## Facts

- Dolphin Delivery Ltd. operated a local courier business in British Columbia; its employees were unionized under a union other than RWDSU.
- Purolator Courier Inc. was involved in an unresolved labour dispute after locking out employees represented by RWDSU under federal jurisdiction.
- Before the lockout, Dolphin performed delivery work for Purolator; after the lockout, Dolphin performed similar work for Supercourier Ltd., connected with Purolator, accounting for about 20% of Dolphin’s business.
- RWDSU sought a provincial labour board declaration that Dolphin and Supercourier were “allies” of Purolator, which would have made picketing Dolphin lawful under provincial labour law; the board declined jurisdiction because the relevant labour relations were federally regulated.
- RWDSU threatened to picket Dolphin unless Dolphin stopped doing business with Supercourier.
- Dolphin sought a quia timet interlocutory injunction to prevent secondary picketing; the trial court granted the injunction under common law tort principles (including inducing breach of contract).
- RWDSU argued the injunction infringed freedom of expression (s. 2(b)) and freedom of association (s. 2(d)) under the Canadian Charter of Rights and Freedoms.

## Issues

1. Does the Canadian Charter of Rights and Freedoms apply to the common law?
2. Does the Charter apply in litigation solely between private parties, where the impugned restraint is a court order enforcing common law rights?
3. If the Charter applies, does an injunction restraining secondary picketing violate ss. 2(b) and/or 2(d), and if so, is it justified under s. 1?

## Decision

- The Supreme Court of Canada dismissed the appeal and left the interlocutory injunction in place.
- The Charter applies to the common law only where the common law is the basis for governmental action alleged to infringe Charter rights.
- The Charter does not apply directly to purely private litigation absent governmental action; courts issuing orders between private parties are not, for this purpose, “government.”
- Although picketing is expressive activity and the injunction restricted that expression, Charter review was unavailable on these facts because there was no governmental actor or legislation being challenged.

## Legal Principles

- “Law” for constitutional supremacy purposes includes common law, but Charter obligations under s. 32 are triggered only by legislative or executive government action.
- Judicial enforcement of common law rights in disputes between private parties does not, without more, constitute governmental action subject to direct Charter scrutiny.
- Picketing is generally expressive conduct within the scope of freedom of expression, even when undertaken in a labour context.
- Even when the Charter does not directly apply, courts should develop and interpret the common law in a manner consistent with Charter values.

## Conclusion

The Court held that the Charter’s direct constraints apply to government action and to common law only when it grounds such action; because the injunction arose from private litigation without a governmental actor or statute at issue, the Charter could not be used to invalidate the common law basis for restraining secondary picketing.


Retail, Wholesale & Department Store Union, Loc. 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 (Can.)