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.
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).
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.
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.