Alberta (Attorney General) v. Retail Wholesale Canada, Local 285 et al., 2001 ABQB 49

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 19, 2000
• Citations: 2001 ABQB 49;(2001), 284 A.R. 82 (QB)

Alta. (A.G.) v. Retail Wholesale Can. (2001), 284 A.R. 82 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. FE.033

In The Matter Of the Labour Relations Code, S.A. 1988, c. L-1.2; as amended;

And In The Matter Of a Decision of the Alberta Labour Relations Board dated June 20, 2000.

The Attorney General of Alberta (applicant) v. Retail Wholesale Canada, Local 285, a Division of National Automobile, Aerospace, Transportation and General Workers of Canada, Alberta Labour Relations Board, Brewers Distributors Limited and MTE Logistix Edmonton Inc. (respondents) (Action No. 0003-13765)

Construction Labour Relations, an Alberta Association (applicant) v. Alberta Labour Relations Board, Attorney General of Alberta, Retail Wholesale Canada, Local 285, a Division of the National Automobile, Aerospace, Transportation and General Workers of Canada, Brewers Distributors Limited and MTE Logistix Edmonton Inc. (respondents)

(Action No. 0003-13542; 2001 ABQB 49)

Indexed As: Alberta (Attorney General) v. Retail Wholesale Canada, Local 285 et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

January 26, 2001.

Summary:

The Alberta Labour Relations Board held that s. 82(1) of the Labour Relations Code was of no force and effect to prohibit picketing at locations operated by third party employers (ally or alter ego employers) to whom all work previously performed by the picketing employees had been contracted. The section violated the picketing employees' right of freedom of expression (Charter, s. 2(b)) and was not saved by s. 1. An intervenor and the Alberta Attorney General sought judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Civil Rights - Topic 1850

Freedom of speech or expression - Limitations on - Picketing - Section 82(1) of the Labour Relations Code permitted picketing at the striking or lock-out employees' place of employment and not elsewhere - The Alberta Court of Queen's Bench upheld the Alberta Labour Relations Board's decision that s. 82(1) was of no force and effect to prohibit picketing at locations operated by third party employers (ally or alter ego employers) to whom all work previously performed by the picketing employees had been contracted to allow the employer to continue operations during the labour dispute - The section violated the picketing employees' right of freedom of expression (Charter, s. 2(b)) and was not saved by s. 1 - Such a prohibition, in the circumstances, completely insulated that employer from the economic effects of picketing by denying its employees any location at which they might effectively picket - See paragraphs 1 and 24 to 88.

Civil Rights - Topic 1852.1

Freedom of speech or expression - Limitations on - Labour legislation - [See Civil Rights - Topic 1850 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - General - Application of - General - Section 82(1) of the Labour Relations Code permitted picketing at the striking or lock-out employees' place of employment and not elsewhere - The Attorney General of Alberta argued that s. 82, although embodied in legislation, was not subject to the Charter because it was permissive legislation, legitimizing an activity that was absolutely prohibited at common law (the tortious infliction of economic harm through picketing) - As the common law did not engage the Charter, and if the right to picket was seen to exist at common law outside of s. 82(1), then picketing did not engage the Charter - The Alberta Court of Queen's Bench rejected the argument - See paragraphs 31 to 47.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 1850 ].

Labour Law - Topic 8154

Industrial relations - Picketing - Right to picket - "Ally" of employer - [See Civil Rights - Topic 1850 ].

Labour Law - Topic 8164

Industrial relations - Picketing - Right to picket - Secondary picketing - [See Civil Rights - Topic 1850 ].

Labour Law - Topic 8205

Industrial relations - Picketing - Regulation of picketing - Provincial legislation - Application of - [See Civil Rights - Topic 1850 ].

Labour Law - Topic 8280

Industrial relations - Picketing - Place of picketing - Employer's premises - General - [See Civil Rights - Topic 1850 ].

Cases Noticed:

United Food and Commercial Workers, Local 1518 v. KMart Canada Ltd. et al. (1999), 245 N.R. 1; 128 B.C.A.C. 1; 208 W.A.C. 1; 176 D.L.R.(4th) 607 (S.C.C.), refd to. [para. 21].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al. (1991), 122 N.R. 361; 47 O.A.C. 271; 81 D.L.R.(4th) 121 (S.C.C.), refd to. [para. 21].

International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd. (1996), 198 N.R. 99; 135 D.L.R.(4th) 385 (S.C.C.), refd to. [para. 22].

Canada (Attorney General) v. Public Service Alliance of Canada (1993), 150 N.R. 161; 101 D.L.R.(4th) 673 (S.C.C.), refd to. [para. 22].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 36].

British Columbia Government Employees' Union v. British Columbia (Attorney General) (1988), 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93; 53 D.L.R.(4th) 1 (S.C.C.), refd to. [para. 38].

Pepsi-Cola Canada Beverages (West) Ltd. v. Retail, Wholesale and Department Store Union, Local 558 et al. (1998), 172 Sask.R. 40; 185 W.A.C. 40; 167 D.L.R.(4th) 220 (C.A.), refd to. [para. 41].

Little Sisters Book and Art Emporium et al. v. Canada (Minister of Justice) et al. (2000), 263 N.R. 203; 145 B.C.A.C. 1; 237 W.A.C. 1 (S.C.C.), refd to. [para. 51].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 54].

Allsco Building Products Ltd. v. United Food and Commercial Workers International Union, Local 1288P (1999), 245 N.R. 67; 216 N.B.R.(2d) 1; 552 A.P.R. 1; 176 D.L.R.(4th) 647 (S.C.C.), refd to. [para. 57].

Hill v. Hill (William) (Park Lane Ltd.), [1949] A.C. 530 (H.L.), refd to. [para. 62].

General Teamsters, Local 362 v. Oil Sands Transportation Ltd., [1995] Alta. L.R.B.R. 257, refd to. [para. 66].

Consolidated-Bathurst Packaging Ltd., Re, [1982] 3 Can. L.R.B.R. 342, refd to. [para. 72].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 87].

Statutes Noticed:

Labour Relations Code, S.A. 1988, c. L-1.2, sect. 82(1) [para. 24].

Authors and Works Noticed:

Beatty, D.M., Secondary Boycotts: A Functional Analysis (1974), 52 Can. Bar Rev. 388, p. 401 [para. 73].

Canada, Report of the Royal Commission Inquiry into Labour Disputes (Ivan C. Rand) (1968), generally [para. 75].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), pp. 92 [para. 62]; 93 [para. 63].

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997), p. 854 [para. 47].

Rand, Ivan C., Report of the Royal Commission Inquiry into Labour Disputes - see Canada, Report of the Royal Commission Inquiry into Labour Disputes.

Counsel:

R.S. Wiltshire, for the Attorney General of Alberta;

N. Schlesinger, for the Alberta Labour Relations Board;

D. Ross, for the Construction Labour Relations;

L. Kanee, for Retail Wholesale Canada.

This application was heard on December 19, 2000, before Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 26, 2001.