Publications

Pepsi-Cola Canada Beverages (West) Ltd v.
Retail, Wholesale and Department Store Union, Local 558
Garry Burkart and Linda Reiber
(Personally and as Representatives of all the members of the Retail,
Wholesale and Department Store Union, Local 558) and

Attorney-General for Alberta
Canadian Labour Congress
Canadian Civil Liberties Association (CCLA)      
(As Interveners) SUPREME COURT OF CANADA File No.: 27060. McLachlin C.J.
L'Heureux-Dubé J
Gonthier J
Iacobucci J
Major J
Bastarache J
Binnie J
Arbour J
LeBel J Tuesday, October 31 2000; Thursday, January 24, 2002
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN FUNDAMENTAL RIGHTS – Freedom of Expression – Picketing as a form of free expression – Legality of - When may picketing be restrained - Whether third parties may seek protection from suffering economic harm foisted by picketing activities – Whether proscribing picketing due to economic harm to third parties an unjustifiable restriction on free expression CONSTITUTIONAL LAW – Canadian Charter of Rights and Freedoms – Position of in relation to common law – When Common Law rules conflict with Charter values – Which takes primacy – Duty on courts to develop the Common Law in constancy with Charter values EMPLOYMENT RIGHTS – Lock out and strike action accompanied by picketing activities – Whether a just form of exerting pressure to resolve industrial disputes – Relevance of Picketing to maintaining equilibrium and economic health in labour relations EMPLOYMENT RIGHTS - Picketing – Primary and secondary picketing – Whether a valid distinction – Whether secondary picketing illegal per se at Common Law – When common law rules would apply to restrain picketing Facts:
The respondent is a union of workers employed by the appellant and engaged to work at the appellant's plant in Saskatchewan. Following a breakdown in negotiations between the respondent and appellant over the renewal of an expired agreement, the appellant locked out the respondents who then proceeded on a strike, during which the respondents picketed the appellant's premises and other business outlets of the appellant, namely its retail outlets, management personnel's homes, and displayed placards in front of a hotel where the appellant's substitute workforce were lodged. These other outlets were called secondary locations. The appellant sought and obtained injunctions to restrain the respondent from picketing locations other than its premises, claiming that secondary pickets were illegal at common law. On appeal to the Court of Appeal, the order against picketing at the residences of the employees was upheld, but the order restraining the union from picketing at other locations than the appellant's premises was upturned, with the Court of Appeal holding that such an order could only be granted if such pickets bordered on the commission of a tort or crime. The appellants appealed the decision of the Court of Appeal, contending that secondary picketing, i.e. picketing at locations other than the employer's premises was illegal per se at common law – the Hersees Rule.
Held (Unanimously dismissing the Appeal)
Although the court has a duty to uphold and develop the common law, it will do so only to the extent that it is guided by overriding Charter values, the Charter value implicated in the instant case being the right to free expression. Freedom of expression is a Charter value that enjoys constitutional protection under the Charter. The common law rule that classifies secondary picketing, i.e., picketing at places other than the employer's primary place of business as illegal per se (Hersees rule) unduly restrains free expression, of which picketing is a form. Picketing is legal regardless of its location or character, unless its prosecution has been characterized by wrongful conduct amounting to a tort or crime. Only then would picketing be the subject of an injunctive relief. To proscribe secondary picketing on the strength of the Hersees rule would be at the undesirable expense of diminishing charter values protecting free expression. Details of Principles in the Judgment 1. Constitutional Rights Pre-eminent to Common Law
Fundamental rights and freedoms are essential values and principles that underpin democracy, and are enshrined in constitutional instruments. They are rights that evolved through a long historical and political process of development, and, for that reason, must be viewed as one of the guiding instruments in the development of the common law. The right to free expression is a fundamental constitutional value, which the development of the common law must reflect.
It is one of the fundamental concepts that formed the basis for the historical development of the political, social and educational institutions of western society. At the same time however, it must be recognized that the common law addresses a myriad of very diverse relationships and seeks to protect a host of legitimate interests not engaged by the provisions of constitutional instruments. Salient among these are the life of the economy and individual economic interests. Common law rules ensure the protection of property interests and contractual relationships. Nevertheless, where these laws implicate these fundamental constitutional values, these values may be considered. [page 518 paras A-I, page 519 paras A-C] 2. Workers Have a Right to Form Unions for the Purpose of Advancing their Interests
Workers have the right to be represented by a union, and when a union supported by a majority of the workers is in place, employers are obliged to negotiate in good faith with the union. Good faith negotiation is the primary engine of industrial peace and economic efficiency. Occasionally, however, negotiations stall and disputes threaten labour peace. When this happens, it has come to be accepted that, within limits, unions and employers may legitimately exert economic pressure on each other to the end of resolving their dispute. Thus, employees are entitled to withdraw their services, inflicting economic harm directly on their employer and indirectly on third parties which do business with their employer. Employers are similarly entitled to exert economic pressure on their employees through the use of lockouts and the hiring of replacement workers.[page 519 paras B-D] 3. Use of Economic Pressure and Infliction of Economic Harm in Labour Disputes Legitimate
Labour disputes may touch important sectors of the economy, affecting towns, regions, and sometimes the entire country. The cost to the parties and the public may be significant. Nevertheless, they are justified by the higher goal of achieving the resolution of employer-employee disputes and the maintenance of economic and social peace. The legally limited use of economic pressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage the parties to resolve their differences in a way that both can live with [page 519 paras E-G] 4. Picketing Engages the Constitutional Value of Freedom of Expression
Picketing, however defined involves expressive action. It engages one of the highest constitutional values: freedom of expression. Primary and secondary picketing are forms of expression, even when associated with tortious acts. Freedom of expression is the foundation of a democratic society. The core values which free expression promotes include self-fulfillment, participation in social and political decision making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one's circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one's life and perhaps the wider social, political, and economic environment.   Free expression is particularly critical in the labour context. “It is not only an important but an essential component of labour relations.” The values associated with free expression relate directly to one's work. A person's employment, and the conditions of their workplace, inform one's identity, emotional health, and sense of self-worth. [page 523 paras B-H] 5. Freedom of Expression in Labour Relations Plays a Vital Role in Redressing Imbalances in Employment Relationships
Personal issues at stake in labour disputes often go beyond the obvious issues of work availability and wages. Working conditions, like the duration and location of work, parental leave, health benefits, severance and retirement schemes, may impact on the personal lives of workers even outside their working hours. Expression on these issues contributes to self-understanding, as well as to the ability to influence one's working and non-working life. Moreover, the imbalance between the employer's economic power and the relative vulnerability of the individual worker informs virtually all aspects of the employment relationship. Free expression in the labour context thus plays a significant role in redressing or alleviating this imbalance. It is through free expression that employees are able to define and articulate their common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause. “It is often the weight of public opinion which will determine the outcome of the dispute”.   Free expression in the labour context benefits not only individual workers and unions, but also society as a whole. As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour conditions into the public realm. [page 523 para I, page 524 paras A-F] 6. Right of Free Expression not Absolute
The right of free expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately be curtailed. Same applies when interpreting the common law to reflect [constitutional rights]. The starting point must be freedom of expression. Limitations are permitted, but only to the extent that this is shown to be reasonable and demonstrably necessary in a democratic society. [page 524 paras G-I] 7. Picketing may be Justifiably Restrained to Protect Third Parties from Undue Suffering
Although picketing during labour disputes, is primarily directed at inflicting economic harm on the employer, the economic interests of third parties may also suffer harm as a result of picketing activities. Economic harm to third party interests however is not in itself unlawful or tortuous. Economic harm is an accepted consequence of labour disputes, and third parties cannot be entirely insulated from harm. Nonetheless, free expression through picketing is not unqualified, so that the right to picket becomes qualified by the rights of third parties to be protected from undue harm. [page 527 paras C-I] 8. Relevant Approaches to Resolving Conflicting Interests in a Labour Dispute
Three approaches to resolving the clash of interests among parties involved or affected by a labour dispute have been developed. The first, the illegal per sedoctrine, otherwise known as the Hersees rule, turns on location, and distinguishes between primary picketing, which is picketing the premises of the employer, and secondary picketing, which is picketing at places other than the employer's premises. The Hersees rule adjudges the former legal, unless it involves tortious or criminal conduct, while the latter is always illegal at common law, so, because it was contemplated that the common law viewed secondary pickets as involving tortious acts of “besetting” calculated to cause economic harm (such as trespass, inducement of breach of contract and restraint on the rights of third parties to trade), or criminal activity. This doctrine however is widely viewed as leaning against freedom of expression in the labour law context. The second approach, the Primary Employer and Ally doctrines, (modified Hersees approach) moderates the strict illegal per se doctrine. Under this doctrine, courts have refused to enjoin “secondary picketing” where the location of the picketing, though not the employees' primary place of employment, nevertheless belongs to the employer, or where picketing was carried out at the parent company, or at a company that shared corporate ownership with the primary employer, or where the struck operation was effectively assisting the employer in carrying on business during a labour dispute (the ally doctrine). Although these modifications to the illegal per se doctrine softened the harshness of the doctrine, they have made the common law difficult to implement in a clear and consistent manner. The third approach, the ‘wrongful action' model, is preferred to the first two, and starts with the proposition that all picketing is permitted unless it can be shown to be wrongful or unjustified. It defines wrongful or unjustified picketing as one involving the commission of a tort or crime. This approach stems from the proposition, that “generally speaking, picketing constitutes an exercise of the fundamental freedom of expression which can only be circumscribed by laws, whether statutory, regulatory, or common, that accord with .. constitutional norms …”. [page 528 paras C-F, page 533 para E-G, page 534 paras B-E] On the Record: Per McLachlin CJ & LeBel J
“A wrongful action approach to picketing is clearer and more rational than the absolute or modified prohibition approach represented by Hersees. The Hersees or modified Hersees approach uses location as the primary criterion for determining when picketing is legal. Yet the reason for prohibiting picketing is not its location, but its character and impact — the wrong it represents and damage it does. Location is merely a legal marker, and not a very satisfactory one at that; as we have seen, the Hersees jurisprudence is dominated by formalistic debates centering on location”. “The wrongful action approach, by contrast, focuses on the character and effects of the activity, as opposed to its location. It gets at the heart of why picketing may be limited. As discussed, the umbrella of picketing covers a diverse range of behaviours, tactics and consequences that often have little to do with location. Where picketing occurs has little to do with whether it is peaceful and highly respectful of the rights of others on the one hand, or violent and disrespectful of the rights of others on the other hand. By focusing on the character and effect of expression rather than its location, the wrongful action approach offers a rational test for limiting picketing, not an arbitrary one.
“Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation, will be impermissible, regardless of where it occurs. [page 537 para F, page 538 para C] 9. The Right of Third Parties to Protection From Economic Harm not Pre-Eminent Over the Right of Workers to Express Themselves
Although protection from economic harm, as an important value, may justify curtailing free expression, it does not enjoy absolute or pre-eminent importance over free expression. The common law has never recognized a sweeping right to protection from economic harm in the absence of tortious activity. [page 536 paras F-G] On the Record; Per McLachlin CJ & LeBel J
Not only do the Hersees and modified Hersees rules deny adequate protection for free expression and place excessive emphasis on economic harm, they do this in a rigid, unflexible way. These rules are more about shutting off the message than regulating the activity. By contrast, a wrongful action approach is sufficiently flexible to accommodate both interests. Courts may intervene and preserve the interests of third parties or the struck employer where picketing activity crosses the line and becomes tortious or criminal in nature. It is in this sense that third parties will be protected from “undue” harm in a labour dispute. Torts such as trespass, intimidation, nuisance and inducing breach of contract will protect property interests and ensure free access to private premises. Rights arising out of contracts or business relationships will also receive basic protection. Torts, themselves the creatures of common law, may grow and be adapted to current needs”.
“In summary, a wrongful action approach to picketing allows for a proper balance between traditional common law rights and Charter values, and falls in line with the core principles of […] collective bargaining” [page 537 paras A-D] On the Record: Per McLachlin CJ & LeBel J
“It is important that neutral third parties be protected from wrongful conduct and that labour disputes be prevented from unduly spreading … We are not persuaded, however, that it is necessary to ban all secondary picketing in order to accomplish these goals. Prohibiting strike conduct which is tortious or criminal offers protection against a wide variety of misconduct associated with strike action. Insofar as conduct is non-tortious, it is not clear that more is required to protect third parties”. [page 542 paras D-E] 10. Distinction Between Primary and Secondary Picketing is illusory
The distinction between primary and secondary picketing is difficult, and potentially arbitrary. It has engendered difficulties in defining the relevant location of a secondary picket. The wrongful action approach is not location-based, and disposes of problems associated with distinguishing primary from secondary picket. It allows all picketing, whether “primary” or “secondary”, unless it involves tortious or criminal conduct. [page 538 paras C-E]
Cases Referred to in the Judgment
1. Air Canada v. C.A.L.P.A. (1997), 28 B.C.L.R. (3d) 159
2. Alex Henry & Son Ltd. v. Gale (1976), 14 O.R. (2d) 311
3. Brett Pontiac Buick GMC Ltd. v. National Association of Broadcast Employees and Technicians, Local 920 (1989), 90 N.S.R. (2d) 342 (1989), 94 N.S.R. (2d) 398
4. Commonwealth Holiday Inns of Canada Ltd. v. Sundy (1974), 2 O.R. (2d) 601
5. CTV Television Network Ltd. v. Kostenuk (1972), 26 D.L.R. (3d) 385, aff'd (1972), 28 D.L.R. (3d)
6. Daishowa Inc. v. Friends of the Lubicon (1998), 39 O.R. (3d) 620
7. Domtar Chemicals Ltd. v. Leddy (1973), 37 D.L.R. (3d) 73
8. Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94
9. Falconbridge Nickel Mines Ltd. v. Tye, [1971] O.J. No. 11 (QL)
10. Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, 2000 SCC 34
11. Neumann and Young Ltd. v. O'Rourke (1974), 53 D.L.R. (3d) 11
12. Great Atlantic & Pacific Co. of Canada, [1994] OLRB Rep. March 303
13. Heather Hill Appliances Ltd. v. McCormack (1965), 52 D.L.R. (2d) 292, aff'd [1965] O.J. No. 504 (QL)
14. Hersees of Woodstock Ltd. v. Goldstein, [1963] 2 O.R. 81 (Disapproved)
15. Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130
16. Inglis Ltd. v. Rao (1974), 2 O.R. (2d) 525
17. J. S. Ellis & Co. v. Willis (1972), 30 D.L.R. (3d) 397
18. L. Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] S.C.R. 27
19. Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211
20. Lescar Construction Co. v. Wigman, [1969] 2 O.R. 846
21. Magasins Continental Ltée v. Syndicat des employé(es) de commerce de Mont-Laurier (C.S.N.), [1988] R.J.Q. 1195
22. Maple Leaf Sports & Entertainment Ltd. v. Pomeroy (No. 2) (1999), 49 C.L.R.B.R. (2d) 285
23. McLean Trucking Co. v. Public Service Alliance of Canada, 83 C.L.L.C.
24. National Labor Relations Board v. Fruit & Vegetable Packers & Warehousemen, Local 760, 377 U.S. 58 (1964).
25. Nedco Ltd. v. Clark (1973), 43 D.L.R. (3d) 714
26. Nedco Ltd. v. Nichols (1973), 38 D.L.R. (3d) 664R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70
27. O.K. Economy Stores v. R.W.D.S.U., Local 454 (1994), 118 D.L.R. (4th) 345
28. PCL Construction Management Inc. v. Mills (1994), 124 Sask. R. 127
29. Peter Kiewit Sons Co. v. Public Service Alliance of Canada, Local 20221, [1998] B.C.J. No. 1494 (QL)
30. Provincial Express Inc. v. Canadian Union of Postal Workers (1991), 94 Nfld. & P.E.I.R. 75; Domtar Inc., [2000] O.L.R.D. No. 3761 (QL)
31. R. v. Jobidon, [1991] 2 S.C.R. 714
32. R. v. Keegstra, [1990] 3 S.C.R. 697
33. R. v. Salituro, [1991] 3 S.C.R. 654
34. R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2
35. Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313
36. Refrigeration Supplies Co. v. Ellis, [1971] 1 O.R. 190
37. Robertson Yates Corp. v. Fitzgerald, 65 C.L.L.C. para 14,091
38. Rocca Construction Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S.A. and Canada, Local 721 (1978), 21 Nfld. & P.E.I.R. 198
39. RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573
40. Soo-Security Motorways Ltd. v. Kowalchuck (1980), 9 Sask. R. 354
41. Toronto Harbour Commissioners v. Sninsky (1967), 64 D.L.R. (2d) 276
42. U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083
43. Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701
44. Watkins v. Olafson, [1989] 2 S.C.R. 750
45. Williams v. Aristocratic Restaurants (1947) Ltd., [1951] S.C.R. 762
46. 2985420 Canada Inc. v. Fédération du commerce Inc., [1995] R.J.Q. 44
47. 683481 Ontario Ltd. v. Beattie (1990), 73 D.L.R. (4th) 346R. v. Butler, [1992] 1 S.C.R. 452 Statutes and Regulations Referred to in the Judgment:
1. Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 32(1).
2. Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 104(3).
3. Labour Relations Act, R.S.N. 1990, c. L-1, s. 128(3).
4. Labour Relations Code, R.S.A. 2000, c. L-1, s. 84.
5. Labour Relations Code, R.S.B.C. 1996, c. 244, s. 1.
6. Trade Union Act, R.S.S. 1978, c. T-17, ss. 27, 28. Authors Cited:
1. Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose-leaf updated November 2001, release No. 16).
2. Arthurs, H. W. “Comments” (1963), 41 Can. Bar Rev. 573.
3. Beatty, David M. “Secondary Boycotts: A Functional Analysis” (1974), 52 Can. Bar Rev. 388.
4. Carrothers, A. W. R., E. E. Palmer and W. B. Rayner. Collective Bargaining Law in Canada, 2nd ed. Toronto: Butterworths, 1986.
5. Cox, Archibald. “Strikes, Picketing and the Constitution” (1951), 4 Vand. L. Rev. 574.
6. Fleming, John G. The Law of Torts, 9th ed. Sydney, Australia: LBC Information Services, 1998. Representation: 
1. Robert G. Richards, Q.C., (and M. Jean Torrens) for the appellant.
2. Larry W. Kowalchuk, for the respondents.
3. Roderick Wiltshire, for the intervener, Attorney-General for Alberta.
4. John Baigent, for the intervener, Canadian Labour Congress.
5. David Sherriff-Scott, for the intervener, Canadian Civil Liberties Association (CCLA). 1 THE CHIEF JUSTICE AND LEBEL J (Delivering the Leading Judgment)
This case raises the issue of when if ever secondary picketing — typically defined as picketing in support of a union which occurs at a location other than the premises of that union's employer — may be legally conducted. The respondents (the “Union”) were on strike against Pepsi-Cola Canada Beverages (West) Ltd. (“Pepsi-Cola”) in Saskatchewan. The strike escalated and the Union picketed some of Pepsi-Cola's retail outlets, placed placards outside a hotel where substitute workers were staying, and demonstrated outside the homes of Pepsi-Cola's management personnel. The issue is whether such conduct is unlawful and can be enjoined. 2      The law on this issue has been clarified by legislation in a number of Canadian provinces. Saskatchewan has legislated to abolish the tort of restraint of trade in the union context: The Trade Union Act, R.S.S. 1978, c. T-17, s. 27. However, apart from this it has left the common law in place. The Union, supported by the Canadian Labour Congress and the Canadian Civil Liberties Association, argues that the common law as presently articulated is difficult to apply and unnecessarily curtails the right to free expression. Pepsi-Cola, on the other hand, defends the present rule as workable and appropriate to protect business interests and prevent labour disputes from spreading to non-parties to the dispute.
3      For the reasons that follow, we conclude that secondary picketing is generally lawful unless it involves tortious or criminal conduct, and that the Saskatchewan Court of Appeal correctly disposed of the issues on this basis. I. Facts
4      The Union gained certification as bargaining agent for the employees of a bottling plant and delivery facility in Saskatchewan. Their collective agreement had expired, and negotiations broke down. The employer, Pepsi-Cola, locked out its employees and the employees walked out on strike. The lockout and strike were legal under The Trade Union Act. The conflict quickly grew bitter. At the news of the lockout, several employees took control of the warehouse, office and yard. They disabled trucks, blocked entrances and threatened management. Security guards left the scene in fear for their safety. An interim injunction was issued against the Union's acts of trespass, intimidation and nuisance. Pepsi-Cola then regained control of its facilities and resumed business, using management personnel and substitute labour brought in from Calgary and Winnipeg. 5      The following week, as Pepsi-Cola tried to resume deliveries to its clients, some of the Union members attempted to prevent the movement of trucks, interfere with deliveries, discourage the management and the substitute work force, and dissuade customers from carrying on business with Pepsi-Cola. Protests and picketing spread to “secondary” locations, where Union members and supporters engaged in a variety of activities. They picketed certain retail outlets, thus preventing the delivery of Pepsi-Cola's products and dissuading the store staff from accepting delivery; they carried placards in front of a hotel where members of the substitute labour force were staying; and they convened outside the homes of some of Pepsi-Cola's management personnel and chanted slogans, screamed insults, and uttered threats of harm. II. Judgments
1. Saskatchewan Court of Queen's Bench
6      On May 16, 1997, Allbright J. of the Saskatchewan Court of Queen's Bench granted an interlocutory injunction ordering the Union to vacate and refrain from trespassing at Pepsi-Cola's premises in Saskatoon. The Union was also restrained from picketing “except in an orderly manner and provided such picketers remain off of the said premises”. The order also prohibited the Union from obstructing or blocking access to Pepsi-Cola's premises and from attempting to intimidate Pepsi-Cola's employees, customers, or anyone else entering or leaving Pepsi-Cola's premises. 7      On May 23, 1997, Barclay J. dissolved the previous injunction and issued a new interlocutory order with the following terms:
1      The defendants and each of them and any person acting under their instruction, direction or behest and any member of the defendant Union, and any other person having knowledge of this Order are, until the trial of this action, or until further order, hereby:
i) restrained from picketing or congregating at any location other than the plaintiff's premises located at the intersection of Millar Avenue and 43rd Street and bearing civic address 830 - 43rd Street East, Saskatoon, Saskatchewan and the Custom Truck premises at 2410 Northridge Drive, Saskatoon, Saskatchewan, provided that all such picketers remain off the premises;
      ii) restrained from obstructing or blocking places of entrance to or egress from the said premises;
      iii) restrained from threatening, harassing, or intimidating or attempting to harass or intimidate in any way the plaintiff's employees, any person seeking to do business with the plaintiff, and/or any person seeking to enter or leave the said premises;
      iv) restrained from picketing, watching or besetting, trespassing, creating a nuisance or congregating at the residences of the plaintiff's employees or their families, or intimidating, threatening or obstructing the plaintiff's employees or their family members;
      v) restrained from blocking and/or impeding the plaintiff's vehicles or otherwise interfering in any manner whatsoever with the plaintiff's employees in the carrying out of their duties;
      vi) restrained from trespassing upon or re-entering the plaintiff's premises.
8      Parts i) and iv) of Barclay J.'s order effectively prohibited the Union from engaging in picketing activities at secondary locations. The Union appealed these parts of the order on the basis that it breached the strikers' rights to freedom of expression and association under ss. 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms.
      2. Saskatchewan Court of Appeal (1998), 167 D.L.R. (4th) 220 9      Writing for the majority of the Saskatchewan Court of Appeal, Cameron J.A. allowed the Union's appeal in part. The majority upheld the part of the injunction which prevented the Union from congregating at the residences of Pepsi-Cola's employees, as these activities were found to have amounted to tortious conduct. However, the section restraining the Union from picketing at any location other than Pepsi-Cola's premises was quashed, thus allowing the Union to engage in peaceful picketing at secondary locations. 10      Cameron J.A. reasoned that the nature and purpose of picketing involves the presence of pickets and the conveying of information in order to interfere with and put economic pressure on the operation of the enterprise. Cameron J.A.

went on to note at p. 230 that “picketing constitutes an exercise of the fundamental freedom of expression which can only be circumscribed by laws, whether statutory, regulatory, or common, that accord with the constitutional norms” of the Charter. Given that the province of Saskatchewan had not imposed any statutory restriction on picketing, this form of collective expression remained lawful in principle, and courts could restrain it only when it was accompanied by a specific tort, such as trespass, nuisance, intimidation, breach of contract or defamation. The majority thus disagreed with the obiter comments of the Ontario Court of Appeal in Hersees of Woodstock Ltd. v. Goldstein, [1963] 2 O.R. 81, that held that secondary picketing was illegal per se at common law. 11      The Court of Appeal viewed the picketing at the secondary locations as essentially peaceful and informational, aimed at dissuading others from doing business with Pepsi-Cola. Once the truly violent or tortious acts had been enjoined, the picketing did not affect anyone's use or enjoyment of their property. In dissent, Wakeling J.A. viewed the secondary picketing as illegal per se at common law, and would have dismissed the appeal. 12      Pepsi-Cola was granted leave to appeal to this Court, and interveners were granted status to raise policy issues before the Court. III. Legislation
13 Canadian Charter of Rights and Freedoms
  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;. . .
  (d) freedom of association.      32. (1) This Charter applies
(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and
(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.       Trade Union Act, R.S.S. 1978, c. T-17
      27. A trade union and the acts thereof shall not be deemed to be unlawful by reason only that one or more of its objects are in restraint of trade. IV. Issues
14      The main issue in this appeal is the legality of secondary picketing at common law. A secondary issue is whether the employer, Pepsi-Cola, can apply for relief against secondary picketing, or whether only the third parties affected by secondary picketing may apply. V. Analysis 1. Preliminary Questions
15      Two preliminary issues arise: (1) whether the courts have the power to make the sort of change advocated by the Union; (2) if so, how the Charter may affect the development of the common law. 16      On the first issue, we conclude that the change in the common law here at issue lies within the proper power of the courts. The status of secondary picketing at common law remains unsettled and inconsistent across jurisdictions. The Court in this case is not required to overturn a well-established rule at common law, but rather to clarify the common law given two strands of conflicting authority, each with some claim to precedent. Resolution of the conflicting lines of authority lies well within the powers of a court of common law (see R. v. Jobidon, [1991] 2 S.C.R. 714, at p. 733). Moreover, any change to the common law should be incremental. Proposed modifications that will have complex and far-reaching effects are in the proper domain of the legislature (see R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670; Watkins v. Olafson, [1989] 2 S.C.R. 750, at pp. 760-61; Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, 2000 SCC 34, at para. 43). 17      Against this conclusion, Pepsi-Cola argues that the failure of Saskatchewan to legislate on the matter, as some other provinces have, suggests that the Legislature intended to keep the common law as it is. We cannot agree. There is nothing to suggest that the statutory silence should be interpreted as a legislative intent to crystallize the common law and preclude its development in this area. The law as it presently stands was developed by judges in response to social, moral and economic needs. Equally, judges can and should alter the common law to reflect these needs as they change over time: Salituro, supra; see also Watkins, supra, and Friedmann Equity, supra. The Saskatchewan Legislature must be taken to have understood this when they chose to leave the matter of secondary picketing to the common law. 18      The second preliminary issue is how the Charter may affect the development of the common law. Here again the answer seems clear. The Charter constitutionally enshrines essential values and principles widely recognized in Canada, and more generally, within Western democracies. Charter rights, based on a long process of historical and political development, constitute a fundamental element of the Canadian legal order upon the patriation of the Constitution. The Charter must thus be viewed as one of the guiding instruments in the development of Canadian law. 19      This Court first considered the relationship between the common law and the Charter in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, where McIntyre J. concluded, at p. 603: Where, however, private party “A” sues private party “B” relying on the common law and where no act of government is relied upon to support the action, the Charter will not apply. I should make it clear, however, that this is a distinct issue from the question whether the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution. The answer to this question must be in the affirmative. In this sense, then, the Charter is far from irrelevant to private litigants whose disputes fall to be decided at common law.
      The reasons of McIntyre J. emphasize that the common law does not exist in a vacuum. The common law reflects the experience of the past, the reality of modern social concerns and a sensitivity to the future. As such, it does not grow in isolation from the Charter, but rather with it. 20      Although s. 2(b) of the Charter is not directly implicated in the present appeal, the right to free expression that it enshrines is a fundamental Canadian value. The development of the common law must therefore reflect this value. Indeed, quite apart from the Charter, the value of free expression informs the common law. As McIntyre J. observed in Dolphin Delivery, supra, at p. 583.
      Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. 21      At the same time, it must be recognized that the common law addresses a myriad of very diverse relationships and seeks to protect a host of legitimate interests not engaged by the Charter. Salient among these are the life of the economy and individual economic interests. Common law rules ensure the protection of property interests and contractual relationships. Nevertheless, where these laws implicate Charter values, these values may be considered. 22      In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 97, the Court adopted a flexible balancing approach to addressing alleged inconsistencies between the common law and Charter values:
Charter values, framed in general terms, should be weighed against the principles which underlie the common law. The Charter values will then provide the guidelines for any modification to the common law which the court feels is necessary.       The Court also cautioned that: “[f]ar-reaching changes to the common law must be left to the legislature” (para. 96). Finally, the Court determined that the party alleging an inconsistency between the common law and the Charter bears the onus of proving “that the common law fails to comply with Charter values and that, when these values are balanced, the common law should be modified” (para. 98). It is upon this basis that we proceed to balance the values at stake in the present appeal. 2. The Competing Values and Interests (a) Historical Perspective of the Function of Picketing in a Labour Dispute
23      The relationship between picketing and free expression is cast against the backdrop of a labour relations system that has profoundly changed over the past half-century. It was not until after the Second World War that governments began to formally accept that unions have a role to play in the economy and society. In the decades that followed, the fundamental propositions of modern labour law took root. 24      Workers have the right to be represented by a union, and when a union supported by a majority of the workers is in place, employers are obliged to negotiate in good faith with the union. Good faith negotiation is the primary engine of industrial peace and economic efficiency. Occasionally, however, negotiations stall and disputes threaten labour peace. When this happens, it has come to be accepted that, within limits, unions and employers may legitimately exert economic pressure on each other to the end of resolving their dispute. Thus, employees are entitled to withdraw their services, inflicting economic harm directly on their employer and indirectly on third parties which do business with their employer. Employers are similarly entitled to exert economic pressure on their employees through the use of lockouts and, in most jurisdictions in Canada, through the hiring of replacement workers. 25  Labour disputes may touch important sectors of the economy, affecting towns, regions, and sometimes the entire country. The cost to the parties and the public may be significant. Nevertheless, our society has come to see it as justified by the higher goal of achieving resolution of employer-employee disputes and the maintenance of economic and social peace. The legally limited use of economic pressure and the infliction of economic harm in a labour dispute has come to be accepted as a legitimate price to pay to encourage the parties to resolve their differences in a way that both can live with (see generally G. W. Adams, Canadian Labour Law (2nd ed. (loose-leaf)), at pp. 1-11 to 1-15). (b) Picketing and Free Expression
26      The term “picketing” attaches to a wide range of diverse activities and objectives, and allows for innumerable variations. One text on Canadian labour law hazards this general description of the common themes that define picketing, as well as the diversity this broad term allows:

Ingredients common to the act of picketing in all jurisdictions appear to be the physical presence of persons called pickets, the conveying of information, and the object of persuasion. The “presence” element may take many forms, from one or two persons, in the vicinity of the entrance of the premises, comparatively indifferent to the outcome of the dispute, to large numbers calculated physically to prevent ingress and egress. . . . The conveying of information may also take many forms, from the use of handbills, arm bands, placards and sandwich boards to sound trucks, and from the recitation of events to the conveying of exhortative messages. The object of persuasion appears to remain constant, to induce a boycott of the picketed operations by employees, customers, suppliers and others on whom the employer is dependent for the successful operation of his enterprise. (A. W. R. Carrothers, E. E. Palmer and W. B. Rayner, Collective Bargaining Law in Canada (2nd ed. 1986), at pp. 609-10) 27      In labour law, picketing is commonly understood as an organized effort of people carrying placards in a public place at or near business premises. The act of picketing involves an element of physical presence, which in turn incorporates an expressive component. Its purposes are usually twofold: first, to convey information about a labour dispute in order to gain support for its cause from other workers, clients of the struck employer, or the general public, and second, to put social and economic pressure on the employer and, often by extension, on its suppliers and clients (see, for example, Great Atlantic & Pacific Co. of Canada, [1994] OLRB Rep. March 303, at paras. 32-33, per McCormack, Chair). 28      Generally, provincial labour law statutes regulating picketing refrain from any attempt at expressly defining it (see, for example, the Newfoundland Labour Relations Act, R.S.N. 1990, c. L-1, s. 128(3); the New Brunswick Industrial Relations Act, R.S.N.B. 1973, c. I-4, s. 104(3); the Alberta Labour Relations Code, R.S.A. 2000, c. L-1, s. 84). The British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244, is an exception, in which picketing is defined as:
1(1) In this Code: . .  ”picket” or “picketing” means attending at or near a person's place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to
(a) enter that place of business, operations or employment,
(b) deal in or handle that person's products, or
(c) do business with that person,
      and a similar act at such a place that has an equivalent purpose;       This definition illustrates the breadth of the concept of picketing. On this definition, picketing arguably would extend to include the action of a group of people standing near a location — without carrying placards, handing out leaflets or addressing anyone — if their presence is intended to persuade someone else from doing business at that location. 29      A distinction is sometimes made between primary and secondary picketing. Primary picketing typically refers to picketing at the premises of the employer; secondary picketing is picketing at other premises. No provincial legislature has expressly defined “secondary picketing”. However, in carving out the core of permissible picketing, legislatures sometimes resort to location as a marker. (See the Newfoundland Labour Relations Act and the New Brunswick Industrial Relations Act.)
30      The above discussion illustrates the difficulty in defining picketing in a detailed manner. Picketing represents a continuum of expressive activity. In the labour context it runs the gamut from workers walking peacefully back and forth on a sidewalk carrying placards and handing out leaflets to passers by, to rowdy crowds shaking fists, shouting slogans, and blocking the entrances of buildings. Beyond the traditional labour context, picketing extends to consumer boycotts and political demonstrations (see Daishowa Inc. v. Friends of the Lubicon (1998), 39 O.R. (3d) 620 (Ont. Ct. (Gen. Div.))). A picket line may signal labour strife. But it may equally serve as a physical demonstration of individual or group dissatisfaction on an issue.
31      For the purposes of this appeal, we find it unnecessary to define picketing in a detailed and exhaustive manner. We proceed rather on the basis that picketing may involve a broad range of activities, from the “traditional” picket line where people walk back and forth carrying placards, to the dissemination of information through other means. 32      Picketing, however defined, always involves expressive action. As such, it engages one of the highest constitutional values: freedom of expression, enshrined in s. 2(b) of the Charter. This Court's jurisprudence establishes that both primary and secondary picketing are forms of expression, even when associated with tortious acts: Dolphin Delivery, supra. The Court, moreover, has repeatedly reaffirmed the importance of freedom of expression. It is the foundation of a democratic society (see R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; R. v. Keegstra, [1990] 3 S.C.R. 697; R. v. Butler, [1992] 1 S.C.R. 452). The core values which free expression promotes include self-fulfilment, participation in social and political decision making, and the communal exchange of ideas. Free speech protects human dignity and the right to think and reflect freely on one's circumstances and condition. It allows a person to speak not only for the sake of expression itself, but also to advocate change, attempting to persuade others in the hope of improving one's life and perhaps the wider social, political, and economic environment. 33      Free expression is particularly critical in the labour context. As Cory J. observed for the Court in U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083, “[f]or employees, freedom of expression becomes not only an important but an essential component of labour relations” (para. 25). The values associated with free expression relate directly to one's work. A person's employment, and the conditions of their workplace, inform one's identity, emotional health, and sense of self-worth: Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; KMart, supra. 34      Personal issues at stake in labour disputes often go beyond the obvious issues of work availability and wages. Working conditions, like the duration and location of work, parental leave, health benefits, severance and retirement schemes, may impact on the personal lives of workers even outside their working hours. Expression on these issues contributes to self-understanding, as well as to the ability to influence one's working and non-working life. Moreover, the imbalance between the employer's economic power and the relative vulnerability of the individual worker informs virtually all aspects of the employment relationship: see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 92, per Iacobucci J. Free expression in the labour context thus plays a significant role in redressing or alleviating this imbalance. It is through free expression that employees are able to define and articulate their common interests and, in the event of a labour dispute, elicit the support of the general public in the furtherance of their cause: KMart, supra. As Cory J. noted in KMart, supra, at para. 46: “it is often the weight of public opinion which will determine the outcome of the dispute”. 35      Free expression in the labour context benefits not only individual workers and unions, but also society as a whole. In Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, the reasons of both La Forest and Wilson JJ. acknowledged the importance of the role played by unions in societal debate (see also R. v. Advance Cutting & Coring Ltd., [2001] 3 S.C.R. 209, 2001 SCC 70, and Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94). As part of the free flow of ideas which is an integral part of any democracy, the free flow of expression by unions and their members in a labour dispute brings the debate on labour conditions into the public realm. 36      This said, freedom of expression is not absolute. When the harm of expression outweighs its benefit, the expression may legitimately be curtailed. Thus, s. 2(b) of the Charter is subject to justificative limits under s. 1. 37      The same applies in interpreting the common law to reflect the Charter. The starting point must be freedom of expression. Limitations are permitted, but only to the extent that this is shown to be reasonable and demonstrably necessary in a free and democratic society.
(c) Protection of Innocent Third Parties to Labour Disputes
38      On the other side of the balance lies the interests of the employer and third parties in protection from excessive economic and other harm as a result of picketing and other labour action. As previously discussed, one important objective of labour picketing is the infliction of economic harm on the employer with an eye to compelling a favourable resolution of the dispute. Thus, expressive action in the labour context, as in other situations, may cause economic harm. However, the appellant argues that economic harm arising from labour disputes should be confined to the actual parties to the dispute — it should not be permitted to harm innocent third parties, who have neither influence over the outcome of the dispute, nor the ability to bring it to a close. 39     The appellant emphasizes that secondary picketing expands the labour dispute beyond its core, increasing both the incidence of picketing and the number of businesses and persons affected by it. The targets of secondary activity, such as retailers of a struck product, may suffer considerable economic damage, which may in turn affect customers and employees, as well as a host of other business relations. The appellant contends that the interests of these third parties, as well as public order generally, compel restraints on the scope of picketing activity. 40      On this point, the appellant relies on Dolphin Delivery, supra. In that case, the union represented the locked out employees of Purolator, an Ontario-based courier service. Dolphin undertook to supply delivery service to Purolator custom ers in the Vancouver area during this lockout. The union planned to picket Dolphin's premises, and Dolphin succeeded in getting an injunction to prohibit the intended picketing. The union challenged the injunction all the way to this Court, where it was ultimately upheld. 41      The challenge to this restriction on secondary picketing was framed as a violation of the union's right to freedom of expression under s. 2(b) of the Charter. As no picket line ever went up, the Court chose to assume that the picketing would have been peaceful and that Dolphin's unionized workers would have respected the picket line. In the end, McIntyre J. found that the Charter did not apply, and the injunction was upheld on the basis of the common law tort of inducing breach of contract. 42      McIntyre J. was of the view that if the Charter did apply, the injunction could have been justified under s. 1. While acknowledging that all picketing (even where accompanied by tortious conduct) involves some element of expression, McIntyre J. recognized the legitimacy of some curtailment of secondary picketing in order to prevent the economic harm of labour disputes from spreading too broadly into the community. McIntyre J. stated, at p. 591: 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 legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others. [Emphasis added.] 43      To the extent that the appellant relies on the obiter comments in Dolphin Delivery to support the notion that secondary picketing in itself is a tort, the appellant's argument must fail. First, as Cory J. cautioned in KMart, supra, these comments from Dolphin Delivery must be read in the specific context of that case (see para. 36). McIntyre J. held that the picketing in question would have been tortious, amounting to inducing breach of contract. McIntyre J. stated at p. 588 that “[o]n the basis of the findings of fact that I have referred to above, it is evident that the purpose of the picketing in this case was to induce a breach of contract between the respondent and Supercourier”, and again at p. 603, “[i]n the case at bar . . . [w]e have a rule of the common law which renders secondary picketing tortious and subject to injunctive restraint, on the basis that it induces a breach of contract”. It was therefore on the assumption that the anticipated picketing would have been tortious that McIntyre J. proceeded with the s. 1 analysis — not on the basis of secondary picketing being illegal per se. As such, Dolphin Delivery did not make any final pronouncement on the legality of secondary picketing as such, and up until now, the issue has never been addressed directly by this Court. 44      Secondly, although McIntyre J.'s comments reflect a concern with the interests of third parties to labour disputes who may incur collateral damage, they should not be read as suggesting that third parties should be completely insulated from economic harm arising from labour conflict. As Cory J. noted in KMart, supra, the objective of the restraint on picketing in Dolphin Delivery was to ensure that third parties did “not suffer unduly from the labour dispute over which it has no control” (para. 35). Therefore, third parties are to be protected from undue suffering, not insulated entirely from the repercussions of labour conflict. Indeed, the latter objective would be unattainable. Even primary picketing frequently imposes costs, often substantial, on third parties to the dispute, through stoppages in supplies or the loss of the primary employer as a customer (see Carrothers, supra, at p. 675). Indeed, labour disputes in important sectors of the economy may seriously affect a whole town or region, even the nation itself. As McIntyre J. recognized in the above quote, the social cost of a labour dispute is often great. Yet this impact on third parties and the public has never rendered primary pick eting illegal per se at common law to protect the interests of third parties. 45     So we are left with this: innocent third parties should be shielded from “undue” harm. This brings us to the question that lies at the heart of this appeal. How do we judge when the detriment suffered by a third party to a labour dispute is “undue”, warranting the intervention of the common law? At this stage, it suffices to note that the protection of innocent third parties from the economic fallout of labour disputes, while a compelling consideration, is not absolute. Some economic harm to third parties is anticipated by our labour relations system as a necessary cost of resolving industrial conflict.
3. Potential Solutions — Surveying the Landscape
46      Picketing engages distinct and frequently clashing interests among the parties affected by a labour dispute. The present appeal casts the right of unions to freely express their views on the conditions of their employment and the facts of a labour dispute against the resulting potential for economic damage to third parties. The parties' opposing submissions on the legality of secondary picketing — and the contending lines of authority on which they rely — represent conflicting views on how these competing interests are best reconciled in a democratic society. 47      Three possible options emerge from the parties' submissions: (1) an absolute bar on secondary picketing (the “illegal per se” doctrine); (2) a bar on secondary picketing except for “allied” enterprises (the modified “Hersees” rule); and (3) permitting secondary picketing unless the picketing amounts to a tort or other wrongful conduct. We will consider each option in turn. (a) The Illegal Per Se Doctrine
48      This view holds that secondary picketing is illegal per se, in the manner of an independent tort, even in the absence of any other wrongful or illegal act. 49      The doctrine turns on location. It rests on a distinction between picketing the premises of the employer against whom the union is striking (primary picketing) and picketing other premises (secondary picketing). Primary picketing is legal unless it involves tortious or criminal conduct, while secondary picketing is always illegal. 50      The “illegal per se” doctrine for secondary picketing originates from the obiter comments of the Ontario Court of Appeal in Hersees, supra. Hersees and its line of reasoning lie at the centre of this appeal. In Hersees, a union had been certified as a bargaining agent for workers of the clothing manufacturer, Deacon Brothers Sportwear Ltd. (“Deacon”). The union's policy was to avoid strikes if possible. As a result, it did not call a strike against Deacon when a labour dispute arose. Instead, the union approached the clothing retailer, Hersees, and asked it to refrain from ordering merchandise from Deacon. When Hersees refused, the union organized a picket line outside Hersees' retail outlet. The picketing was limited to two pickets each carrying one sign which read in part: “Attention Shoppers — Deacon Bros. Sportwear Ltd. sold at Hersee's — made by Non-union Labour” (p. 83).

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