mar. 13. 2020

Preface: (although this is a noise injunction case, the more interesting legal point is that BC rejected Ontario's soft treatment of union breach of common law societal norms)

So Unite Here Local 40, representing hotel workers decided to strike and – (how do the courts put it) – to ‘convey information’ to the general public by blocking the entry to the hotels and making so much noise that no one can stay in the hotel. This is just ‘conveying information’ says the union buttressed by weighty Canadian precedent.

Westin hotels and neighbouring residents moved for a noise injunction.

As way of background on picketing, how did the latest SCC put it:

[36] The effectiveness of picket lines is dependent on the ability of the union to try to convince the public not to cross the picket line and do business with the employer. Cory J. recognized the significance of the role of public opinion in Kmart, where he observed that "it is often the weight of public opinion which will determine the outcome of the dispute": para. 46. ...

We are all deemed, by SCC fiat, to accept the fact that being effectively prohibited by union force, from entering a commercial business, well that’s just the union convincing the public of the rightness of its economic case.

Given how the BC supreme court judge Fitzpatrick started, the reader could be forgiven for thinking this was going to be another union-apology case where yet another Canadian court twisted another foundational common law rule in favour of this privileged class.

Not so!

Fitzpatrick decided to discuss ‘the limits of legal picketing’ (para 18), emphasizing that there were in fact union activities which could ‘stray into unlawful or tortious actions.’ (para 19).

Fitzpatrick: ‘it is common ground that picketing that obstructs the lawful entry to and exit from premises is unlawful and impermissible.’ (para 20).

But, says the union, don’t forget what Brown J. (as he then was) on the Ontario superior court said: we can ‘temporarily delay’ everyone from coming and going. That’s just ‘communicating information.’ (para 21).

Comment: here in this short space of 20 paragraphs in a trivial noise case, we have the SCC and the Ontario superior court setting aside not one, but two of the tenets of common law on which English progress was built. Can I block the commercial economic activity of another economic agent? Yes. Can I block the general public from coming and going? Yes.

Then Fitzpatrick shows a spark of resistance to orthodoxy! He rejects Brown’s overthrow of the common law of free movement and says that Brown’s statement is not good law in British Columbia. (para 22).

As for noise, the evidence was:

54 In a nutshell, since the picketing began, and for the entire daily time frame of the picketing, the Union's members have undertaken a campaign of producing constant and deafening sounds from the picket lines. This level of noise has directly negatively affected those working or staying at the Hotels; in addition, the noise has reached far and beyond the Hotels' premises to affect other people in the vicinity. It is quite apparent that the noise heard in these videos, to any normal person, is quite extreme.

67 The Union members have chosen to use all manner of instruments to create the noise, such as vuvuzelas, drums and sirens. One particular egregious use of a siren occurred when, on at least some occasions, the siren was purposefully directed at hotel guest rooms as early as 7:00 a.m., where presumably guests was trying to sleep or perhaps relax in the morning. In addition, the Union members have taken measures to use other equipment for the purpose of amplifying these sounds to extreme levels.

Fitzpatrick then cites Cromwell on nuisance (from that same 2013 SCC that was so solicitous of union action above)

58 In Antrim Truck Centre Ltd. v. Ontario (Transportation), 2013 SCC 13, Justice Cromwell described the elements of the tort of nuisance as follows:

[19] The elements of a claim in private nuisance have often been expressed in terms of a two-part test of this nature: to support a claim in private nuisance the interference with the owner's use or enjoyment of land must be both substantial and unreasonable. A substantial interference with property is one that is non-trivial. Where this threshold is met, the inquiry proceeds to the reasonableness analysis, which is concerned with whether the non-trivial interference was also unreasonable in all the circumstances. ...

82 The measured noise levels were as follows:

a)at the Hyatt (70 dBA level), the dBA levels were consistently at the 75-80 dBA range, often at the 80-85 dBA level and even reached above 90 dBA on two occasions, even when measured further away than 6.1 meters;

b)at the Pinnacle (70 dBA level), the dBA levels were consistently at the 80-90 dBA range, adjusted to account for measurement closer to the source than 6.1 meters; and

c)at the Westin (60 dBA level), the dBA levels were consistently above 75 dBA and were often above 80 dBA, even when measured at 25 meters away, well further away than 6.1 meters.

83 In Motorplex, the Court stated that each 10 dBA increase in sound level equates to a doubling of the sound in the listener's perception and an increase of 20 dBA is a fourfold increase: para. 51. The Union does not dispute that this is a relevant factor to be considered on these applications.

Fitzpatrick finds this noise conduct to be unreasonable (para 85) and grants the injunction (para 104)

It is not often that a statement of Canadian liberal orthodoxy is allowed to be questioned. But Fitzpatrick questions how the union could be ‘communicating information’ when they were banging drums and sirens constantly. (para 89).

Charter Comment:

Does anyone take the 'strike as method of communication' story seriously? There is not, and never was, any rational nexus between a union holding a business hostage and a union ‘conveying information’ to the public. Dickson, as usual, had it right when he said that a strike was economic duress upon a company. The 'expression' theory was a convenient judicial foil to allow liberal judges to cloth unions with ‘freedom of expression’ thereby immunizing otherwise gangster conduct.

Economics Comment:

As every lawyer knows, unions have a ‘constitutional right’ to strike. This piece of economic irrationality has become the highest constitutional orthodoxy in Canada. Every economist knows that unions are economically irrational monopolies restricting the supply of labour. Because lawyers shun economics, lawyers are never taught (and never learn) the basic empirical proof of the economic inefficiency of unions. Instead, Canadian law glorifies unionization and buttresses conduct that in ordinary circumstances would be nuisance, interference with economic relations, trespass, false arrest (barring entry on a public way to a commercial establishment). Canadian law has had to be repeatedly defeated and distorted in order to privilege these favoured entities. The Canadian union privilege arose from the era when Laskin and Frank Scott were kicking the privy council for not being more ‘New Dealish’. Given the utter economic irrationality and old-fashioned illegality of this conduct, it’s nice to see a singular case, which injured union privilege, for once.

(common law:1 unions: 0)