Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd

The union, representing employees of a courier company, obtained a picket order against Dolphin Delivery Ltd, a company that had contracted with the employer. The union sought to picket Dolphin's premises, but the British Columbia Supreme Court granted an ex parte injunction prohibiting the picketing, based on the common law tort of inducing breach of contract. The union appealed, arguing that the injunction violated the freedom of expression guaranteed by section 2(b) of the Charter. The British Columbia Court of Appeal dismissed the appeal, and the union appealed to the Supreme Court of Canada.

Justice McIntyre, writing for the majority, held that the Charter applies to the common law only when the government is a party to the litigation or when the common law is the basis of governmental action. In this case, the injunction was issued in a private dispute between the union and Dolphin Delivery; the government was not a party, and the common law of torts was not being invoked by the government. Therefore, the Charter did not apply. The Court also held that a court order, such as an injunction, is not 'government action' merely because it is issued by a court; the court is an independent arbiter, not an instrument of government. Justice Wilson dissented, arguing that the Charter should apply to the common law in all cases, as the common law is a product of state power.

The decision established the 'government action' test for Charter application, which has been refined in later cases such as RWDSU v. Saskatchewan (1987) and McKinney v. University of Guelph (1990). The case is often cited for the proposition that the Charter does not govern private conduct, but it does apply to the common law when the government relies on it to justify its actions. The decision has been criticized for leaving private actors free to infringe Charter values, but it remains a fundamental precedent in Canadian constitutional law.

The case is notable for its discussion of the 'Charter's application to the common law' and the distinction between 'government action' and 'private action'. A lesser-known aspect is the Court's treatment of the 'picketing' as a form of expression, which was not in dispute; the issue was solely the applicability of the Charter. The case also involved a 'secondary picketing' scenario, which is a niche area of labour law. The decision has been cited in over 200 subsequent cases, including in the context of defamation and privacy. The case is also one of the few where the Supreme Court has addressed the 'court as government' question, a topic that remains debated in academic circles.

Charter of Rights and Freedoms

The Canadian constitutional document that guarantees fundamental freedoms and rights, subject to reasonable limits.

Common law

Judge-made law developed through court decisions, as opposed to statutes.

Government action

Action taken by the executive, legislative, or administrative branches of government, which is subject to the Charter.

Injunction

A court order requiring a party to do or refrain from doing a specific act.

Secondary picketing

Picketing directed at a party not directly involved in the labour dispute, often to pressure the primary employer.