Wednesday, November 4, 2009

Fudge and Tucker on Picketing Before the British Columbia Court of Appeals

'Everybody Knows What a Picket Line Means': Picketing Before the British Columbia Court of Appeal has just been posted by Judy Fudge, University of Victoria Faculty of Law and Eric Tucker, York University Osgoode Hall Law School. It appeared in BC Studies, No. 162, pp. 53-79, Summer 2009. Here's the abstract:
The general hostility of courts towards workers’ collective action is well documented, but even against that standard the restrictive approach of the British Columbia Court of Appeal stands out. Although this trend first became apparent in a series of cases before World War II in which the court treated peaceful picketing as unlawful and narrowly interpreted British Columbia’s Trade Union Act (1902), which limited trade unions’ common law liability, this study will focus on the court’s post-War jurisprudence. The legal environment for trade union activity was radically altered during World War II by PC 1003, which provided unions with a procedural mechanism for acquiring collective bargaining rights and imposed a duty on employers to recognize and bargain in good faith with certified unions. At the end of the war, all provinces, including British Columbia, enacted collective bargaining legislation based on this model. The law, however, did not alter the judicially created common law rules governing collective action. As a result, important questions about the interaction between the statutory regime and the common law were unresolved. As trade union membership grew and labour militancy increased, the British Columbia Court of Appeal was soon given the opportunity to address these issues and in a series of decisions handed down through the 1950s and 1960s it narrowly limited the ambit for lawful workers’ collective action. The Social Credit government largely supported the court’s approach but when the first NDP government in British Columbia was elected in 1972 it stripped the court of its power to regulate picketing and transferred it to an administrative board. This chapter will examine the court’s work during this period and investigate the reasons for the court’s approach, taking into account the economic, social and political context of British Columbia as well as considering the backgrounds and attitudes of the members of the court during this period.

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