“Lest You Undermine Our Struggle”: Sympathetic Action and the Canadian Charter of Rights and Freedoms

Abstract

In this new era of recognized constitutional labour rights, one aspect of labour relations — sympathetic action — remains, for the most part, judicially unexamined. This article examines the case law to demonstrate that there is a constitutional argument that both the statutory prohibition on sympathetic action, and the hostility to sympathetic action in the common law of contract and tort, infringe on the freedoms in section 2 of the Charter. However, there is no necessary connection between a right to undertake sympathetic action and a right to strike, nor is freedom of association the only Charter right that can protect sympathetic action. Ultimately, an absolute ban on sympathetic action under Canadian labour law violates the Charter and must be removed; and the hostility of the law of tort and the law of contract to sympathetic action also contravenes Charter values.