutional tradition, and by the history, traditions and underlying philosophies of our society.

[94] I turn now to the constitutional, historical and underlying philosophies of the ss. 2 (b), 2

(c) and 2(d) Charter rights.

(a) Section 2 (b) – Freedom of expression

[95]
Pre-Charter, freedom of expression reached “quasi-constitutional” status with the concept of an implied bill of rights for political expression. See Switzman v. Elbling, [1957] S.C.
R.
285; and Samur v. City of Quebec, [1953] 2 S.C.R. 299. The federal Bill of Rights, enacted August 10, 1960, contained provisions protecting concepts of freedom of speech and expression. Even in the absence of constitutional protection, courts acknowledged the importance of political expression in a series of decisions that struck down legislative attempts to trammel such expression. See R. v. Keegstra, [1990] 3 S.C.R. 697 [“Keegstra”] at ¶186–89.

[96] Post-Charter, s. 2(b) continues to be given a broad and generous interpretation that includes political expression as an integral part of the fundamental right: Kmart at ¶21-22; and Pepsi at ¶32. The importance of unionized employees’ contribution to political debate was recognized (Dunmore at ¶38), as was the key role that freedom of expression has played in the historical development of the political, social and education institutions of western society (Dolphin Delivery at ¶12). Freedom of expression continues to be the foundation of our democratic society. As stated by Cory J. in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at ¶3, and reiterated in Keegstra, it would be “difficult to imagine a guaranteed right more important to a democratic society than freedom of expression”.

[97] The scope of s. 2(b) protection has become more clearly defined since it was first addressed in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927 [“Irwin Toy”].

The circumstances of Irwin Toy involved a ban on advertising directed at children. In that case, the court applied a broad purposive approach in creating a two-stage analysis.

[98] At the first or definitional stage, the court broadly defined expression as having both content and form, both of which can be “inextricably connected” (¶41). All activities which convey or attempt to convey meaning are included in the definition of “expression”. Any expressive activity, regardless of its content, is presumptively guaranteed s. 2(b) protection except for violence, which as a method of expression is excluded from constitutional protection.

The court further distinguished between content-based expression (communicating an expressive activity) and form-based expression (physical activity), stating that restrictions on the former will likely breach s. 2(b) while restrictions on the latter will likely not breach s. 2(b). In the latter instance, the court stated, the aim of the restriction is to control the physical consequences of an activity and not its expression.

[99] If an activity is found to fall within the scope of the s. 2(b) right to freedom of expression,

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (23 of 48) [3/29/2007 3:10:51 PM]

the second stage of the Irwin Toy analysis requires the court to determine whether the purpose or effect of the impugned law or government action actually restricts freedom of expression. The purpose of the restriction is the “facial” purpose of the legislative technique adopted by Parliament to achieve a particular end (see R. v. Zundel, [1992] S.C.J. No. 70 [“Zundel”]. If the purpose is found to restrict freedom of expression, the impugned law or action will likely constitute an infringement of s. 2(b). If it does not, the court will look at whether the effect of the restriction infringes freedom of expression. At that stage of the analysis, the burden is on the claimant to demonstrate that the effect of the restriction undermines at least one of the three core values underlying the s. 2(b) guarantee; these being (1) the promotion of truth (truthfinding), (2) social and political participation (democratic discourse), and (3) self-fulfillment (¶53).

[100] Violence is excluded from s. 2(b) protection as a method of expressive activity. This exclusion was established in Dolphin Delivery where the court held that freedom of expression does not extend to protect threats or acts of violence, and was confirmed in Irwin Toy.

[101] A further exclusion may arise based on the location of the activity as occurred in Committee for the Commonwealth of Canada. That case involved the distribution of leaflets at an airport concourse. Six of the seven justices concluded that a restriction on the location of expressive activity did not necessarily infringe the s. 2(b) right. McLachlin J., (now C.J.) restated the Irwin Toy test at ¶242:

The test for whether s. 2(b) applies to protect expression in a particular forum depends on the class into which the restriction at issue falls. If the government’s purpose is to restrict the content of expression through limiting the forums in which it can be made, then this, as Cox says, is “usually impermissible”. The result, under the Canadian Charter of Rights and Freedoms, is that s. 2(b) applies. If, on the other hand, the restriction is content-neutral, it may well not infringe freedom of expression at all. In this case, the jurisprudence laid down in Irwin Toy requires that the claimant establish that the expression in question (including its time, place and manner) promotes one of the purposes underlying the guarantee of free expression. … Only if the claimant can establish a link between the use of the forum in question for public expression and at least one of these purposes is the claimant entitled to the protection of s. 2(b) of the Charter. [Emphasis added.]

[102] In order to show the effect of the expressive activity infringes s. 2(b), the claimant must establish that the time, place and manner of the expressive activity promotes at least one of the core values underlying the s. 2(b) right. This requirement is met by showing a link between the expressive activity and truth-finding, democratic discourse or self-fulfillment.

[103]
Thereafter, in Montreal (City) v. 2952-1366 Quebec Inc., 2005 SCC 62, [2005] 3 S.C.
R.
141, [“Montreal (City)”], the court again commented on the Irwin Toy test. The circumstances in Montreal (City) involved a location claim for s. 2(b) protection. In that case, the petitioner club successfully challenged a municipal bylaw that prohibited noise produced by sound equipment which could be heard in the street outside the club and that was designed to

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (24 of 48) [3/29/2007 3:10:51 PM]

attract business. The court reiterated a broad protective scope for s. 2(b). It held that constitutional protection extended to expressive activity on a government-owned public sidewalk that had historically been used for expressive purposes. It concluded, however, that the bylaw restriction on the making of noise on a public sidewalk was justified under s. 1.

[104] In joint reasons, McLachlin C.J. and Deschamps J., writing for the majority, refined the s. 2(b) analysis at ¶56:

First, did the noise have expressive content, thereby bringing it within s. 2(b) protection? Second, if so, does the method or location of this expression remove that protection? Third, if the expression is protected by s. 2(b), does the By-law infringe that protection, either in purpose or effect?

[105] In focussing on the place where the expression occurred, the court framed the test at ¶72-77:

¶72 Expressive activity should be excluded from the protective scope of s. 2(b) only if its method or location clearly undermines the values that underlie the guarantee. Violent expression, which falls outside the scope of s. 2(b) by reason of its method, provides a useful analogy. Violent expression may be a means of political expression and may serve to enhance the self-fulfillment of the perpetrator. However, it is not protected by s. 2(b) because violent means and methods undermine the values that s. 2(b) seeks to protect. Violence prevents the self-fulfillment of the victim rather than enhancing it. And violence stands in the way of finding the truth rather than furthering it. Similarly, in determining what public spaces fall outside a s. 2(b) protection, we must ask whether free expression in a given place undermines the values underlying s. 2(b).

¶73 We therefore propose the following test for the application of s. 2(b) to public

property; it adopts a principled basis for method or location-based exclusion from s. 2

(b) and combines elements of the tests of Lamer C.J. and McLachlin J. in Committee for the Commonwealth of Canada. The onus of satisfying this test rests on the claimant.

¶74 The basic question with respect to expression on government-owned property is whether the place is a public place where one would expect constitutional protection for free expression on the basis that expression in that place does not conflict with the purposes which s. 2(b) is intended to serve, namely, (1) democratic discourse, (2) truth finding and (3) self-fulfillment. To answer this question, the following factors should be considered:

(a) the historical or actual function of the place; and

(b) whether other aspects of the place suggest that expression within it would undermine the values underlying free expression.

¶75 The historical function of a place for public discourse is an indicator that

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (25 of 48) [3/29/2007 3:10:51 PM]

expression in that place is consistent with the purpose of s. 2(b). In places where free expression has traditionally occurred, it is unlikely that protecting expression undermines the values underlying the freedom. As a result, where historical use for free expression is made out, the location of the expression as it relates to public property will be protected.

¶76 Actual function is also important. Is the space in fact essentially private, despite being government-owned, or is it public? Is the function of the space -- the activity going on there -- compatible with open public expression? Or is the activity one that requires privacy and limited access? Would an open right to intrude and present one’s message by word or action be consistent with what is done in the space? Or would it hamper the activity? Many government functions, from cabinet meetings to minor clerical functions, require privacy. To extend a right of free expression to such venues might well undermine democracy and efficient governance.

¶77 Historical and actual functions serve as markers for places where free expression would have the effect of undermining the values underlying the freedom of expression. The ultimate question, however, will always be whether free expression in the place at issue would undermine the values the guarantee is designed to promote. Most cases will be resolved on the basis of historical or actual function. However, we cannot discount the possibility that other factors may be relevant. Changes in society and technology may affect the spaces where expression should be protected having regard to the values that underlie the guarantee. The proposed test reflects this, by permitting factors other than historical or actual function to be considered where relevant.

[106] The court clarified that in order to meet the requirement that the expressive activity promote one or more of the underlying core values of s. 2(b), the court should consider the historical and actual function of the place in which the expressive activity occurs, and any other factors that might suggest whether expression within it would undermine the values underlying free expression.

[107] Applying this approach, the court concluded at ¶79 that there is a “preliminary screening process” in the application of s. 2(b):

… Our jurisprudence requires broad protection at the s. 2(b) stage, on the understanding that governments can limit that protection if they can justify the limits under s. 1 of the Canadian Charter. The proposed test reflects this. However, it also reflects the reality that some places must remain outside the protected sphere of s. 2(b). People must know where they can and cannot express themselves and governments should not be required to justify every exclusion or regulation of expression under s. 1. As six of seven judges of the Court agreed in Committee for the Commonwealth of Canada, the test must provide a preliminary screening process. Otherwise, uncertainty will prevail and governments will be continually forced to justify restrictions which, viewed from the perspective of history and

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (26 of 48) [3/29/2007 3:10:51 PM]

common sense, are entirely appropriate. Restricted access to many government-owned venues is part of our history and our constitutional tradition. The Canadian Charter was not intended to turn this state of affairs on its head. [Emphasis added.]

[108] In summary, Montreal (City) refines the Irwin Toy analysis by providing a preliminary screening process for s. 2(b) protection, if the location or method of expression undermines any of the three core values underlying the s. 2(b) guarantee.

[109] In R. v. Keegstra, the majority at ¶31, and the minority at ¶228, provided the following succinct summary of the second stage of the Irwin Toy analysis:

¶31 The second stage in the analysis outlined in Irwin Toy is to determine whether the purpose of the impugned government action is to restrict freedom of expression. The guarantee of freedom of expression will necessarily be infringed by government action having such a purpose. If, however, it is the effect of the action, rather than the purpose, that restricts an activity, s. 2(b) is not brought into play unless it can be demonstrated by the party alleging an infringement that the activity supports rather than undermines the principles and values upon which freedom of expression is based.

¶228 Where the government’s aim was not to limit freedom of expression, and this is but an incident of its attempt to accomplish another goal, then the person complaining of the infringement must show that its effect was to infringe his constitutional freedom. Here the composite rationale for freedom of expression suggested by Emerson and others has been given a limited role. To make out a violation of s. 2(b) where the government infringement of expression is incidental to its pursuit of another goal, a complainant must show that one of the suggested values underlying the guarantee is infringed, these being three.

[110] Thus, where the effect of the restriction controls the content of expression (e.g. Keegstra and Zundel), or the form of expression that is tied to content (e.g. Pepsi and Kmart) the restriction will infringe s. 2(b). If the effect of the restriction is merely to control the physical consequences of the expression (e.g. 605715 (Saskatchewan Ltd.)(c.o.b. Showgirls) v. Saskatchewan (Liquor and Gaming Commission), 2000 SKCA 97, leave to appeal to S.S.C. ref’d., [2000] S.C.C.A. No. 555 (QL), then the restriction will not be an infringement of s. 2(b).

[111] The AGBC submits that the applicable test for the s. 2(b) analysis is not Irwin Toy, but rather a line of cases originating with the decision in Re Cromer (1986), 29 D.L.R. (4th) 641 (B.C. C.A.). In that case, Lambert J.A., for the court, recognized that protection of the third party rights was a necessary consideration in assessing the scope and boundaries of s. 2(b).

[112] The AGBC also argues for a more limited scope of s. 2(b) than that set out in Irwin Toy. It submits that s. 2(b) does not apply to all forms of conduct or activity that are expressive activity

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (27 of 48) [3/29/2007 3:10:51 PM]

and in particular should not apply to conduct or activity that infringes the rights and interests of others. It contends that work stoppages that harm innocent third parties go beyond the scope of protection due to their elements of violence and intimidation. It also submits that such actions should fall beyond the scope of s. 2(b) protection under the wrongful action-based approach. In that regard, it relies on Pepsi where the court stated at ¶106 “It is safe to assert that a wrongful action-based approach will catch most problematic picketing – i.e. picketing whose value is clearly outweighed by the harm done to the neutral third party.”

[113] The AGBC relies on Montreal (City) in support of its position. It advances the argument that Montreal (City) has added an additional analytical step that can be considered in determining the scope of s. 2(b) protection, by allowing claims of s. 2(b) infringement based on harm to third parties to be considered at the s. 2 definitional stage rather than the s. 1 justification stage. It places considerable weight on the definitions of “method and location” in Montreal (City), arguing that “method” is more expansive in meaning than the wrongful action tortuous or criminal exceptions, and that in this case “method” should be interpreted to exclude expression that harms innocent third parties. The AGBC asserts that Montreal (City) at ¶79 provides the necessary authority for employing some portion of the traditional balancing from s. 1 at the definitional stage through the “preliminary screening process”.

[114] However, though neither explicitly overruled nor rejected by the Supreme Court of Canada, the correctness of Re Cromer was questioned by L’Heureux-Dubé J. in Committee of Canada for the Commonwealth at ¶93 and expressly rejected by the British Columbia Court of Appeal in Police Services Union, Port Moody District 43 v. Port Moody Police Board (1991), 78 D.L.R. (4th) 79 and BCPSEA v. BCTF. Moreover, subsequent Supreme Court of Canada decisions have all adhered to the Irwin Toy framework including Reference re ss. 193 and 195.1 (1) (c) of the Criminal Code (Man.), [1990] 1 S.CR. 1123 [“the Prostitution Reference”]; Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, [“Rocket”]; Keegstra; Committee of Canada for the Commonwealth; Zundel; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 [“Ross”]; R. v. Sharpe, [2001] 1 S.C.R. 45; and Montreal (City).

[115] I am not persuaded that Montreal (City) has altered the Irwin Toy framework in any fundamental sense, by incorporating the traditional balancing of harm at the s. 1 justification stage, into the s.2 definitional state. In my view Montreal (City) has merely streamlined the approach to be taken in situations where the impugned law threatens to infringe freedom of expression involving access to public property for expressive purposes. Montreal (City) focuses on an examination of location, in particular of government-owned property and at ¶74 proposes a location-based test for the application of s. 2(b) to public property.

[116] While the established categories of method (violence) and location (certain government-based property) for exclusion of expressive activity may not be exhaustive, as suggested in the dicta of L’Heureux-Dubé in Sharpe (¶150), I am satisfied that the current jurisprudence has not extended these categories to include harm caused to third parties by the expressive activity.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (28 of 48) [3/29/2007 3:10:51 PM]

[117] Based on the existing jurisprudence, I am satisfied that Irwin Toy provides the correct approach in analyzing the s. 2(b) issue.

(b) Sections 2(c) – Freedom of peaceful assembly

[118] There is little jurisprudence on the fundamental right to peaceful assembly.

[119] Pre-Charter freedom of assembly does not appear to have been accorded the same respect as freedom of expression under federalism doctrines or an implied bill of rights. See Dupond v. Montreal, [1978] 2 S.C.R. 770. However, post-Charter, the right has gained stature. This fact was recognized in Committee for Commonwealth of Canada, where Madam Justice L’Heureux-Dubé at ¶30 cited with approval the passage of Brandeis J., in which he expressly linked the guarantees of fundamental rights and freedoms to free speech and assembly, noting that a hallmark of a democratic society has always included the right of citizens to assembly for the purpose of protesting state action. The right to freedom of assembly also protects individuals assembling collectively for public demonstrations, marches and protest rallies.

[120] The Irwin Toy framework has been employed in assessing whether an impugned law or government act infringes the s. 2(c) right. In Corporation of Canadian Civil Liberties Association. v. Canada (Attorney General) (1992), 8 O.R. (3d) 289 (Ont. Ct. Gen. Div.), overturned on appeal but not on this issue, the court applied the Irwin Toy analysis to ss. 2(a), 2

(b) and 2(c) constitutional challenges of certain provisions of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23.

[121] The scope of s. 2(c) has also been interpreted as subject to legislative restrictions on time and place of associational activity. See Re United Association of Journeyman and Apprentices of the Plumbing Industry of the United States and Canada, Local 740 and Pitts Atlantic Construction Ltd. (1983), 7 D.L.R. (4th) 699 (Nfld. C.A.), where legislative restrictions on time and place of secondary picketing were found not to be an infringement of s. 2

(c) but merely regulation of the time and place at which picketing could occur.

(c) Section 2(d) - the freedom of association

[122] Intertwined with the fundamental right to freedom of expression and freedom of assembly is the right to freedom of association.

[123] The court in the Alberta Reference emphasized the importance of freedom of association for the exercise of the freedom of expression. McIntyre J. also reiterated that freedoms belonging to the collective must be freedoms that could be exercised individually. In that regard he stated at ¶114:

In considering the constitutional position of freedom of association, it must be recognized that while it advances many group interests and, of course, cannot be

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (29 of 48) [3/29/2007 3:10:51 PM]

exercised alone, it is nonetheless a freedom belonging to the individual and not to the group formed through its exercise. … The group or organization is simply a device adopted by individuals to achieve a fuller realization of individual rights and aspirations. People, by merely combining together, cannot create an entity which has greater constitutional rights and freedoms than they, as individuals possess. Freedom of association cannot therefore vest independent rights in the group.

[124] He went on to reason at ¶174 that the right to strike was not a fundamental freedom that attracted constitutional protection under s. 2(d) because it was not a right given to an individual:

It follows from this discussion that I interpret freedom of association in s. 2(d) of the Charter to mean that Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by the individual. Furthermore, freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone. But since the fact of association will not by itself confer additional rights on individuals, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.

When this definition of freedom of association is applied, it is clear that it does not guarantee the right to strike …

[125] The elements of freedom of association discussed in the Alberta Reference were summarized by Sopinka J. in Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367 [“PIPSC”] at 401-2, cited with approval in Dunmore at ¶14:

Upon considering the various judgments in the Alberta Reference, I have come to the view that four separate propositions concerning the coverage of the s. 2(d) guarantee of freedom of association emerge from the case: first, that s. 2(d) protects the freedom to establish, belong to and maintain an association; second, that s. 2(d) does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association; third, that s. 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and fourth, that s. 2(d) protects the exercise in association of the lawful rights of individuals.

[126] Dunmore involved an appeal by a group of agricultural workers from a judgment upholding Ontario's Labour Relations Act, S.O. 1995, c. 1 (“LRA”). In 1994, the Ontario legislature enacted the Agricultural Labour Relations Act (“ALRA”), S.O.1994, c. 6, which extended trade union and collective bargaining rights to agricultural workers. In 1995, the legislature repealed the ALRA thereby excluding agricultural workers from the rights provided by the LRA. The appellant agricultural workers brought an application challenging the repeal of the ALRA and their exclusion from the LRA, arguing that this infringed their freedom of association

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (30 of 48) [3/29/2007 3:10:51 PM]

provided by s. 2(d) of the Charter.

[127] The court found that the workers had met the evidentiary burden of showing they were substantially incapable of exercising their fundamental freedom to organize without the LRAs protective regime and therefore the legislation infringed their s. 2(d) right. It also found that the wholesale exclusion of agricultural workers did not minimally impair the worker freedom of association but was overbroad in denying the right of association to every sector of agriculture without distinction. It concluded that the total exclusion of agricultural workers from Ontario's labour relations regime was not justifiable under s. 1 of the Charter.

[128] Dunmore expanded the scope of s. 2(d) to encompass conduct the legislature had “targeted” because of its concerted or associational nature. However, it also acknowledged some limitations on the right at ¶83:

The purpose of s. 2(d) is to make individuals more powerful by ensuring they can associate with others to pursue objectives which they could not accomplish as effectively on their own. However, the right to freedom of association does not have as its purpose the near absolute levelling of the playing field that is achieved in labour legislation, particularly in the public sector.

[129] At ¶17, the court reiterated its earlier findings in the labour trilogy that strike activity does not fall within s. 2(d) protection:

[B]ecause trade unions develop needs and priorities that are distinct from those of their members individually, they cannot function if the law protects exclusively what might be "the lawful activities of individuals". Rather, the law must recognize that certain union activities -- making collective representations to an employer, adopting a majority political platform, federating with other unions -- may be central to freedom of association even though they are inconceivable on the individual level. This is not to say that all such activities are protected by s. 2(d), nor that all collectivities are worthy of constitutional protection; indeed, this Court has repeatedly excluded the right to strike and collectively bargain from the protected ambit of s. 2(d) (see Alberta Reference, supra, per Le Dain J., at p. 390 (excluding the right to strike and collectively bargain), per McIntyre J., at pp. 409-10 (excluding the right to strike); PIPSC, supra, per Dickson C.J., at pp. 373-74 (excluding the right to collectively bargain), per La Forest J., at p. 390 (concurring with Sopinka J.), per L'Heureux-Dubé J., at p. 392 (excluding both the right to strike and collectively bargain), per Sopinka J., at p. 404 (excluding both the right to strike and collectively bargain))…

[Emphasis added.]

[130] In Dunmore at ¶13 and 16, the court reframed the test for establishing a s. 2(d) breach in the language of Irwin Toy:

¶13 [I]n order to establish a violation of s. 2(d), the appellants must demonstrate,

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (31 of 48) [3/29/2007 3:10:51 PM]

first, that such activities fall within the range of activities protected by s. 2(d) of the Charter, and second, that the impugned legislation has, either in purpose or effect, interfered with these activities (see, in the s. 2(a) context, R. v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295, at pp. 331-36, and in the s. 2(b) context, Irwin Toy Ltd. v. Quebec (Attorney General), [1989] at p. 971). …

¶16 As these dicta illustrate, the purpose of s. 2(d) commands a single inquiry: has the state precluded activity because of its associational nature, thereby discouraging the collective pursuit of common goals? In my view, while the four-part test for freedom of association sheds light on this concept, it does not capture the full range of activities protected by s. 2(d). In particular, there will be occasions where a given activity does not fall within the third and fourth rules set forth by Sopinka J. in PIPSCV, supra, but where the state has nevertheless prohibited that activity solely because of its associational nature. These occasions will involve activities which (1) are not protected under any other constitutional freedom, and (2) cannot, for one reason or another, be understood as the lawful activities of individuals. As discussed by Dickson C.J. in the Alberta Reference, supra, such activities may be collective in nature, in that they cannot be performed by individuals acting alone. The prohibition of such activities must surely, in some cases, be a violation of s. 2(d) (at p. 367) …

[131]
In summary, I am satisfied the Irwin Toy framework is the correct approach in addressing each of the alleged infringements of ss. 2(b), 2(c) and 2(d).
I.
APPLICATION OF IRWIN TOY TO THE FACTS

(a) Section 2(b) – Freedom of expression

[132] Both original LRB decisions found the petitioners’ mid-contract work stoppages to attend political protest rallies were distinguishable from work stoppages for collective bargaining purposes, and were therefore expressive activity which presumptively received s. 2(b) protection. The Reconsideration Decision accepted this analysis and focused instead on the application of s. 1 and whether the definition of strike was overbroad.

[133] The hallmark of strike activity is the concerted withdrawal of services. While historically used as an economic tool to redress conditions of employment, attempts have been made in more recent times to adapt that form of persuasion into the political arena. In OLRB Domglas at ¶11, the OLRB categorized a concerted “unauthorized absence from work” as strike activity, which was upheld on judicial review. Post-Charter, however, the Court must examine the expanded definition of strike in the context of the Irwin Toy analysis.

[134] To that end, the following questions must be answered:

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (32 of 48) [3/29/2007 3:10:51 PM]

  1. Were the petitioners’ mid-contract work stoppages to attend political protest rallies, expressive activity that is presumptively protected by s. 2(b)?

  2. If yes, were their actions excluded from s. 2(b) because of the method or location of the expressive activity?

  3. If the expressive activity falls within the scope of s. 2(b), does the definition of strike infringe on the protected status of the activity in purpose or effect?

1. Are political protests involving a withdrawal of labour during the term of a collective agreement expressive activity?

[135] The HEU and BCTF work stoppages to attend protest rallies were organized for the express purpose of registering their opposition to the legislation imposing collective agreements on their members. Their plans involved a concerted withdrawal of services to effect political change.

[136] In determining if work stoppages for political rather than collective bargaining purposes is expressive activity, the Court must start with the broad approach to defining expressive activity established by Libman v. Quebec, [1997] 3 S.C.R. 569 [“Libman”] at ¶31:

The Court favours a very broad interpretation of freedom of expression in order to extend the guarantee under the Canadian Charter to as many expressive activities as possible. Unless the expression is communicated in a manner that excludes the protection, such as violence, the Court recognizes that any activity or communication that conveys or attempts to convey meaning is covered by the guarantee of s. 2(b) of the Canadian Charter (Irwin Toy, supra, at p. 970; Zundel, supra, at p. 753).

[137] Applying the Libman test, I am satisfied that the petitioners’ use of work stoppages to protest legislation imposing collective agreements on their members was activity that conveys meaning and is therefore expressive activity. The BCTF rallies did not involve violence, which is the only current method of expressive activity that is excluded from presumptive s. 2(b) protection. Therefore, at the definitional stage of the Irwin Toy analysis the BCTF’s political protest rallies presumptively receive s. 2(b) Charter protection.

[138] I am supported in that finding by the comments of the OLRB in Re General Motors at ¶136:

The fact that the strike was arguably unlawful, does not change the character of the communications designed to induce that unlawful response, nor does it remove the strike itself from the ambit of “expressions”– just as hate speech remains “expression” even though it may be unlawful under the Criminal Code. I might further note that a political protest strike of the kind that occurred in this case also involves a kind of “expression” that is linked to Justice Dickson’s second justification for supporting a broad reading of “freedom of expression”: a political protest strike is a form of participation in social and political decision making – or at the very least an

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (33 of 48) [3/29/2007 3:10:51 PM]

effort to influence social and political decision-making through expressive (albeit disruptive) behaviour. In this regard a political protest strike is a little different from an “ordinary strike” (i.e. one about terms and conditions of employment that might still be considered a form of expression, but would not normally involve any social or political content.)

[139] The HEU, on the other hand, concedes that some of its picketing activities were captured by the violence exclusion and therefore do not qualify as protected political expression. This was the case in Allsco, where the court excluded s. 2(b) protection for expression that was coercive, intimidating, threatening or intended to cause undue influence.

[140] The HEU maintains, however, that for the purposes of the s. 2(b) analysis its non-violent political protest rallies should be severed from its violent and intimidating picketing activities. It submits the Reconsideration Panel’s failure to make that distinction because of some degree of harm the HEU’s actions may have caused, was an error in law, arguing that the test is not whether the expressive activity causes harm but whether it falls under the exception for “violence”. Stated otherwise, it submits it was an error in law to find that HEU’s picketing actions were such an integral part of its work stoppage to attend a protest rally, so as to preclude the latter from s. 2(b) protection.

[141] In support of its position, the HEU relies on Keegstra, Big M Drug Mart and the Prostitution Reference. In Keegstra, a majority of the court held that communication which wilfully promotes hatred against an identifiable group was protected by s. 2(b). In Big M Drug Mart, the court held the scope of Charter protection was not limited to activity that is currently regulated or prohibited. Similarly, in the Prostitution Reference, the criminalization of communications for the purpose of prostitution was found not to contravene s. 2(b). The HEU also relies on a wrongful-action approach outlined in Pepsi to support its position that a blended consideration of the two forms of activities ought not to have been considered instead of isolating those actions that might have caused potential harm to third parties.

[142] The circumstances in each the above examples, however, did not involve actual acts of violence or intimidation, but rather the communication of expression that encouraged acts of violence or intimidation. In this case, I am satisfied that distinguishing between violent and nonviolent actions that are part of a single event, as was the HEU’s day of protest, would be an artificial exercise resulting in a weakening of the comprehensive first stage of the Irwin Toy analysis. If activities can be distinguished in this manner in a labour relations context, then arguably they could be so distinguished in other contexts.

[143]
In my view, it cannot be a legitimate exercise to extend the scope of a s. 2(b) analysis by distinguishing the preliminary or subsequent activities leading up to or following acts of violence, from the acts of violence themselves, thereby sheltering the former within the protective shade of
s.
2(b). The entirety of the HEU’s day of protest must be considered in the scope of the s. 2(b) analysis. I concur with the finding of the Reconsideration Panel that the HEU’s acts of violence and intimidation cannot be separated from its withdrawal of services. In my view, the whole of

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (34 of 48) [3/29/2007 3:10:51 PM]

the HEU’s conduct on January 28, 2003, must therefore be excluded from s. 2(b) protection.

[144] In summary, I am satisfied the BCTF actions in conducting work stoppages to attend political protest rallies constituted expressive activity under the first stage of the Irwin Toy analysis but that the HEU’s actions, which included acts of violence and intimidation as part of a single event that included attendance at a political protest rally, cannot be distinguished so as to qualify as expressive activity that presumptively attracts s. 2(b) protection.

2. Is BCTFs withdrawal of services for political purposes protected under

s. 2(b) of the Charter?

[145] Having found the BCTF attendance at political protest rallies to be expressive activity and therefore presumptively protected by s. 2(b), I must next consider whether the definition actually infringes that protection, either in purpose or effect. If the purpose of the legislation is found to restrict freedom of expression then it will infringe s. 2(b). If the purpose is not to restrict expression but that is its effect, the legislation will infringe s. 2(b) only if the BCTF can establish that the expressive activity, (the withdrawal of services as a form of political expression) can be linked to at least one of the core values underlying the right to freedom of expression.

(i) The purpose of the definition of strike

[146] The facial purpose of the definition of strike is found in the legislative provision itself and in the stated purpose of the 1984 amendment.

[147] Section 1(1) of the Code defines “strike” as including “a cessation or work, … by employees in combination or in concert … that is designed to or does restrict or limit production or services …”. The definition catches all forms of mid-contract work stoppages regardless of their purpose. It does not expressly prohibit the ability to engage in or the content of political expression.

[148] Government’s stated purpose in introducing the expanded definition in 1984 was to address the disruptive consequences of mid-contract work stoppages. Other jurisdictions introduced similar definitions to address similar circumstances.

[149] In these contexts, I am satisfied the purpose of the definition of strike was to prohibit all mid-contract work stoppages unrelated to collective bargaining to ensure that parties to collective agreements would conduct themselves in accordance with a prescribed set of rights and duties under the Code understood by both employers and employees.

(ii) The effect of the definition of strike

[150] As previously noted the effect of the definition of strike was to capture political protest work stoppages during the term of a collective agreement.

[151] The BCTF submits that its voluntary and peaceful attendance at political protest rallies is

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (35 of 48) [3/29/2007 3:10:51 PM]

properly characterized as a form of political expression rather than strike activity, and is therefore expressive activity that is guaranteed s. 2(b) protection. The BCTF further distinguishes its actions from strike activity by pointing to the lack of picketing activity, lack of mandatory attendance requirements, and lack of intent to disrupt its employer’s economic activity for the purpose of securing better terms or conditions of employment. Instead, it submits, the objective of its work stoppage was to express a broad political agenda that was directed at effecting political change by the government.

[152] In support of its position, the BCTF relies on Kmart, where the definition of picketing captured peaceful leafleting and as a result the court read down the definition to exclude leafleting. In this case, the BCTF argues by analogy that the definition of strike must be read down to exclude voluntary and peaceful rallies that include work stoppages for a political purpose, and thereby receive s. 2(b) protection. In short, the BCTF submits that it is an analytical error to characterize its activity as a political “strike” and submits that so long as its expressive activity does not fall within the method exclusion of violence its actions are constitutionally protected.

[153] The HEU adds to the BCTF’s submission by stating that mid-contract political protest rallies are to be distinguished from collective bargaining strikes because the former are not directed at the employer. It argues that the distinction is underscored by the fact that when its members have a dispute with government they do not have available the collective agreement dispute resolution options of grievance and arbitration. It submits if examined in its historical context, the pre-1984 definition of strike which did not exclude political protest work stoppages, illustrates that such a distinction can be made by experienced members of the LRB with the requisite expertise.

[154] The issue raised by these submissions may be summarized as follows: Can a work stoppage that has no protected status when used in the context of collective bargaining, become cloaked with s. 2(b) protection if used in the context of effecting political change, when historically, constitutionally, and philosophically, work stoppages, whatever their purpose, have never risen to the level of a fundamental right or freedom in Canada? In my view it cannot.

[155] Although the petitioners characterize their expressive activities as attendance at political rallies, at the core these activities were concerted work stoppages. Through the form of a work stoppage, they have chosen to deliver their political message. Work stoppages are the hallmark of strike activity. It is not by accident that this effective economic weapon has been imported into the context of a political dispute with government because it brings pressure to bear on those affected by the work stoppages including unrelated third parties and the public-at-large.

[156] The petitioners submit the definition of strike creates an absolute prohibition on the petitioners’ ability to exercise their right to political expression. However, at most, the definition inhibits the petitioners’ ability to exercise their right to political expression in the form of mid-contract work stoppages. Their ability to engage in political expression and to attend political protest rallies to deliver their message is not affected by the expanded definition. All that is

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (36 of 48) [3/29/2007 3:10:51 PM]

circumscribed is the time (not during a collective agreement) and the manner or form (a work stoppage) of their expression. It is the physical consequences (the mid-contract work stoppage) of their political expression (protest rallies against government policy) that is restricted by the definition, not their ability to engage in or the content of their political expression.

[157] The effect of the definition on both petitioners is that their members remain free to attend political protest rallies provided they are not required by the terms of their collective agreement to be at work when the protest rally is scheduled. The petitioners argue that such a limitation reduces the effectiveness of their political message, but the s. 2(b) right to freedom of expression has never guaranteed the right to the most effective form of expression.

[158] The second stage of the Irwin Toy analysis requires the claimant seeking s. 2(b) protection to show that one of the core values underlying the s. 2(b) right is implicated in protecting his or her expressive activity. In the context of this case, the BCTF must establish that the expanded definition’s restriction on the time and manner (form) for attendances away from work undermines one or more of the core values underlying the s. 2(b) right. Framed in the language of Montreal (City), the BCTF must show that the definition’s restriction on the time and manner of their political expression conflicts with truth-finding, democratic discourse or self-fulfillment. In undertaking that inquiry, the Court must adopt an historical and purposive examination of the use of work stoppages as a method of expression, and determine whether in the labour relations context the restriction undermines any of the core values underlying free expression.

[159] Historically work stoppages have been limited to the labour relations context of collective bargaining disputes. They have seldom been used as a form of political expression to effect changes in government policy, primarily because political expression through democratic discourse does not require the use of work stoppages. Political messages can be effectively communicated though a variety of forms of expression that do not involve breaches of employment contracts, be they individual or collective.

[160] The purpose of the s. 2(b) right to political expression has never been associated with a right to breach employment contracts. An implied term of every employment contract is that employees be in attendance at their workplace during their contracted hours of work. Non-unionized employees do not have a unilateral right to withdraw their services for the purpose of political expression and could receive swift sanctions if they chose to engage in political work stoppages when they were contracted to work for their employers. The effect of the expanded definition of strike for unionized employees is compatible with the rights of non-unionized employees.

[161] During the term of their collective agreement, unionized employees are subject to the same implied terms of their employment contract, the collective agreement, as non-unionized employees, except where authorized by the Code. Beyond that limitation, unionized employees remain free to attend political protest rallies outside of work hours and communicate their political expression in any manner or form that does not breach their employment contract.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (37 of 48) [3/29/2007 3:10:51 PM]

[162] This reasoning was applied by Vice-Chair Saunders at ¶48-49 of his decision in addressing the issue of whether the BCTF’s actions constituted an infringement of s. 2(c) (see ¶12 above). In my view, it is equally applicable to the BCTF’s submissions on the s. 2(b) issue.

[163] In summary, I am not persuaded the BCTF has shown a link between or the implication of any of the core values underlying the s. 2(b) right and the use of mid-contract work stoppages.

I am satisfied the absolute prohibition on mid-contract work stoppages is a mere regulation of the physical consequences of that form of expressive activity and does not adversely impact upon the content or ability to engage in political expression. This determination is consistent with the inherent limitations to the scope of s. 2(b) established by Committee for the Commonwealth of Canada and the “preliminary screening process” test adopted in Montreal (City).

[164] Accordingly, I find the definition of strike which captures political protest rallies during working hours of the term of a collective agreement does not infringe the s. 2(b) guarantee under the Charter.

(b) Section 2(c) – Freedom of Peaceful Assembly

[165] The original LRB decision on the BCTF actions concluded that the definition of strike did not infringe s. 2(c) (or 2(d)) of the Charter. Applying the Irwin Toy framework it held that neither the purpose nor the effect of the legislation prohibited peaceful assembly away from the workplace outside of working hours.

[166] The Reconsideration Panel did not specifically address this issue but agreed with Vice-Chair Saunders’ conclusions at ¶48-49 of his decision where he found the definition did not infringe s. 2 (c) of the Charter. For the same reasons I too have concluded there is no s. 2(c) infringement.

[167] The BCTF submits that as a political protest rally necessarily involves the assembly of individuals, a prohibition which hinders the ability of a collective to assemble for the purpose of expressing a political message violates s. 2(c) of the Charter. However, for the reasons already stated, I am not satisfied that the purpose or effect of the legislation prohibits the assembly of individuals but rather that it merely restricts the timing and form of that assembly. Nor am persuaded that the right to freedom of assembly confers a constitutional right for employees to withdraw their labour, at any time or in any manner, for the purpose of assembling in order to register their political protest.

[168] Accordingly, I find the definition of strike does not infringe s. 2(c) of the Charter.
(c) Section 2(d) – Freedom of association
[169] I am also not persuaded that the definition of strike engages the s. 2(d) right to

association as raised in Dunmore. Instead, I am of the view that in the circumstances of this

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (38 of 48) [3/29/2007 3:10:51 PM]

case, the restriction merely engages the timing and form of the associational right to come together for a political purpose but not the ability of individuals to collectively gather for political association.

[170] The BCTF argues that the definition of strike restricts the right of unionized employees to associate during working hours for the purpose of political protest and thereby infringes on the fundamental right to freedom of association. It is clear, however, from the 1987 labour trilogy, that freedom of association was not infringed by legislation denying the right to strike to public sector employees (the Alberta Reference), by legislation imposing wage caps on future pay increases for public sector employees (PSAC v. Canada), or by legislation ordering striking dairy workers back to work (RWDSU v. Saskatchewan). In each of those cases, the court held that the right to freedom of association did not constitutionally guarantee the particular association the right to engage in its particular objectives and activities.

[171] In the Alberta Reference, McIntyre J. rejected the proposition that greater protection should be given to activities merely because they were done collectively. At ¶174 he stated:

It follows from this discussion that I interpret freedom of association in s. 2(d) of the Charter to mean that Charter protection will attach to the exercise in association of such rights as have Charter protection when exercised by the individual. Furthermore, the freedom of association means the freedom to associate for the purposes of activities which are lawful when performed alone. But, since the fact of association will not by itself confer additional rights on individuals, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual.

When this definition of freedom of association is applied, it is clear that it does not

guarantee the right to strike …

[172] I am satisfied that the Alberta Reference provides an absolute bar to the BCTF’s claim of a s. 2(d) breach. Freedom of association is an individual not a collective right. It is possessed by individuals and not associations, although individual rights do not lose their constitutional protection when they are exercised in common with others. While the BCTF attempts to characterize the teachers’ attendance at the rallies as individual actions, the work stoppages to attend the rallies were organized well in advance of the rallies and those teachers who participated in the rallies were paid $50 out of the BCTF’s “Collective Bargaining Defence Fund”.

(d) Summary of s. 2 definitional stage

[173] The BCTF cannot recast its withdrawal of services for the purpose of attending political protest rallies as an exercise of its ss. 2(b), 2(c) and 2(d) rights so as to create a constitutional right for mid-contract work stoppages that are conducted for a political purpose. There is no individual right to withdraw services for a political purpose during the term of an employment contract. Subject to the statutory rights created by the Code, an organized group of individuals

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (39 of 48) [3/29/2007 3:10:51 PM]

cannot acquire constitutional rights beyond those guaranteed to an individual.

[174] Political protest rallies that involve mid-contract work stoppages are not authorized by the Code or at common law. The disruption of public services to advance political expression cannot be said to promote any of the core values underlying s. 2(b). Truth finding, democratic discourse and individual self-fulfillment are values that may be pursued by union members at a time and form that does not contravene their collective agreement.

[175] The courts’ role in interpreting the policy choices made by legislatures in the area of labour relations has traditionally been one of deference. While such deference remains subject to the constitutional protection of fundamental rights and freedoms, restrictions on time and form in this case that were implemented to meet a perceived vacuum in the Code during a time of considerable labour unrest, do not in my view reach the threshold required for constitutional protection. This conclusion is affirmed when the petitioners’ actions are examined in their historical and actual context, where the collective withdrawal of services has been directed at achieving economic benefits for unionized employees and not for broader political purposes.

[176] In summary, I find there is no constitutional right for individuals to act in concert for a political purpose by a withdrawal of employment services, whether that activity is framed as a political strike, or as an exercise of political expression, assembly or association.

[177]
In the event I am found to be in error in that determination, I propose next to address the issue of whether such an infringement is justified in a free and democratic society. That analysis engages an application of the test laid out in R. v. Oakes, [1986] 1 S.C.R. 103 [“Oakes”].
J.
THE SECTION 1 ANALYSIS

[178] Section 1 of the Charter provides:

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.

[179] At this stage of the analysis, the Court is tasked with weighing the competing interests that are engaged by the expressive activity, including the harm to third parties caused by the expressive activity. The burden of justifying the infringement of constitutional rights is on those who have infringed the right.

[180] Oakes sets out a two-part test: the first step requires the existence of a pressing and substantial objective to warrant overriding a Charter infringement; the second step requires proportional means to achieving the pressing and substantial objective. Proportionality requires

(a) means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective. See Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at ¶67.

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (40 of 48) [3/29/2007 3:10:51 PM]

[181] Understanding the context in which an infringement has arisen is essential to the analysis. This was noted in Thomson Newspapers Co. v. Canada, [1998] 1 S.C.R. 877 [“Thomson Newspapers”] at ¶87:

The analysis under s. 1 of the Charter must be undertaken with a close attention to context. This is inevitable as the test devised in R. v. Oakes … requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses. Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting. In essence, context is the indispensable handmaiden to the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right. [Emphasis added.]

[182] In this case, the context in which the expanded definition was implemented involved the government’s objective to halt widespread and escalating work stoppages caused by legislative initiatives it had implemented in order to address a significant downturn in the economy in 1983. Similar legislation has been employed in at least six other jurisdictions.

[183] Under s. 1, there is a high degree of deference to the legislative branch of government when assessing labour relations legislation: see Irwin Toy at ¶79-81, Thomson Newspapers at ¶88-90, Ross v. New Brunswick School District, [1996] 1 S.C.R. 825 at ¶79-83); Advance Cutting at ¶128, Pepsi at ¶126, and Alberta Reference at ¶131. The delicacy required in crafting labour legislation in which varied and competing interests must be balanced was commented on by McIntyre J. In the Alberta Reference at ¶180:

Labour law, as we have seen, is fundamentally important as well as an extremely sensitive subject. It is based upon a political and economic compromise between organized labour – a very powerful socio-economic force – on the one hand, and the employers of labour – an equally powerful socio-economic force – on the other. The balance between the two forces is delicate and the public-at-large depends for its security and welfare upon the maintenance of that balance. … [T]he whole process is inherently dynamic and unstable. Care must be taken then in considering whether constitutional protection should be given to one aspect of this dynamic and evolving process while leaving the other subject to the social pressures of the day.

[184] The respondents submit an absolute prohibition on mid-contract work stoppages is essential in order to meet the Codes objectives of certainty, stability, preservation of industrial peace and ensuring the public interest is protected. They contend that the BCTF’s reliance on the wrongful-action model adopted in Pepsi is misguided. They state the picketing cases of Kmart, Pepsi and Allsco do not assist the BCTF because lawful picketing is an inherently different activity than work stoppages. The former, they note, provide unrelated third parties with a choice of whether or not to cross a picket line, while the latter creates a captive audience and

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (41 of 48) [3/29/2007 3:10:51 PM]

extracts an involuntary contribution from unrelated third parties who may not be interested in aiding the cause of those engaged in that form of political expression.

[185] In reply, the petitioners submit the expanded definition, if properly characterized, is overbroad, does not minimally impair the right to freedom of expression and is not proportionate. They point to the lack of any adjustment provisions in the Code to off-set the absolute prohibition on mid-contract work stoppages. They dispute the allegation that their actions caused significant harm to unrelated third parties or that they negatively impacted on the public interest, in the absence of any evidence to support the contention that occasional, short, mid-contract work stoppages as a form of political expression threaten the integrity of the labour relations system. They maintain that the wrongful-action model identified in Pepsi provides a remedy for individuals who choose to contravene the terms of their collective agreement. They submit alternatives could be developed to an absolute prohibition against political work stoppages that involve requirements for notice, the length of time, and maintenance of minimum services before they could be entitled to engage in such political expression.

[186] I turn now to an application of the Oakes factors to the circumstances of this case, noting that the original LRB decisions differed only on their conclusions regarding the factors of minimal impairment and proportionality.

(a) Is there a pressing and substantial objective?

[187] All would agree that governing labour relations and structuring labour stability continues to be a compelling and worthwhile government objective. Consideration of the objectives of the definition of strike must be done within the context of the Codes entire statutory framework.

Both original LRB decisions concluded that the expanded definition addressed a pressing and substantial legislative objective. The Reconsideration Panel unanimously agreed with that conclusion.

[188]
The Supreme Court of Canada has recognized the preservation of industrial peace as a pressing and substantial objective. In Lavigne v. OPSEU, [1991] 2 S.C.R. 211 at ¶138, Wilson
J.
stated:

Is the preservation of industrial peace so pressing and substantial as to warrant overriding a constitutional right? I think it axiomatic that the answer to this question is “yes”.

[189] Legislation in the area of labour relations is essentially a product of legislatures’ social and economic policy, an area in which the courts have appropriately expressed reluctance to interfere: Pepsi at ¶85-85; and Advance Cutting at ¶247:

Legislatures are entitled to a substantial, though not absolute, degree of latitude and deference, to settle social and economic policy issues ... Courts should be mindful to avoid second-guessing legislatures on controversial and complex political choices …

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (42 of 48) [3/29/2007 3:10:51 PM]

As discussed above, the jurisprudence acknowledges that legislative policy-making in the domain of labour relations is better left to the political process, as a general rule.

[190] A high degree of deference is owed to the legislative responsibility in identifying the preservation of industrial peace as a pressing and substantial objective. The statutory regulation of workplace conflict is at the very core of the Code. This includes the granting of a limited right to strike for the purpose of negotiating the terms and conditions of a collective agreement, along with imposing limits on that right so as to minimize the effects of workplace disputes on innocent and uninvolved third parties.

[191] I am satisfied that controlling or limiting the physical consequences of strike activity is a pressing and substantive legislative objective.

(b) Is there a rational connection to the legislative objective?

[192] The rational connection factor of the proportionality test was described in Oakes at ¶70:

First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective.

[193] Prohibiting collective work stoppages during a term of a collective agreement is rationally connected to the objective of preventing the physical consequences of a work stoppage during that period and therefore to workplace stability and economy. The prohibition on mid-contract work stoppages is central to the integrity of the Codes statutory framework and its comprehensive regime for collective bargaining. It follows, therefore, that there is a clear connection between the limitation of mid-contract work stoppages for the regulation of workplace relations and the objective of industrial peace during the term of a collective agreement.

(c) Does the infringement cause minimal impairment to the right?

[194]
The minimum impairment test requires there be no “significantly less intrusive and equally effective measure” that the Legislature could have chosen to achieve its objective: R.J.
R.
MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 [“R.J.R. MacDonald”] at ¶160:

As the second step in the proportionality analysis, the government must show that the measures at issue impair the right of free expression as little as reasonably possible in order to achieve the legislative objective. The impairment must be "minimal", that is, the law must be carefully tailored so that rights are impaired no more than necessary. The tailoring process seldom admits of perfection and the courts must accord some leeway to the legislator. If the law falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement … On

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (43 of 48) [3/29/2007 3:10:51 PM]

the other hand, if the government fails to explain why a significantly less intrusive and equally effective measure was not chosen, the law may fail.

[195] This test raises two questions to the inquiry of whether the definition impairs freedom of expression as little as possible: first, is the definition overbroad, catching more expressive conduct than can be justified in a free and democratic society, and second, whether the restriction on time and form of the expressive conduct is an excessive response to the problem. See Keegstra at ¶309.

[196] The BCTF submits that the complete prohibition on mid-contract work stoppages does not minimally impair its members’ s. 2(b) rights. It argues the respondents did not present any evidence of harm to third parties or why less drastic or alternative means of restricting the time and form of its political expression could not have been adopted.

[197]
In R. v. Bryan, 2007 SCC 12, Bastarache J. commented on the nature of evidence required to demonstrate that the limits imposed on freedom of expression are reasonable and justifiable in a free and democratic society. He recognised that in certain circumstances, when dealing with public policy, the evidentiary decision may be based on “approximations or extrapolations”. Although the issue in Bryan was whether the infringement on freedom of expression created by a legislative temporary ban on federal election results was justifiable under s. 1, the decision provides some guidance on the issue raised by the petitioners as to the evidence required to establish the justification of a s. 1 infringement. On that point, Bastarache
J.
stated at ¶28-29:

¶28 In Harper, I referred to the contextual factors as favouring a “deferential approach to Parliament”: see para. 88. However, in my view the concept of deference is in this context best understood as being about “the nature and sufficiency of the evidence required for the Attorney General to demonstrate that the limits imposed on freedom of expression are reasonable and justifiable in a free and democratic society”: Harper, at para. 75 (emphasis added). What is referred to in Harper and Thomson Newspapers as a “deferential approach” is best seen as an approach which accepts that traditional forms of evidence (or ideas about their sufficiency) may be unavailable in a given case and that to require such evidence in those circumstances would be inappropriate.

¶29 As Professor Choudhry aptly notes, at p. 524 of his paper:

Public policy is often based on approximations and extrapolations from the available evidence, inferences from comparative data, and, on occasion, even educated guesses. Absent a large-scale policy experiment, this is all the evidence that is likely to be available. Justice La Forest offered an observation in [McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at p. 304] which rings true: “[d]ecisions on such matters must inevitably be the product of a mix of conjecture, fragmentary knowledge, general experience and knowledge of the

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (44 of 48) [3/29/2007 3:10:51 PM]

needs, aspirations and resources of society”.

I agree with this assessment. The contextual factors are essentially directed at determining to what extent the case before the court is a case where the evidence will rightly consist of “approximations and extrapolations” as opposed to more traditional forms of social science proof, and therefore to what extent arguments based on logic and reason will be accepted as a foundational part of the s. 1 case. [Emphasis in original.]

[198] In this case, evidence of the harm to school children entitled to a certain level of educational services and to patients needing a certain level of health care services can be inferred logically from the contextual factors surrounding these work stoppages.

[199] In General Motors, “strike” legislation similar to the legislation in this case, was considered under this section of the proportionality analysis. There, the OLRB considered a submission that political “strikes” could be distinguished from job-action strikes and that the legislation was overbroad in capturing and prohibiting political “strikes”. At ¶168–172, it concluded that it would be too onerous a task to determine whether strikes were political or job-related and it upheld the legislation as justifiable under the s. 1 analysis:

¶168 Could the Legislature have adopted a less restrictive approach – for example, by exempting “political strikes” in one way or another?

¶169 Certainly the Legislature could have adopted a formulation like that. But not without prejudice to the overall objective of certainty, stability, containing industrial conflict and preserving industrial peace. And not without raising the spectre of the kind of litigation which troubled some members of the Court in Lavigne.

¶170 All strikes "send a message" of one kind or other, so an exemption for strikes that involve a "political component" would significantly alter the statutory scheme, as well as the labour relations landscape. As I have tried to illustrate earlier, an exemption like that - while easily stated - would be bound to generate uncertainty in practice, which, in turn, would lead to litigation and collective bargaining discord. It would also completely negate the utility of the no-strike pledge, providing an exception of uncertain dimensions that would only be ascertainable after the fact -and perhaps after a Charter analysis by the Board, arbitrators or the Courts.

¶171 Defining what is or is not a political protest strike (and thus what is or is not "unlawful") would be at least as difficult as determining when the expenditure of union funds is or is not for "collective bargaining purposes" -something that three of the judges in Lavigne considered so burdensome and uncertain in application that it would be unreasonable to require the Legislature to prescribe the limitation in that way. And of course, the immediate result of the strike is rather more serious for employers and the community than whether some minuscule portion of an employee's compulsory union dues are devoted to some cause with which an employee may disagree. At the very least, a legislated exception for political strikes

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (45 of 48) [3/29/2007 3:10:51 PM]

would probably mean that such strikes would become a regular feature of the labour relations landscape, given the number of government initiatives that could spark such response. Political strikes may or may not be good for the community or the economy; but it is no accident that a highly unionized (and politicized) jurisdiction like British Columbia, which once permitted "political strikes", has now adopted the more restrictive Ontario approach.

¶172 When all of these factors are considered, it seems to me that the balancing embodied in the Ontario statute (in common with others in Canada) is within the realm of reasonableness that the Courts have accorded to legislatures when addressing labour relations problems of this kind. In other words, the legislative means - a strict prohibition on strikes during a collective agreement - are not disproportionate in relation to the overall goal of containing industrial conflict, nor does such restriction unduly or unnecessarily impede the employees' freedom of expression.

[200] These comments are apposite in this case.

[201] The Reconsideration Panel reached similar conclusions in their interpretation and application of the Codes objects to minimize harm caused by work stoppages on unrelated third parties and to ensure the public interest is protected during workplace disputes. I agree that the absolute prohibition of mid-contract work stoppages meets those objectives and that no less intrusive measures could achieve those objectives. I am able to reach the same conclusion as the OLRB in General Motors based on the common sense inferences that have been drawn by members of labour boards who have expertise in the field of industrial relations.

[202] The Reconsideration Panel rejected the petitioners’ submission that it could effectively characterize work stoppages, especially in the public sector, as either political or labour-related on a case-by-case basis. I agree with that finding and with the conclusion that any method involving less comprehensive or intrusive measures would not be practical in the labour relations context. Such an undertaking would, in my view, be chaotic in the midst of a politically motivated work stoppage.

[203] I am also unable to envisage how the wrongful-action model might operate as a practical method for addressing illegal work stoppages by large numbers of individuals acting in concert. The assessment of damages would be exceedingly difficult to calculate, in both time and resources, in circumstances where the primary goal of those most affected by the conduct was a quick end to the work stoppage. Nor do I see how such a remedy would have any preventive effect on future illegal work stoppages, given the time and cost that would be involved in pursuing such a remedy and the insignificant threat of disciplinary suspension as a deterrent, where the very nature of the activity includes the forfeit of wages.

[204] In Pepsi, the wrongful-action model was advanced in the context of a formulation of the common law of secondary picketing. By contrast, the circumstances of this case involve the interpretation of Charter rights. The court in Pepsi appreciated that difference, and invited the

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (46 of 48) [3/29/2007 3:10:51 PM]

legislature to craft its own and perhaps different balancing of the interests in finding a resolution of the issue. In these circumstances, the application of the wrongful-action model would, in my view, negatively impact on the overall stability of the legislation and increase the harm to third parties and the public interest. Indeed, the very integrity of the labour relations scheme could be at risk with such an approach. In such a scenario it might be questioned why any employer would agree to be bound by any collective agreement if its employees could at any time remove themselves from its governing terms by claiming they were exercising their right to political expression.

[205] In conclusion, I agree with the Reconsideration Panel’s s. 1 analysis that the expanded definition is no more than is necessary to meet the Codes objectives. A lesser measure than a complete prohibition would create uncertainty in a context where certainty is the cornerstone of the legislative regime.

(d) Do the deleterious effects of the infringement outweigh its beneficial effects?

[206] The final consideration under the Oakes test is the weighing of the deleterious and salutary effects of the legislation. It involves a cost-benefit analysis. The benefits are measured in terms of the importance of the objective the law is designed to achieve and the extent to which it is likely to achieve that objective. The costs are measured in terms of the nature and scope of the Charter infringement. This stage of the test requires a finding that the benefits of the infringement outweigh its costs.

[207] The Codes salutary effects of furthering workplace peace and stability are clear and substantial and have benefited all British Columbians. The cost of imposing a time and manner or form restriction on union members’ freedom of expression is a partial infringement at best. Organized members still maintain the right to the full range of political expression. They are only inhibited only in that this right may not be exercised in contravention of their collective agreement. To the extent that this is an infringement, the deleterious effect is less than the salutary effect. Moreover, the large scale harm that is caused by an interruption of public services, to many of the most vulnerable members of our society, weighs heavily against the salutary benefits of exercising the right to political expression subject to the limit that it be conducted in accordance with the terms of a collective agreement.

[208]
The restriction imposed by the expanded definition is limited to the physical consequences of work stoppages, not to the ability to engage in or the content of political expression. While it restricts use of the economic strike weapon, it does not restrict the right to engage in or deliver a political message by attendance at protest rallies. The salutary effects of the restriction protects innocent third parties from undue harm, protects the public from becoming a captive audience and having to make an involuntary contribution to a political cause they may not support, and fosters a more constructive workplace environment.
K.
SUMMARY

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (47 of 48) [3/29/2007 3:10:51 PM]

[209] In the result, I have concluded that the Reconsideration Panel’s decision upholding the constitutional validity of the definition of strike was correct in law. With respect, I have determined that the definition of strike does not infringe s. 2(b) as it does not prohibit the content of political expression and its purpose and effect does not prevent individuals from exercising their right to political expression by attending protest rallies. The restriction merely requires that such political expression not involve a mid-contract withdrawal of services. It is a restriction of time and form rather than a ban on the content of expressive activity and is consistent with restrictions on the expressive activity of all individuals in an employment relationship.

[210] If I am found to be in error in that determination, I am satisfied the Reconsideration Panel was correct in finding that the impugned definition is saved by s. 1. I agree with their conclusion that the overall objective of certainty, stability and the preservation of industrial peace justify the imposition of time and form restrictions on mid-contract work stoppages in a free and democratic society.

“D. Smith J.”

http://www.courts.gov.bc.ca/Jdb-txt/SC/07/03/2007BCSC0372.htm (48 of 48) [3/29/2007 3:10:51 PM]