Tuesday, 18 December 2012

On this Day in the History of the International Labour Movement

RWDSU v Dolphin Delievery Ltd. - December 18, 1986

On this day in 1986, the Supreme Court of Canada issued its landmark ruling in RWDSU v. Dolphin Delivery Ltd [1986] 2 SCR 573. The case is one of two landmark decisions made by the Supreme Court concerning the right to strike.

In June 1981, Purolator locked out its employees in response to a labour dispute. Dolphin Delivery continued to make deliveries for Purolator through a third company. In November 1982, the union representing the Purolator workers gave notice that it would picket Dolphin Delivery. Dolphin Delivery applied for a court order declaring such picketing to be illegal. This picket fell under federal jurisdiction, but the Canada Labour Code was not clear as to whether the union had the right to picket a third party. Dolphin Delivery obtained an injunction from the B.C. Superior Court ordering the union not to picket until the legal issues were resolved. The union appealed on the basis that the injunction breached their s. 2(b) freedom of expression rights, as protected by the Charter. The union lost the appeal and appealed to the Supreme Court.

Though the Court found that picketing is freedom of expression and a protected right under s. 2(b) of the Charter, the union lost the case, as the Court would not extend the s. 2(b) protections to the picketing of third parties. The Court found that it was reasonable to restrain picketing so that it would not involve any other than the actual parties. While the decision was an important advancement for the interests of labour organizations across the country insofar as picketing was found to be a right protected by s. 2(b).

In our view the Supreme Court decision in Dolphin Delivery ought to be reconsidered by the Court. A third party who performs the tasks of the union is involved in the labour dispute, whether they are party to the collective agreement or not. Such third parties should not be insulated from the picketing efforts of the union. The decision, in effect, creates a large loophole for employers who wish to engage in union-busting tactics. For example, an employer could outsource jobs to a third party who the union cannot picket and essentially put itself in a position to largely ignore the striking and picketing of a union. This skews the whole basis of labour relations and creates a power imbalance that can only lead to further disempowerment of unions and union-busting by employers.

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