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Facts[]

The Retail, Wholesale and Department Store Union, Local 580 (RWDSU) tried to have Dolphin Delivery declared an "ally", which would permit members of the union to picket outside of Dolphin's office, while Dolphin workers would be able to cross the picket line and go to work. However, Dolphin applied for and was granted an injunction based on the fact that the common law does not permit secondary picketing. There is British Columbia legislation prohibiting secondary picketing, but it does not apply because this falls under federal jurisdiction. There is no federal legislation concerning secondary picketing and therefore, this case falls to the common law. RWDSU is challenging this decision, claiming that the injunction infringed on the s.2(b) right to freedom of expression, and the s.2(d) freedom of association. The injunction was granted at trial and upheld upon appeal.

Issue[]

  1. Does the injunction violate s.2(b) and (d) of the Charter?
  2. Does the Charter apply to the common law?
  3. Does the Charter apply in private litigation?

Decision[]

Appeal dismissed.

Reasons[]

McIntyre, writing for the majority, rejected the s.2(d) claim, however they easily find that this injunction does infringe upon the Charter guaranteed freedom of expression in [s.2(b). Therefore, the important question is whether the Charter applies to this case. McIntyre states that the Charter clearly applies to the common law. He says that this is obvious from s.52(1) of the Constitution Act, 1982, which says that any law that is inconsistent with the Constitution is of no force or effect.

He then goes on to discuss whether the Charter applies to private litigation. He decides that it does not apply to private litigation, as s.52(1) of the Constitution Act, 1982 must be reconciled with s.32(1) of the Charter, which says that the Charter only applies to Parliament and the legislatures. He defines "government" more broadly to include all branches of the executive governments of the provinces and the federal government. He says that the Charter will apply to these branches of the government whether they are involved in public or private litigation, and whether it is legislation or common law that is in question. He disagrees with Hogg that court orders are governmental actions; therefore he concludes that the Charter does not apply in this case. He says that although the courts must apply the common law in a manner consistent with the Charter, when no government act is involved the Charter does not apply. The fact that there is no reliance on government action here means that the Charter claim must fail.

RatioThe Charter applies to the common law, but only insofar as the common law is the basis of some governmental action that, it is alleged, infringes on the Charter; therefore the Charter only applies to government action; it does not apply in cases between two private parties.[]

  • Court orders are not government actions.
  • "Government" in s.32(1) of the Charter refers to all branches of the federal and provincial governments.
  • The courts must abide by the Charter, and apply the common law in a manner consistent with it, but their orders cannot be challenged on the basis of the Charter in a case between two private parties.
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