D was not provided with contact info of employees and sought other ways to reach them. D engaged in union organizing activities in the mall, which P blocked. They were on premises before opening and after closing and did not disrupt foot traffic. P has a general no solicitation policy but some groups are allowed based on how it will affect P's reputation. P is not the employer. The dispute was heard before a Labour Relations Board that ruled in favour of D.
Does a third party have a right to exclude labour from their property when the use of that property is necessary for the enforcement of their statutory labour rights?
No, without compelling business rationale, a third party may not exclude labour from their property where entrance is required for the enforcement of their statutory labour rights.
Trespass Sec. 2(1) If you enter, do an activity or refuse to leave premises without permission of owner you're guilty of an offence.
Sec. 64 Labour Relations Act: Employer cannot interfere in formation or administration of union.
-Sec. 3 requires that employee have reasonable access to union.
--Workplace is often only reasonable place to do this.
---If we treat private property as absolute then the set-up of the mall appears to create a buffer that prevents the exercise of sec. 3 rights.
----Conclusion: Sec. 64 therefore necessarily requires incursion into property rights and a balance must be sought.
-The lack of other means of communication and the lack of business rationale for prevention means property rights have to yield.
Peters and Harrison are distinguished because there was no Labour Relations Board.
-This is backed up by American cases (National Labor Relations Board v Babcock & Wilcox)
Appeal dismissed in favour of the respondent.