Secondary Picketing in Canada: Thoughts for the Pepsi Generation

Before the Supreme Court of Canada\u27s decision in Retail, Wholesale and Department Store Union, Local 558 v. Pepsi-Cola, the law on secondary picketing was a murky and often inconsistent area of jurisprudence. Yet the Court\u27s attempt to clarify the issue by declaring the per se legality of secondary picketing may have muddied the waters even more. Specifically, the authors argue, the Court\u27s reliance on the U.S. Supreme Court\u27s Tree Fruits decision and the distinction it draws between general and struck product picketing may have made the law even more difficult to apply. The authors contend that such a distinction ignores the economic realities of labour disputes. In an effort to deal with these issues, The U.S. Supreme Court set out an important exception to Tree Fruits in its Safeco decision, stating that any picketing which threatens neutral parties with ruin or substantial loss should be restrained, even it falls within the struck product category. In light of these decisions, American courts have found themselves grappling with the difficulties inherent in quantifying the economic harm of secondary picketing, a challenge Canadian courts may well find themselves facing in the post-Pepsi context. The authors also argue that the distinction between general and struck product picketing is inadequate in dealing with so-called merged products where the struck product is so integrated into the product of the neutral party that it is no longer identifiable to the public at large. Finally, the authors contend that by focusing on the literal content of the picketers\u27 message, instead of its effects, both courts underestimate the powerful psychological or signalling effect picketing creates, which deters consumers, regardless of the picketers\u27 stated target