RWDSU v. Dolphin Delivery Ltd.

McIntyre J.‑‑This appeal raises the question of whether secondary picketing by members of a trade union in a labour dispute is a protected activity under s. 2(b) of the Canadian Charter of Rights and Freedoms and, accordingly, not the proper subject of an injunction to restrain it. In reaching the answer, consideration must be given to the application of the Charter to the common law and as well to its application in private litigation.

The respondent, Dolphin Delivery Ltd. ("Dolphin"), is a company engaged in the courier business in Vancouver and the surrounding area. Its employees are represented by a trade union, not the appellant. A collective agreement is in effect between Dolphin and the union representing its employees, which provides in clause 8: "it shall not be a violation of this agreement or cause for discipline or discharge if an employee refuses to cross a picket line which has been established in full compliance with the British Columbia Labour Code". The appellant trade union is the bargaining agent under a federal certification for the employees of Purolator Courier Incorporated ("Purolator"). That company has a principal place of operations in Ontario but, prior to the month of June, 1981 when it locked out its employees in a labour dispute, it had a place of operations in Vancouver. That dispute is as yet unresolved. Prior to the lock‑out, Dolphin did business with Purolator making deliveries within its area for Purolator. Since the lock‑out, Dolphin has done business in a similar manner with another company, known as Supercourier Ltd. ("Supercourier"), which is incorporated in Ontario. There is a connection between Supercourier and Purolator, the exact particulars of which are not clearly established in the evidence, but it appears that Dolphin carries on in roughly the same manner with Supercourier as it had formerly done with Purolator and about twenty per cent of its total volume of business originates with Supercourier. This is about the same percentage of business as was done with Purolator before the lock‑out.

In October of 1982 the appellant applied to the British Columbia Labour Relations Board for a declaration that Dolphin and Supercourier were allies of Purolator in their dispute with the appellant. A declaration to this effect would have rendered lawful the picketing of the place of business of Dolphin under British Columbia legislation. The Board, however, declined to make the declaration sought, on the basis that it had no jurisdiction because the union's collective bargaining relationship with Purolator and any picketing which might be done were governed by the Canada Labour Code, R.S.C. 1970, c. L‑1. In the face of this finding it became common ground between the parties that where the Labour Code of British Columbia, R.S.B.C. 1979, c. 212, does not apply, the legality of picketing falls for determination under the common law because the Canada Labour Code is silent on the question. In November of 1982 the individual appellants, on behalf of the appellant union, advised Dolphin that its place of business in Vancouver would be picketed unless it agreed to cease doing business with Supercourier. An application was made at once for a quia timet injunction to restrain the threatened picketing. No picketing occurred, the application being made before its commencement.

The matter came before Sheppard L.J.S.C. and on November 30 he granted the injunction in these terms:

...that the Defendants and each of them and anyone acting for them or under their instructions, and anyone who has knowledge of such Order, be restrained from picketing or causing to be picketed the Plaintiff's place of business or near 30 West Pender Street, Vancouver, or elsewhere in the Province of British Columbia pending the trial or other disposition of this action.

He declined to find that Purolator and Dolphin were in fact allies, and said:

On the material before me, I cannot agree with Counsel's interpretation of the facts. Clearly, the plaintiff is owned by persons who have no relationship with the persons who own Supercourier or Purolator. On a balance of probabilities and on the material before me, I find that even if Supercourier is a subterfuge set up by Purolator to circumvent the labour dispute, (a hypothesis which I find not to have been proven on the material) the plaintiff had no knowledge of this arrangement.

He then went on to say:

On these facts, it appears to me that one of the leading authorities is the Moffat Communications case (supra) and that what the Union proposes in picketing the plaintiff applicant is secondary picketing for the purpose either of the tort of inducing breach of contract, or of the tort of civil conspiracy in that the predominant purpose of the picketing is to injure the plaintiff rather than the dissemination of information and the protection of the defendant's interest. Accordingly, I find that the plaintiff is entitled to an injunction to restrain the picketing.

The Court of Appeal (Taggart, Hutcheon and Esson JJ.A.) [[1984] 3 W.W.R. 481] dismissed the appeal. The appellant did not seek to dispute the application of the common law by the Chambers judge. It chose to advance its argument under the Charter . The Charter had not been raised before the Chambers judge but was argued in the Court of Appeal, the respondent raising no objection to its introduction at that point. The position advanced by the appellant in the Court of Appeal was that the basis for the granting of the injunction, that is, the common law principles adopted and applied by the Chambers judge, had the effect of infringing the fundamental freedoms of the appellant guaranteed under s. 2 of the Charter , particularly s. 2(b), freedom of expression, and s. 2(d), freedom of association.

Esson J.A., speaking for himself and Taggart J.A., concluded that neither freedom of expression nor freedom of association could be invoked to protect the activity being restrained, and that even if freedom of expression of the appellant were infringed it would constitute a reasonable limitation under s. 1 of the Charter . Hutcheon J.A. was of the opinion that peaceful picketing is a protected form of expression under the Charter . He was of the view, however, that in so far as the purpose of the picketing was to induce a breach of contract, restraint of such picketing might be a reasonable limit under s. 1. He rejected the application of the tort of civil conspiracy in a labour dispute. He agreed with the majority as to the question of freedom of association. He considered that it should be left to the Chambers judge to decide whether the picketing would induce a breach of contract and also whether Dolphin and Purolator were allies. A finding that they were allies would have excluded, in his opinion, operation of s. 1 of the Charter because picketing of an ally would be an exercise of freedom of expression. In the result, because one basis for the injunction had been shown, he agreed that the appeal should be dismissed.

In this Court, the appellants abandoned any appeal on the basis that the injunction infringed its freedom of association under s. 2(d) of the Charter . The appeal was limited to the claim that freedom of expression, secured under s. 2(b) of the Charter , had been infringed and that such an infringement was not a reasonable limit imposed by law under s. 1. The respondent contended that no freedom of expression had been infringed since picketing of the nature contemplated here was not a form of expression and, in the alternative, the injunction would constitute, in any event, a reasonable limit under s. 1.

The task of the Court in dealing with this case is made difficult by the way it developed in the courts below. The application for the injunction was made before any picketing occurred. The evidence was limited to affidavits, and some cross‑examination upon them. Findings of fact on the crucial question of the nature of the apprehended picketing are limited. Ordinarily, the Court would not entertain constitutional questions without a more secure factual basis upon which to rest the argument. Because of the nature of this case, however, the Court has felt obliged to do so. I refer below to the findings of fact and to certain assumptions upon which the Court's judgment will rest.

It was said by Esson J.A. in the Court of Appeal [at p. 499]:

The injunction is directed against secondary picketing, i.e., picketing of the premises and operation of some one who carries on business with the employer but who is a third party to the dispute between the union and employer. The chamber judge considered the question whether the relationship between the plaintiff, Super‑Courier and Purolator was such that the plaintiff should not be considered a third party. He concluded that it was a third party. That conclusion must, for the purposes of this appeal, be accepted.

This finding of fact was contested. Counsel for the appellant contended that no such finding could be inferred from the reasons of the Chambers judge. I am of the view, however, from a perusal of the Chambers judge's reasons earlier quoted, that Esson J.A.'s comment was justified and I would accept as a fact that the respondent was found by the Chambers judge to be a third party to the dispute. In addition, the Chambers judge found that the purpose of the picketing was tortious and that the dominant purpose was to injure the plaintiff rather than the dissemination of information and protection of the defendant's interest.

Hutcheon J.A. in the Court of Appeal also seems to have recognized the difficulty regarding the factual underpinning. He said [at p. 484]:

The interim injunction was granted before any picketing took place. The proper assumptions to be made are that the picketing would be peaceful, that some employees of Dolphin Delivery and other trade union members of customers would not cross the picket line, and that the daily business of Dolphin Delivery would be disrupted to a considerable extent.

These assumptions are reasonable and I adopt them. In summary then, it has been found that the respondent was a third party, that the anticipated picketing would be tortious, that the purpose was to injure the plaintiff. It was assumed that the picketing would be peaceful, that some employees of the respondent and other trade union members of customers would decline to cross the picket lines, and that the business of the respondent would be disrupted to a considerable extent.

The following questions arise:

1. Does the injunction complained of in this case restrict the freedom of expression secured under s. 2(b) of the Canadian Charter of Rights and Freedoms ?

2. Does the Charter apply to the common law?

3. Does the Charter apply in private litigation?

4. If it is found that the injunction does restrict freedom of information, is the limit imposed by the injunction a reasonable limit in accordance with s. 1 of the Charter ?

Freedom of Expression

As has been noted above, the only basis on which the picketing in question was defended by the appellants was under the provisions of s. 2(b) of the Charter which guarantees the freedom of expression as a fundamental freedom. Freedom of expression is not, however, a creature of the Charter . It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

The importance of freedom of expression has been recognized since early times: see John Milton, Areopagitica; A Speech for the Liberty of Unlicenc’d Printing, to the Parliament of England (1644), and as well John Stuart Mill, "On Liberty" in On Liberty and considerations on Representative Government (Oxford 1946), at p. 14:

If all mankind minus one were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.

And, after stating that "All silencing of discussion is an assumption of infallibility", he said, at p. 16:

Yet it is as evident in itself, as any amount of argument can make it, that ages are no more infallible than individuals; every age having held many opinions which subsequent ages have deemed not only false but absurd; and it is as certain that many opinions now general will be rejected by future ages, as it is that many, once general, are rejected by the present.

Nothing in the vast literature on this subject reduces the importance of Mill's words. The principle of freedom of speech and expression has been firmly accepted as a necessary feature of modern democracy. The courts have recognized this fact. For an American example, see the words of Holmes J. in his dissent in Abrams v. United States, 250 U.S. 616 (1919), at p. 630:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition.... But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas‑‑that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

Prior to the adoption of the Charter , freedom of speech and expression had been recognized as an essential feature of Canadian parliamentary democracy. Indeed, this Court may be said to have given it constitutional status. In Boucher v. The King, [1951] S.C.R. 265, Rand J., who formed a part of the majority which narrowed the scope of the crime of sedition, said, at p. 288:

There is no modern authority which holds that the mere effect of tending to create discontent or disaffection among His Majesty's subjects or ill‑will or hostility between groups of them, but not tending to issue in illegal conduct, constitutes the crime, and this for obvious reasons. Freedom in thought and speech and disagreement in ideas and beliefs, on every conceivable subject, are of the essence of our life. The clash of critical discussion on political, social and religious subjects has too deeply become the stuff of daily experience to suggest that mere ill‑will as a product of controversy can strike down the latter with illegality. A superficial examination of the word shows its insufficiency: what is the degree necessary to criminality? Can it ever, as mere subjective condition, be so? Controversial fury is aroused constantly by differences in abstract conceptions; heresy in some fields is again a mortal sin; there can be fanatical puritanism in ideas as well as in mortals; but our compact of free society accepts and absorbs these differences and they are exercised at large within the framework of freedom and order on broader and deeper uniformities as bases of social stability. Similarly in discontent, affection and hostility: as subjective incidents of controversy, they and the ideas which arouse them are part of our living which ultimately serve us in stimulation, in the clarification of thought and, as we believe, in the search for the constitution and truth of things generally.

In Switzman v. Elbling, [1957] S.C.R. 285, where this Court struck down Quebec's padlock law, Rand J. again spoke strongly on this issue. He said, at p. 306:

But public opinion, in order to meet such a responsibility, demands the condition of a virtually unobstructed access to and diffusion of ideas. Parliamentary government postulates a capacity in men, acting freely and under self‑restraints, to govern themselves; and that advance is best served in the degree achieved of individual liberation from subjective as well as objective shackles. Under that government, the freedom of discussion in Canada, as a subject‑matter of legislation, has a unity of interest and significance extending equally to every part of the Dominion. With such dimensions it is ipso facto excluded from head 16 as a local matter.

This constitutional fact is the political expression of the primary condition of social life, thought and its communication by language. Liberty in this is little less vital to man's mind and spirit than breathing is to his physical existence. As such an inherence in the individual it is embodied in his status of citizenship.

In the same case, Abbott J. said, at p. 326:

The right of free expression of opinion and of criticism, upon matters of public policy and public administration, and the right to discuss and debate such matters, whether they be social, economic or political, are essential to the working of a parliamentary democracy such as ours.

He went on to make extensive reference to the words of Duff C.J. in Reference re Alberta Statutes, [1938] S.C.R. 100, at pp. 132‑33, strongly supporting what could almost be described as a constitutional position for the concept of freedom of speech and expression in Canadian law, and then said, at p. 328:

Although it is not necessary, of course, to determine this question for the purposes of the present appeal, the Canadian constitution being declared to be similar in principle to that of the United Kingdom, I am also of opinion that as our constitutional Act now stands, Parliament itself could not abrogate this right of discussion and debate. The power of Parliament to limit it is, in my view, restricted to such powers as may be exercisable under its exclusive legislative jurisdiction with respect to criminal law and to make laws for the peace, order and good government of the nation.

It will be seen at once that Professor Peter W. Hogg, at p. 713 in his text, Constitutional Law of Canada (2nd ed. 1985), is justified in his comment that:

Canadian judges have always placed a high value on freedom of expression as an element of parliamentary democracy and have sought to protect it with the limited tools that were at their disposal before the adoption of the Charter of Rights .

The Charter has now in s. 2(b) declared freedom of expression to be a fundamental freedom and any questions as to its constitutional status have therefore been settled.

The question now arises: Is freedom of expression involved in this case? In seeking an answer to this question, it must be observed at once that in any form of picketing there is involved at least some element of expression. The picketers would be conveying a message which at a very minimum would be classed as persuasion, aimed at deterring customers and prospective customers from doing business with the respondent. The question then arises. Does this expression in the circumstances of this case have Charter protection under the provisions of s. 2(b), and if it does, then does the injunction abridge or infringe such freedom?

The appellants argue strongly that picketing is a form of expression fully entitled to Charter protection and rely on various authorities to support the proposition, including Reference re Alberta Statutes, supra; Switzman v. Elbling, supra; the American cases of Thornhill v. Alabama, 310 U.S. 88 (1940) (per Murphy J., at p. 95); Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), (per Black J., at p. 302), and various other Canadian authorities. They reject the American distinction between the concept of speech and that of conduct made in picketing cases, and they accept the view of Hutcheon J.A. in the Court of Appeal, in adopting the words of Freedman C.J.M. in Channel Seven Television Ltd. v. National Association of Broadcast Employees and Technicians, [1971] 5 W.W.R. 328, that "Peaceful picketing falls within freedom of speech".

The respondent contends for a narrower approach to the concept of freedom of expression. The position is summarized in the respondent's factum:

4. We submit that constitutional protection under section 2(b) should only be given to those forms of expression that warrant such protection. To do otherwise would trivialize freedom of expression generally and lead to a downgrading or dilution of this freedom.

Reliance is placed on the view of the majority in the Court of Appeal that picketing in a labour dispute is more than mere communication of information. It is also a signal to trade unionists not to cross the picket line. The respect accorded to picket lines by trade unionists is such that the result of the picketing would be to damage seriously the operation of the employer, not to communicate any information. Therefore, it is argued, since the picket line was not intended to promote dialogue or discourse (as would be the case where its purpose was the exercise of freedom of expression), it cannot qualify for protection under the Charter .

On the basis of the findings of fact that I have referred to above, it is evident that the purpose of the picketing in this case was to induce a breach of contract between the respondent and Supercourier and thus to exert economic pressure to force it to cease doing business with Supercourier. It is equally evident that, if successful, the picketing would have done serious injury to the respondent. There is nothing remarkable about this, however, because all picketing is designed to bring economic pressure on the person picketed and to cause economic loss for so long as the object of the picketing remains unfulfilled. There is, as I have earlier said, always some element of expression in picketing. The union is making a statement to the general public that it is involved in a dispute, that it is seeking to impose its will on the object of the picketing, and that it solicits the assistance of the public in honouring the picket line. Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence. It would not protect the destruction of property, or assaults, or other clearly unlawful conduct. We need not, however, be concerned with such matters here because the picketing would have been peaceful. I am therefore of the view that the picketing sought to be restrained would have involved the exercise of the right of freedom of expression.

Section 1 of the Charter

It is not necessary, in view of the disposition of this appeal that I propose, to deal with the application of s. 1 of the Charter . It was, however, referred to in the Court of Appeal and I will deal with it here. It will be recalled that the Chambers judge in granting the injunction did so on the basis that the picketing involved the commission of two common law torts, that of civil conspiracy to injure and that of inducing a breach of contract. Hutcheon J.A. in the Court of Appeal said [at pp. 486‑87]:

I think that the two torts must be treated differently. The tort of conspiracy to injure has not received acceptance in this province; s. 5 of the Trade‑unions Act, 1959 (B.C.), c. 90, repealed the doctrine of civil conspiracy where the trade‑union acted in contemplation or furtherance of a labour dispute. It remains in that state today under the Labour Code (s. 89). Section 89 reads:

"89. An act done by 2 or more persons acting by agreement or combination, if done in contemplation or furtherance of a labour dispute, is not actionable unless it would be wrongful without an agreement or combination."

Without attempting to trace the position of the tort of conspiracy in the other provinces, I am satisfied that it warrants this description by Professor Arthurs, "Tort Liability for Strikes in Canada" (1960), 38 Can. Bar Rev. 346, at p. 362.

"The modern tort of conspiracy stands condemned, almost universally, as the vehicle of judicial anti‑unionism. Authors throughout the common‑law world have denounced it as a "weapon...wielded with transparent partisanship to counter the aspirations of the trade union movement."

It should be noted that in British Columbia the common law tort of conspiracy to injure, as employed in labour disputes, has been abolished by statute and it would not be available as a support for an injunction. I am aware that the labour relations of the appellants are governed by the Canada Labour Code. However, since the Canada Labour Code is silent on the question of picketing, the common law applies, in this case the common law of British Columbia from which the tort of conspiracy has been expunged in labour disputes. In my view then the tort of civil conspiracy to injure may not be relied upon to support the injunction, which therefore must find its sole support from the tort of inducing a breach of contract.

The question then is: Can an injunction based on the common law tort of inducing a breach of contract, which has the effect of limiting the Charter right to freedom of expression, be sustained as a reasonable limit imposed by law in the peculiar facts of this case. The question of the application of s. 1 of the Charter has been the subject of comment in this Court in earlier cases, for example, Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; and, more recently, R. v. Oakes, [1986] 1 S.C.R. 103. Ordinarily, some evidence will be necessary to enable the Court to decide whether s. 1 should be applied to preserve a limitation on a right, and the burden of proof will lie upon the party supporting the limitation. Dickson C.J. in the Oakes case, however, at p. 138, remarked concerning the need for evidence:

I should add, however, that there may be cases where certain elements of the s. 1 analysis are obvious or self‑evident.

This, in my view, is such a case in so far as the need for evidence is concerned. The evidence before the Chambers judge, together with the assumptions and findings referred to above, provide a sufficient basis for the consideration of this question.

From the evidence, it may well be said that the concern of the respondent is pressing and substantial. It will suffer economically in the absence of an injunction to restrain picketing. On the other hand, the injunction has imposed a limitation upon a Charter freedom. A balance between the two competing concerns must be found. It may be argued that the concern of the respondent regarding economic loss would not be sufficient to constitute a reasonable limitation on the right of freedom of expression, but there is another basis upon which the respondent's position may be supported. This case involves secondary picketing‑‑picketing of a third party not concerned in the dispute which underlies the picketing. The basis of our system of collective bargaining is the proposition that the parties themselves should, wherever possible, work out their own agreement. Professor Weiler in Reconcilable Differences (Toronto 1980), at pp. 64‑65, states:

The basic assumption of our industrial relations system is the notion of freedom of contract between the union and the employer. There are powerful arguments in favour of that policy of freedom of contract. We are dealing with the terms and conditions under which labour will be purchased by employers and will be provided by employees. The immediate parties know best what are the economic circumstances of their relationship, what are their non‑economic priorities and concerns, what trade‑offs are likely to be most satisfactory to their respective constituencies. General legal standards formulated by government bureaucrats are likely to fit like a procrustean bed across the variety and nuances of individual employment situations.

...

The freedom to agree logically entails the right to disagree, to fail to reach an acceptable compromise. Most of the time good faith negotiation does produce a settlement at the bargaining table, often without a great deal of trouble. But often enough it does not; and of course it is the failures which generate the visible tumult and shouting. And at that point the collective bargaining system diverges sharply from other components in the market economy.

When the parties do exercise the right to disagree, picketing and other forms of industrial conflict are likely to follow. The social cost is great, man‑hours and wages are lost, production and services will be disrupted, and general tensions within the community may be heightened. Such industrial conflict may be tolerated by society but only as an inevitable corollary to the collective bargaining process. It is therefore necessary in the general social interest that picketing be regulated and sometimes limited. It is reasonable to restrain picketing so that the conflict will not escalate beyond the actual parties. While picketing is, no doubt, a legislative weapon to be employed in a labour dispute by the employees against their employer, it should not be permitted to harm others. Weiler, supra, at p. 80, again comments:

...strike action is legal only in order to resolve a dispute with an employer about the negotiation of a new collective agreement. Logically a picket line should be legitimate only on such an occasion. As well the only permissible target of the picket line should be the primary employer‑‑that employer with whom the union is negotiating and whom it is trying to compel to make favourable concessions in order to settle the agreement. Putting it the other way, unions should not be permitted to picket the business of a third party. Such a secondary employer is not involved in the primary dispute, it does not have it within its power to make the concessions that will settle the new contract, and thus it should not be the target of a weapon whose legitimate purpose is to extract such economic concessions.

It should be noted here that in the Province of British Columbia, secondary picketing of the nature involved in this case, save for the picketing of allies of the employer, has been made unlawful by the combined effect of ss. 85(3) and 88 of the British Columbia Labour Code, R.S.B.C. 1979, c. 212, as amended. This statute, of course, does not apply in this case, but it is indicative of the legislative policy, in respect of the regulation of picketing in that Province. It shows that the application of s. 1 of the Charter to sustain the limitation imposed by the common law would be consistent with legislative policy in British Columbia. I would say that the requirement of proportionality is also met, particularly when it is recalled that this is an interim injunction effective only until trial when the issues may be more fully canvassed on fuller evidence. It is my opinion then that a limitation on secondary picketing against a third party, that is, a non‑ally, would be a reasonable limit in the facts of this case. I would therefore conclude that the injunction is "a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society".

Does the Charter apply to the Common Law?

In my view, there can be no doubt that it does apply. Section 52(1) of the Constitution Act, 1982 provides:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

52. (1) La Constitution du Canada est la loi suprême du Canada; elle rend inopérantes les dispositions incompatibles de toute autre règle de droit.

The English text provides that "any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect". If this language is not broad enough to include the common law, it should be observed as well that the French text adds strong support to this conclusion in its employment of the words "elle rend inopérantes les dispositions incompatibles de tout autre règle de droit". (Emphasis added.) To adopt a construction of s. 52(1) which would exclude from Charter application the whole body of the common law which in great part governs the rights and obligations of the individuals in society, would be wholly unrealistic and contrary to the clear language employed in s. 52(1) of the Act.

Does the Charter apply to private litigation?

This question involves consideration of whether or not an individual may found a cause of action or defence against another individual on the basis of a breach of a Charter right. In other words, does the Charter apply to private litigation divorced completely from any connection with Government? This is a subject of controversy in legal circles and the question has not been dealt with in this Court. One view of the matter rests on the proposition that the Charter , like most written constitutions, was set up to regulate the relationship between the individual and the Government. It was intended to restrain government action and to protect the individual. It was not intended in the absence of some governmental action to be applied in private litigation.

Support for this view is found in Peter W. Hogg, supra, at pp. 670‑78, and in an article by Katherine Swinton, "Application of the Canadian Charter of Rights and Freedoms ", in Tarnopolsky and Beaudoin, eds., The Canadian Charter of Rights and Freedoms ‑‑Commentary.

At pages 674‑75 in his text, Professor Hogg says:

The rights guaranteed by the Charter take effect only as restrictions on the power of government over the persons entitled to the rights. The Charter regulates the relations between government and private persons, but it does not regulate the relations between private persons and private persons. Private action is therefore excluded from the application of the Charter . Such actions as an employer restricting an employee's freedom of speech or assembly, a parent restricting the mobility of a child, or a landlord discriminating on the basis of race in his selection of tenants, cannot be breaches of the Charter , because in no case is there any action by the Parliament or government of Canada or by the Legislature or government of a province. In cases where private action results in a restriction of a civil liberty, there may be a remedy for the aggrieved person under a human rights code, under labour law, family law, tort law, contract law or property law, or under some other branch of the law governing relations between private persons; but there will be no breach of the Charter .

In her discussion of this question, Professor Swinton has pointed out that certain sections of the Charter might support the proposition that it could apply in private litigation, but she makes it clear on an overall view of the Charter that its application to private litigation is, in her view, excluded. She has pointed out that the Charter is not designed to be employed in private litigation and by its very nature it is not suited for that purpose. At pages 47‑48, she says: