SECONDARY BOYCOTTS: A FUNCTIONAL ANALYSIS

Abstract

Despite considerable writing on the topic of strikes, picketing and boycotting in Ontario, the author sees at least three factors related to secondary pressure that warrant additional discussion. These are 1) the shift to regarding certain forms of economic and social pressure as legitimate rather than unlawful, which allows for expression in certain contexts rather than absolute prohibition, 2) the lack of any coherent rationale to support this shift in jurisprudence, which has been sporadic, incomplete and often inconsistent and 3) the belief, apparent in cases and news reports generally, that secondary boycotts are becoming more accepted. This article surveys the judicial retreat from prohibition on secondary actions and any deficiencies in these approaches, focusing on the ally doctrine, the common situs doctrine and consumer, publicity and informational picketing. In response to judicial confusion and contradiction, it attempts to articulate a logical approach to analysis of the above issues in relation to secondary picketing, set against and in contrast to recent Ontario decisions.

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