It is suggested that the courts are the wrong forum to resolve labour disputes so as to facilitate the legislative policy of collective bargaining. A preferable alternative would appear to be an administrative tribunal. The British Columbia Labour Relations Board established by the British Columbia Labour Code is frequently referred to as a prototype of such a tribunal.
The cases dealing with picketing for approximately the past decade are examined in light of the above proposition. Picketing was selected as an analytical category because of its high visibility incidence and involvement of third parties. The judicial response is examined during the various phases of the collective bargaining relationship in terms of tort doctrines. Some comparisons are drawn between the approach of the courts and the British Columbia Labour Relations Board to the problems raised during each phase of the collective bargaining relationship. However, the response of the courts to picketing is the primary thrust of the paper; the material relating to the B.C. Board is intended as a useful counterpoint and not as an exhaustive study of decision-making by that particular body.
Judicial adjudication suffers from institutional and doctrinal handicaps, including the doctrine of stare decisis, judicial principles of statutory interpretation, the constraint of the lis and interlocutory proceedings as the primary forum for hearing labour disputes. These draw backs are not duplicated in the administrative tribunal. Because of the historical involvement of the judiciary in industrial disputes, the courts are regarded as partisan by organized labour. The poor quality of judicial workmanship exacerbates this view. Elements of the various torts are frequently implied, assumed or omitted.
The Canadian judiciary may be characterized as interventionist and are deeply involved in labour disputes. In the first phase, establishing the collective bargaining relationship, the courts have seized upon statutory policy prohibiting recognition and organizational strikes to proscribe recognition and organizational strikes and picketing in tort law. In the second phase, negotiating the collective agreement, the judiciary has created artificially a sub?category related to pre-strike procedures. Wherever those procedures are violated, even slightly, the ensuing strike and all supportive activity are labeled unlawful and subject to restraint and civil sanctions.
After compliance with the pre-strike process, the courts ignore statutory policy permitting resort to economic sanctions and use the tort doctrines to continue to regulate labour relations during timely strikes. During the third phase, the currency of the collective agreement, the judiciary enforces the statutory no?strike policy with common law and equitable relief. Thus, the tort doctrines depend for their vitality on legislative policy, except during the timely strike, when that policy is defied. The courts have maintained a concurrent jurisdiction to deal with industrial relations and have not generally deferred to the statutory vehicles for resolving labour disputes. In consequence, the development of a coherent strategy for industrial relations has been hindered.
It is suggested that the courts have no mandate for such extensive intervention particularly after labour statutes established administrative tribunals with full remedial powers. As political legitimacy follows political accountability, it is the legislature and not the judiciary which is the appropriate institution for the formulation of an industrial policy. The judicial articulation of norms of industrial behaviour utilizing common law tort doctrines ill-serves the development of an industrial jurisprudence which encourages responsible collective bargaining practices during the various phases of the collective bargaining relationship.