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Saskatchewan Law Review. Volume 51, Issue 2 (1986-1987), p. 273-280.


Does the Charter of Rights and Freedoms apply to private action? Does it apply to the courts? Does it apply to the common law? The Supreme Court of Canada in Retail, Wholesale and Department Store Union v. Dolphin Delivery (1986)1 has addressed each of these three fundamental questions. The facts of the case were these. Dolphin Delivery was a courier company. The Retail, Wholesale and Department Store Union, which represented the employees of another courier company, Purolator Courier, threatened to picket the premises of Dolphin Delivery. The purpose of the picketing was to publicize an industrial dispute between the union and Purolator. Dolphin Delivery was not a party to that dispute, thus the picketing of Dolphin Delivery's premises would have been "secondary picketing." Dolphin Delivery sought and obtained from the courts of British Columbia an injunction to restrain the union from picketing Dolphin's premises. The ground upon which the injunction was granted was that secondary picketing in the circumstances of this case would constitute the common law tort of inducing a breach of contract. There was a prohibition on secondary picketing in the B.C. Labour Code, but this statutory prohibition did not apply, because the applicable labour law was federal (in view of Purolator's interprovincial operations), and the Canada Labour Code was silent on secondary picketing, leaving it to be regulated by the common law. In the Supreme Court of Canada, the union argued that the injunction ought to be set aside on the ground that it limited freedom of expression, guaranteed under s.2(b) of the Charter. The Supreme Court of Canada, sitting as a seven-judge bench, held unanimously that the injunction should stand. McIntyre J., with the concurrence of Dickson C.J., Estey, Chouinard and Le Dain JJ., wrote the principal opinion, holding that the Charter did not apply to private action of the kind involved in this case. Beetz and Wilson JJ., who wrote separate concurring opinions, each agreed with McIntyre J.'s opinion on the applicability of the Charter. On that issue, therefore, the seven-judge bench was unanimous.

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