"Lest you undermine our struggle" : sympathetic action and the Canadian Charter of Rights and Freedoms

Abstract

In this thesis I address the question of sympathetic action - action by one group of workers designed to aid another group of workers in their struggle with an employer, manifested most obviously through refusals by workers to cross a picket line - through the lens of the Canadian Charter of Rights and Freedoms. As the law currently stands in Canada, undertaking sympathetic action collectively is invariably illegal as it is considered an illegal "strike" under Canadian labour legislation. Further, workers who undertake sympathetic action - whether collectively or individually - can be subject to discipline or discharge by their employer. I argue that workers who undertake sympathetic action can have numerous motivations, ranging from economic self-interest to deeply-held political or moral beliefs (the latter manifested through the concept of "solidarity"), and that when those motivations include expressive or conscientious interests, sympathetic action should be entitled to protection by the fundamental freedoms of conscience, expression, and association found in section 2 of the Charter. I further argue that a each of these freedoms represents a different aspect of the inherent dignity and worth of an individual, and that a right to sympathetic action promotes both those freedoms and Charter values. Finally, I argue that a constitutional right to sympathetic action is a free-standing right that can exist even in the absence of a constitutional right to strike.

This thesis reviews the current and historical state of Canadian law (in both the statutory labour relations regimes and in common law) regarding sympathetic action, the potential application of the Charter freedoms of conscience, expression, and association to sympathetic action, and finally options for reform that reduce or eliminate restrictions on sympathetic action and therefore make our labour relations system more in keeping with Charter values.