Chapter 4: Which Rights for Whom? Right to Exclude: Public/Private Uses of Property
POP Montreal:
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Community based group that finds “postering” (which is not a word by the way, but I gather is a verb of some sort) to be an effective form of communications.
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Fined b/w $400 & $1800
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Municipal by-laws prohibit postering, but fines being thrown out in light of Ramsden v Peterborough.
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What is the ideal solution to permit postering? “Unknown” (Don’t know what they want, but know what they don’t want).
The right to property is not absolute. Under what circumstances are ‘private’ property owners required to open up their property and diminish their right to exclude. When can the state take private property from an individual and under what circumstances? When can individuals or groups demand that they be included in decisions about private property that is not their own? What actions on their part, what interests or what circumstances make their claims compelling and on what basis are they rejected?
1. Right to Exclude: Public Private
“An essential element of individual property is the legal right to exclude others from enjoying it. If the property is private, the right of exclusion may be absolute: if the property is affected with a public interest, the right of exclusion is qualified.” Brandeis in dissent in Ins v. AP
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Private Right
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Public Right
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Harrison v. Carswell
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Owner of the shopping centre is held by Dickson to be allowed to exclude people from the public space of the mall.
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Lamer in dissent says that vistors to the shopping mall are granted a privilege. This privilege can only be taken away for unlawful activity. Picketer was peacefully picketing.
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INS v. AP
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Possibility of exclusion existing but being modified within the public sphere, not being as absolute as it usually is in the private sphere.
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Victoria Park
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Private right has physical limits
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Public right to spectacle that goes beyond physical boundary where exclusion applies is affirmed in this situation.
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Cadillac Fairview v. RWDSU
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Labour rights trump property rights
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Union organizers cannot be excluded from a mall.
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Queen’s University v. CUPE
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If disruptive, union picketing can be excluded from private property.
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Public right to picket is limited by it being disruptive whether it’s on public or private grounds.
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Pop Montreal
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Because it’s disruptive the city can exclude the postering from the public space.
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Postering seems to be, from my point of view more in line with Queen’s than Cadillac: It’s more disruptive, therefore the right of the public is limited.
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2. Right to exclude: State expropriation and Regulation
No society places the whole bundle of property rights in individual hands, for all recognize that individual property rights must give way to society’s collective goals. This is most obviously achieved by taxation. Takings (expropriation) are another example.
Questions to Ask
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Is there property?
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Is there compensation according to a statute?
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Look for what has been taken.
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What did the government get? Does not have to be identity of interest: Could be the same thing, could be different
Think of Brandis dissent from Ins v AP: the possibility of exclusion existing, but not being as absolute as it usually is in the private.
Cadillac Fairview v. RWDSU,ON CoA, 1989, p.218 – Right to Exclude: Property Rights v. Labour Rights
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Facts: Some damn union wants to organize the 3000 employees of the Eaton’s store located completely inside the Eaton’s Center owned by Cadillac Fairview. There are no access doors to Eaton’s located on public streets, so the union organizers solicit the employees as they enter and leave work inside the privately held mall. Cadillac wants to prevent this harassment inside its malls, and advises the union that it is prohibited from entering the mall under threat of violation of Trespass to Property Act. The Union appeals to Ontario Labour relations Board who (shockingly) find that ss. 3 & 64 of the Labour Relations Act(LRA) trump the statutory, case law, and common law Property rights of Cadillac to exclude people from its property. Cadillac appeals to the ON CoA to get this nonsense straightened out once and for all.
Issue: Do union rights trump property rights? [YES] or Does employees’ freedom to join trade unions under s. 3 LRA give unions a higher right to solicit their membership on private property than a property owners right to exclude the unions? [YES]
Maj (J.A. Robins): Labour Relations Act trumps all law on property rights.
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Cadillac’s Position:
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Property rights are absolute and cannot be impaired by the Labour Relations Board (LRB)
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LRB has no jurisdiction to abrogate or interfere with private property rights
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Statutory: s. 2 of Trespass Act makes it an offence to be on private property without permission
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Case law: Peters and Harrison both uphold the right of property owners to exclude unions from their private property
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Common Law: Principle of private property is predicated on absolute notions and right to exclude.
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Labour Relations Board
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LRA s. 3 says “every person is free to join a trade union of his own choice and participate in its lawful activities”.
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LRA decides this right cannot be exercised if they cannot solicit membership inside the private mall.
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They perceive property rights to be in conflict with Labour Rights
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The Conflict b/w property rights and labour rights can be solved by balancing these right with a view to arriving at a fair accommodation b/w interests.
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“Notions of absolutism have no place in the determination of issues arising under a statute designed to further harmonious labour relations and to foster freedom of employees to join a trade union of their choice”
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Dismisses Peters and Harrison as distinguishable on grounds that their decisions to protect statutorily created organizational right did not flow from LRB.
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Somehow the insertion of the LRB in otherwise analogous cases changes the hierarchy of Labour trumping property rights
Ratio: Private Mall owners have no right to exclude union organizers. Unions are permitted to solicit members on private mall property against the wishes of owners. Labour rights trumps Property rights
Comments: There is no way you can find in s. 3 LRA the justification to trump the statutory, case law, and common law rights of property owners! Cf Harrison v Carswell
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Queen’s v. CUPE, 1994, p.224 – Right to Exclude: Unions excluded from picketing on/near private property; analysis to identify private property
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Facts: CUPE unions on strike at Queen’s were blocking access to university buildings and causing the usual disruptions: chanting, honking, burning tires, graffiti. The union activities were located on public and private property and were disruptive to the university particularly during the exam period. Queen’s sought an interlocutory injunction to stop the picketing activates until after the exam period ended.
Issue:
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Does the Court have jurisdiction to hear the case – or does s. 11.1 of LRA give exclusive authority to Board? [YES
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Should an injunction be granted? [YES]
Maj (J. MacLeod): Injunction should be granted as the damage being caused by the union is not one which can be repaired with financial damages.
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Court has jurisdiction b/c s. 11.1 of the LRA applies wrt premises to which the public normally has access. Since the public does not normally have access to Queen’s buildings the Court has jurisdiction over the Labour Relations Board.
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He surveys the words ‘normally’ ‘accessible’ and ‘public’ to conclude that only students, faculty, staff, alumni, and guests have access to Queen’s and therefore it is not public. (CF Cadillac in terms of who can access buildings)
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He relies on evidence that people are routinely removed from the premises by security as further proof of not-public nature of Queen’s
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An Injunction should be granted if:
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Claim is not frivolous and there is a substantial issue to be tried; [YES]
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If not granted irreparable damages will be suffered by Queen’s; [YES]
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Balance of convenience favours granting injunction. [YES]
Ratio: Disruptive union picketing activities can be excluded from both public and private property if their actions are disruptive to Private property.
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Case
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Story
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Issue
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Why?
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Cadillac Fairview v RWDSU
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Union solicits employees of Eaton’s as they enter the store. There are no access doors to Eaton’s from outside.
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Does the mall have the right to exclude the union organizers? No.
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Because the right to join trade unions trumps the mall owner’s property rights. S3 Labour Relations Act sets this out. Somewhat arbitrary. Mall is semi-public property.
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Queen’s CUPE
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Striking employees block access to University buildings during exam period.
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Can Queen’s get a temporary injunction? Yes.
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Here, the union is not seeking to disrupt the public but employees, students, teachers and staff. So the activity seeks to be disruptive to private property so it is not permitted.
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