Expanded picketing rights in Quebec

January 4, 2010

Contacts

Related services

Introduction

In a recent decision regarding an interlocutory injunction requested by the Canadian Museum of Civilization (the “Employer” or the “Museum”) against striking members of the Public Service Alliance of Canada (the “Union”), Société du Musée Canadien des Civilisations v. Alliance de la fonction publique du Canada, section locale 70396,1 the Superior Court of Quebec held that it was acceptable for striking union members to delay entry of visitors to the Museum for periods of 1 to 5 minutes, according to a specific schedule, in order to allow the Union to inform visitors of the reasons for the strike. This is the first instance in Quebec where a court has allowed a union to delay the public’s entry to an employer’s property for the purpose of informing the public of the reasons for the strike.

Delaying access to an employer's property

In this groundbreaking ruling, the Employer sought to make permanent, until final judgment, a provisional interlocutory judgment which, first, ordered that the Union abstain from picketing on the Museum’s property and, second, allowed the Union to delay visitors’ entry to the museum. With regard to the first question, the Court held that the Union had sufficient space and that by extending the picketing area the “general population would be taken hostage”.2

The Court then dealt with the second and more important issue. The provisional order had allowed the Union to delay people from entering the Museum between 7:00 A.M. and 9:00 A.M. for a maximum of 5 minutes and from 9:01 A.M. until the following day at 6:59 A.M. for a maximum of 1 minute. However, despite the Union’s request, the Court refused to increase the maximum period of time allowed to delay visitors as it viewed any increase as unreasonable. In the Court’s view, while the Union has a right to inform the public of the reasons for its strike, a period of 1 minute is sufficient time to give visitors a pamphlet and explain the circumstances of the strike. Any additional delay would be a departure from the objective of providing information and be tantamount to obstruction. In its order, the Court specified, as was the case in the provisional interlocutory judgment, that any visitor who did not want to be delayed had the right to pass through the picket line unimpeded.

While Courts in Quebec have recognized the right of picketers to inform the public of the reasons for their strike or the motives of a lockout, this decision represents a milestone in that the Court has acknowledged that this right allows unions to delay public entry to an employer’s property. The concept of delaying entry, while common in other provinces, had previously been foreign to Quebec. In allowing this type of delay, the Court must weigh the Union’s right to freedom of expression against the public’s right to freedom of movement and the employer’s right to carry on its business. In balancing these competing rights, the Court held that the delay must be minimal and that visitors may exercise their right to refuse to be delayed. Nevertheless, in the case of the Museum or any other employer with high traffic, a delay of even 1 minute per visitor could result in a substantial traffic backlog, resulting in a serious obstacle for visitors and, accordingly, possible economic loss to the Employer. It remains to be seen if this precedent will be followed by the Quebec courts in the future.

^Back to top

Footnotes

  1. 2009 QCCS 4967 (available in French only).
  2. Id., paragraph 21 (our translation).
^Back to top

The purpose of this publication is to provide information as to developments in the law. It does not contain a full analysis of the law nor does it constitute an opinion of Norton Rose OR LLP on the points of law discussed.

No individual who is a member, partner, shareholder, director, employee or consultant of, in or to any constituent part of Norton Rose Group (whether or not such individual is described as a “partner”) accepts or assumes responsibility, or has any liability, to any person in respect of this publication. Any reference to a partner means a member of, as the case may be, Norton Rose LLP or Norton Rose Australia or Norton Rose OR LLP or Norton Rose South Africa (incorporated as Deneys Reitz Inc) or a consultant or employee of Norton Rose LLP or Norton Rose Australia or Norton Rose OR LLP or Norton Rose South Africa (incorporated as Deneys Reitz Inc) or one of their respective affiliates with equivalent standing and qualifications.