Moot 4 – Local 735, Communications Workers of Kingston and the Association of Free Speech v. Her Majesty the Queen in Right of Kingston

Local 735, Communications Workers of Kingston

and the Association of Free Speech

Appellants

v.

Her Majesty the Queen in Right of Kingston

Respondent

File No.: K25312

February 3, 2007

Present: Stephenson, Fraser and Frakstein JJ.A.

ON APPEAL FROM THE KINGSTON SUPERIOR COURT OF JUSTICE

[1] FRAKSTEIN J.A. (orally) – This is an appeal from the decision of Chavez J. dated November 4, 2005. Chavez J. dismissed an application in which the appellant union challenged the constitutional validity of s. 45 of the Kingston Labour Relations Act (the Act) and sought a declaration that it is regulated by federal labour relations law so that the Act, provincial legislation, does not apply to it. The appellant Association brought an application seeking the same relief. Chavez J. dismissed that application, holding that the Association did not have standing to bring the application.

[2] The appellant union has been certified under s. 32 of the Act as the bargaining agent for workers employed in Kingston by Compuspeed Inc. As will become important later in these reasons, if the Act does not apply in these cirucmstances and the labour relations between the workers represented by the appellant union and the employer, Compuspeed Inc., are regulated federally, then the union has no status to bring this challenge. If the Act, a provincial statute, gaev the union existence and legal recognition, a finding that the Act does not apply to these workers means that the union enjoys no existence or legal recognition. It cannot maintain this proceeding. For this reason, it seems that the workers or the appellant union enlisted the Association of Free Speech to join this proceeding as an applicant alongside the union.

[3] The Association of Free Speech was incorporated under the laws of Kingston by certain of the workers represented by the appellant local on February 6, 1999

[3] The Association of Free Speech was incorporated under the laws of Kingston by certain of the workers represented by the appellant local on February 6, 2004. Evidence adduced at trial shows that it has $125.35 of assets. However, it has articles of incorporation which set out the objects of the Association. These include the “promotion of free speech on labour relations matters” and “the peaceful communication of issues of concern to the public concerning labour relations”. Since incorporation, the Association has sponsored a number of lectures and discussions on the topic of the dispute between the local and Compuspeed Inc. at public places, such as public libraries and hotel meeting rooms. It has also published advertisements about the dispute in various area newspapers.

[4] The key section at issue in this case is s. 45 of the Act. In 1997, s. 45 came into force. Section 45 prohibits the picketing of third party premises during industrial disputes in some circumstances. It reads as follows:

45. (1) In this section,

“obstruct” means impeding the access of persons to entrances to buildings and includes engaging in expressive activities within 100 meters of buildings, but does not include expressive activities in designated expression areas;

“expressive activities” includes the holding of signs and the handing out of information leaflets in relation to an industrial dispute governed by this Act by five or more people acting in concert;

“designated expression area” means any area 15 meters from any premises and no more than 20 meters square but not in any part inside a pedestrian zone and there may be only two designated expression areas for each entrance to a building;

“pedestrian zone” means a clear path, perpendicular to entrances to a building, 30 meters wide, running from the entrances to a public thoroughfare.

(2) No person shall obstruct the entrance to any buildings whose workers are themselves not on strike.

[5] The Minister of Labour, introducing this amendment in the Legislature on January 4, 1997, outlined the circumstances giving rise to it:

The Hon. Mr. Phillip Hughes (Minister of Labour): I take great pleasure in introducing Bill 125, An Act to Protect the Public in Labour Disputes, to this House.

This Bill, if passed, will amend the Kingston Labour Relations Act by regulating picketing of premises belonging to third parties.

It should be noted that the Kingston Labour Relations Act does not prevent the picketing of an employer’s premises by unions and their members concerning an industrial dispute at that employer’s place of business. For example, employees who are on strike against a particular employer may picket outside that employer’s premises and they are regulated by the ordinary law.

The concerns which gave rise to the introduction of this Bill are well known. It has recently become common practice for certain unions to picket suppliers and others who deal with employers whose employees are on strike. While those unions are perfectly entitled to express their views about a strike, statistics show that these innocent third parties suffer a drastic decline in business as a result of picketing activity, even when it is peaceful. Further, there have been instances where some persons outside the premises of innocent third parties have shouted at passersby, intimidating them. There is the threat that a passerby might lash back at picketers and violence will erupt.

[6] The evidentiary record in this case in support of the Minister’s statements is fairly sparse. The statistics mentioned by the Minister are statistics offered to him by the League of Kingston Business. These statistics show that business at the premises of third party employers typically drops by 20% during picketing activity. At trial this evidence was adduced by the trial judge. Finally, the concern about violence erupting is supported by just a tiny amount of evidence: counsel for Kingston adduced evidence of two convictions in the last year for minor assault stemming from picketing on third party employers’ premises and Police Chief Dreffier testified that “the potential for violence in such situations is always a concern”.

[7] The workers in the appellant union work for an internet service provider based in Kingston, Compuspeed Inc. Compuspeed Inc. has many offices across the country but only the workers in Kingston are on strike. The appellant union is certified under the provincial Kingston Labour Relations Act. The workers of Compuspeed Inc. have gone on strike over wages and working conditions. The strike has lasted from February 3, 2004 to the present time. It has been a long and bitter dispute. It has become a political issue – it is raised at least a few times every month in Question Period in the Kingston provincial legislature and there is plenty of press concerning the issue. The workers wish to picket third party employers’ premises and hand out pamphlets. Jackie Yarrow, one of the workers, testified at trial that they are having difficulty drawing attention to their dispute and gaining public sympathy because the business premises of Compuspeed Inc. in Kingston are premises to which the public generally does not enter. The public deals with Compuspeed primarily through computers and so there is no need for the public to access the premises of Compuspeed. She testified that it is critical for the workers to bring to the public their plight and the only way is to picket third party premises to which the public comes and goes.

[8] The appellant union attacks s. 45 of the Act on the basis of s. 2(b) of the Charter. I agree with the trial judge that although there is an infringement of s. 2(b) of the Charter, the section is demonstrably justified under s. 1. It is apparent from the section that it has been enacted in response to public safety grounds and economic prosperity concerns. Although the trial judge properly stated that the justification evidence is hardly cogent and compelling, I am prepared to draw a reasoned apprehension of danger on the basis of the material before me, an apprehension which is sufficient to justify the measure. As a matter of common sense, a gathering of understandably frustrated workers on strike crowded next to passersby who wish to access public premises without difficulty and without bother might result in violence. I do not consider the testimony of the Police Chief to be speculative or not worthy of weight. I further believe that the Legislature has done a good job in tailoring the measure to respect the free speech rights of the union. The union suggested that the pedestrian corridor of 30 meters was too wide, since members of the public could walk through the corridor and be too far away to receive pamphlets distributed by the union. This may be the case, but the union has no right to force its message onto the public if the public does not want it. It can also engage in picketing, with the use of large signs, in order to communicate its message to the public. Finally, the Association’s activities show that there are many ways in which the message of the union may be communicated to the public. I am not prepared to second guess the Legislature’s choice of 30 meters as the size of the corridor.

[9] The union has indicated that it wishes to picket, protest and distribute leaflets outside of the Legislature and wishes to come closer to M.P.P.’s and journalists in order to press their case. The union has filed written undertakings that any such activity would be non-violent. The union submits that this is expression at the very core of s. 2(b), namely political activity. The union adds that the section prohibits even just six people from walking up to an M.P.P. with a leaflet in their hands. Again, I would not engage in line drawing and second-guessing of the Legislature’s exercise of legislative discretion in these circumstances. The Legislature has chosen to draw the line at a protest of six or more people. I also note that the section does not prohibit such activity outside of the context of an industrial dispute. And people remain free to call or write their M.P.P.’s. Any breach of s. 2(b) is quite trivial and easily justified under s. 1.

[10] The union is also concerned about the fact that the measure has the effect of limiting the number of people who may protest in a “designated expression area”. For example, the Kingston legislative building has only one main entrance at the front and the provision has the effect of limiting the number of people who may protest. The union has argued that there is “strength in numbers” and that a protest by 500 people is more powerful than a protest by 40. Again, I think that this argument misses the mark. The Legislature is entitled to protect public safety and the effect on lawful businesses and there is no doubt, as a matter of common sense, that a protest by 500 people more seriously affects the Legislature’s concerns than a protest by 40. The legislation appears well-tailored and I would uphold it.

[11] Federal labour relations legislation does not contain any prohibition on the picketing of third party premises in industrial disputes. Both appellants have argued that s. 45 of the Act is a measure of the provincial legislature and does not apply to the workers or the industrial dispute in question because the workers and the industrial dispute are federally regulated. Section 45 itself prohibits “expressive activities” which includes the holding of signs and the handing out of information leaflets in relation to an industrial dispute governed by the Act. Disputes governed by federal legislation are not, on the terms of the Act, covered by the Act.

[12] Both appellants argue that Compuspeed Inc. is a “federal work or undertaking” within the meaning of s. 92(10) of the Constitution Act, 1867 and so it is a federally regulated entity. As I have mentioned, if this argument is correct, then the union, as an entity whose existence is attributable only to provincial labour law, has no status to bring the challenge. Thus, I hold (as did the trial judge) that the appellant Association is the only entity that can bring the challenge.

[13] The following facts, which are the only facts found by the trial judge, are relevant to this challenge:

- Compuspeed Inc. has been incorporated under the Canada Business Corporations Act.

- Compuspeed’s head office is in Kingston. However, it has offices in Halifax, Montreal, Winnipeg and British Columbia.

- Compuspeed is engaged in the business of providing the public with access to the world wide web. It is known as an “Internet Service Provider” and provides this service across Canada.

- All paycheques and financial matters are dealt with in Kingston.

- From the standpoint of Compuspeed’s customers, the organization is one seamless organization.

- The branch offices of Compuspeed conduct their own employee evaluations and prepare their own advertising, which advertising is reviewed by head office. Employees do not generally rotate among the various offices. Individual offices set their own hours of work and have their own worker safety policies.

- There are small computer servers in each branch office. These are the computer servers to which the customers dial in. However, these servers are monitored by computer by persons in Kingston and occasionally personnel from Kingston will travel to branch offices to maintain the servers.

[14] The governing law seems to be in a Supreme Court of Canada case called Westcoast. However, I need not consider this aspect of the challenge further as I hold that the Association does not have standing to assert the claim. Standing is not possible on the basis of the test in Canadian Council of Churches. Individual workers of the appellant union are more than capable of seeking a declaration that their labour relations are federally governed. As well, they can attempt to obtain certification under federal legislation. This is not a case where public interest standing must be granted in order to ensure that a provision is not immunized from constitutional challenge.

[15] Therefore, like the trial judge, I dismiss the applications brought by the appellants, with costs.

[16] STEVENSON J.A. (orally) -- I agree.

[17] FRASER J.A. (orally) -- I agree.

Appeal dismissed.