“Power to the Classroom”: CUPE 3903 and an Owner’s Right to Exclude
The Right to Picket Meets the Remedy of Trespass
As Osgoode Hall law students celebrate a relatively expedient end to their academic year, many of their colleagues at York University still traipse its hallways to recoup study time lost due to the recent labour disruption on campus. The CUPE 3903 strike, while a controversial response to an unfortunate situation, rather fortuitously reinvigorates debate surrounding an owner’s “right to exclude” – that without which property would not be – with respect to universities.
Could the state, in a far-reaching and politically unsupportable gesture, have enforced trespass laws against the picketers? Further, could the York administration, which maintains that its campuses are private property with such signs bearing the slogan “University Regulations in Effect”, have lawfully enforced its own penal sanctions against the picketers?
Many issues are raised in considering these questions. The base principle is that owners have an enforceable right to exclude anyone and everyone, including picketers, from access to and use of their private property. That right is tempered, of course, by the picketers’ Charter freedoms of expression and assembly, in addition to various protections of workers’ rights, laws prohibiting discrimination in allowing access to property, and landlord-tenant regulations governing relationships between the York administration and picketers also residing on campus. With such a complicated interplay of interests arising in contemporary labour disputes, we may benefit by a review of the relevant case law as it may apply to CUPE 3903.
An Uncertain Precedent in Harrison v. Carswell
An early authority on the power of private owners to invoke the remedy of trespass, the Supreme Court’s notorious decision in Harrison v. Carswell,  2 S.C.R. 200 endorsed an owner’s action to exclude Sophie Carswell and other Dominion store employees from a shopping mall despite their being on a lawful strike picket. Dickson J.’s majority found that the mall owner enjoyed sufficient “control and possession” over its common areas despite the general public’s unrestricted invitation to enter the premises, as that invitation may just as easily be withdrawn.
Lingering uncertainly as Harrison does, however, in its quasi-constitutional Bill of Rights, pre-Charter context, Laskin C.J.C.’s unusually strong dissent also bears consideration. He accuses the majority of paying “mechanistic” deference to a misapplied precedent and undermining Carswell’s property interests associated with her right to strike. In doing so, Laskin C.J.C. aptly and prophetically characterizes the shopping mall as a place of assembly resembling public property in function, not unlike a modern day “marketplace” of goods and ideas, from which an owner cannot lawfully exclude peaceful speech.
Revisiting Harrison by way of the Eaton’s Centre
Further muddying the waters are a series of lower court and administrative decisions undercutting Harrison. In 1986’s R. v. Layton, 1986 CarswellOnt 792 the Ontario Provincial Court exonerated Jack Layton, then a Toronto City Councillor (and now Leader of the NDP), from charges of trespass stemming from peaceful, non-disruptive unionization and leafleting practices in the Eaton’s Centre. Scott Prov. J. ruled that the owner of property open to the public must always preserve a “bare minimum” of invitees’ freedom of expression, effectively displacing Harrison.
In 1987 and ironically also involving demonstrations in the Eaton’s Centre, the Ontario Labour Relations Board found that in the absence of sustainable business justification, the shopping mall’s ban on union organizers was an unfair labour practice in R.W.D.S.U. v. T. Eaton Co, 1987 CarswellOnt 950. The decision was eventually codified by Premier Rae in the Ontario Labour Relations Act’s s. 11.1 in 1992, only to be repealed by Premier Harris in 1995. Similar legislation as the OLRA’s s. 11.1 does still stand in Manitoba.
While audacious attempts to advance the common law, Layton was not appealed beyond the provincial level and lacks juridical weight without affirmation by a higher court, and R.W.D.S.U. with its ensuing legislation may only testify, with little practical effect, to the volume of academic and popular criticism levied toward the Harrison decision in the Charter era.
Qualifying “Crossroads” in Committee for the Commonwealth
While Committee for the Commonwealth of Canada v. Canada,  1 S.C.R. 139 concerns freedom of expression on state-owned property, specifically the distribution of political pamphlets in the public part of an airport, L’Heureux-Dubé J.’s controlling reasons bear close scrutiny.
She held that statutory prohibitions of such communication violated s. 2(b) and could not be saved under s. 1 because the airport constituted a “public arena.” In a passage reminiscent of Laskin C.J.C.’s likening of a shopping mall to a “marketplace”, L’Heureux-Dubé J. poetically describes airports (save their secure areas) as “crossroads”, invaluable in their social significance, where large numbers of people choose to congregate, pass through, and free speech cannot be suspended. Qualifying her concept of “public arenas” as places where people can freely leave and where impugned expressions would not put lives at risk, she expressly declines to consider whether this analysis may apply to privately owned property, though university settings certainly meet these requirements. Without certification by the Supreme Court, however, the expressive freedom of CUPE 3903 to demonstrate on campus seems tenuous, and, ironically and unfortunately, to exist at the pleasure of York administration not to restrict it.
Returning to the Classroom
What emerges from the case law is a weak precedent in Harrison still officially binding despite appearing an anachronism, with a Supreme Court well poised to refine its conception of pseudo-public places with respect to an owner’s right to exclude peaceful picketers. In that the labour disruption stretched on for so long, I cannot but hope that swift and lasting resolution is possible without resorting to a protracted court battle. And that is very much despite there being pressing need for clarification of the law.
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