United Steelworkers of America v. Gaspé Copper Mines Limited, [1970] SCR 362

Supreme Court of Canada

United Steelworkers of America v. Gaspé Copper Mines Limited, [1970] S.C.R. 362

Date: 1970-01-27

United Steelworkers of America (Defendant) Appellant;

and

Gaspé Copper Mines Limited (Plaintiff) Respondent.

1968: November 20, 21, 22, 25, 26, 27; 1970: January 27.

Present: Fauteux, Abbott, Martland, Judson and Hall JJ.

ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC

Labour relations—Damages—Illegal strike—Union officials calling strike while application for certification pending—Damages through loss of production and commission of delicts and criminal offences—Union liable in damages—Labour Relations Act, R.S.Q. 1941, c. 162A, s. 24—Civil Code, art. 1053.

At trial, the plaintiff company, which runs a mining enterprise in Murdochville, was awarded $1,747,645 for damages resulting from an illegal strike, declared on March 10, 1957, and continued until the beginning of October, as well as from the commission, during this strike, of various delicts and criminal offences. On the question of liability, the trial judge found that the calling of the strike in violation of the terms of s. 24 of the Labour Relations Act, R.S.Q. 1941, c. 162A, and its continuation were clearly illegal and delictual; that the strike had been fomented, organized, directed, supported and financed by agents and representatives of the appellant; that the acts of illegal picketing, the blockage of the plant, the acts of violence, dynamiting, sabotage, intimidation, obstruction and violation of the terms of an injunction were delictual or criminal acts which, collectively and apart from the launching and continuation of the strike, had been one of the causes of the total or partial stoppage of production in the plant, and were acts committed with the participation, the approval, express or implicit, encouragement, incitations or with the material and financial backing of the agents and representatives of the top level management of the appellant. On the question of law, the trial judge found that the appellant was liable for all the damages, whether caused by the strike itself or by these delictual or criminal acts. On an appeal limited to the question of liability,—the parties having agreed

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that the amount of damages should be reduced to $1,646,057,—the Court of Appeal affirmed by a majority judgment the findings of the trial judge on the questions of liability and of law. The union appealed to this Court.

Held (Hall J. dissenting in part): The appeal should be dismissed.

Per Fauteux, Abbott, Martland and Judson JJ.: The question in this appeal is limited to deciding whether, as has been determined by the Courts below, the appellant must bear all the damages suffered by the company or whether, in accordance with the dissenting opinion in the Court of Appeal, the company must be held jointly responsible for the launching of the strike and bear part of the prejudice which it incurred. Both the trial Court and the Court of Appeal found that the strike had not resulted from a spontaneous reaction of revolt and decided that the appellant had used the opportunity of the lay-off of Gagné, the president of the appellant’s local, as a pretext to strike, thereby dissimulating and putting into effect a plan devised a long time before to force the company to recognize the local as the certified representative of the workers in the negotiations for a new collective agreement. It was decided that the appellant alone was responsible for the strike. It has not been established that this finding as to the facts is fundamentally erroneous and, therefore, the rule of non‑interference must here be applied. The lay-off of Gagné was a separate and distinct act from the illegal strike declaration and it had no relation with the damages caused by the strike. Nor can it be held that the company had committed an abuse of legal process which caused the decision to strike. This is equally valid with respect to the company’s refusal to enter into negotiations with the union because the proceedings relating to certification were pending. It follows that the respondent company does not have to bear part of the damages it has sustained from the fact of the strike. The Labour Relations Act does not change the general principles which, under the general law, govern civil responsibility in delictual matters and require the person or persons who, as in this case, cause damages to others by their delictual or criminal acts or by the delictual or criminal acts of persons under their control, to indemnify the injured party for the resulting prejudice.

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Per Hall J., dissenting in part: The findings of responsibility made against the appellant union by the Courts below are correct and fully supported by the evidence. There could be no justification in law for the unlawful acts of the appellant. However, the respondent company was also in part responsible for the. strike as it occurred in the circumstances which the evidence discloses. Its unlawful dismissal of Gagné was of itself and independently of the appellant’s unlawful conduct a contributing cause to the inception of the strike. There was clearly a cause and effect relationship as regards the damages from the strike itself, involving loss of production and other related losses from the work stoppage as such, in so far as the unlawful dismissal of Gagné was a contributing cause to the strike, but not as to the damages caused by the illegal acts and sabotage carried on. The Court of Appeal appears to have overlooked this distinction. The respondent company should be held 25 per cent responsible.

APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming a judgment of Lacoursière J. Appeal dismissed, Hall J. dissenting in part.

Edward B. Jolliffe, Q.C., Louis Claude Trudel and Marc J. Somerville, for the defendant, appellant.

Jean Martineau, Q.C., and Gaston Pouliot, Q.C., for the plaintiff, respondent.

The judgment of Fauteux, Abbott, Martland and Judson JJ. was delivered by

FAUTEUX J.—The appellant, United Steelworkers of America, was condemned on December 7, 1964, in a judgment of Mr. Justice Lacoursière of the Superior Court of the Province of Quebec, to pay to the respondent, Gaspé Copper Mines Limited, the sum of $1,747,645.00 with interest thereon from December 31, 1957. This amount was awarded to the respondent for damages resulting from an illegal strike, declared on March 10, 1957, and continued until the beginning of October of the same year, as well as from the commission, during this strike, of various delicts and criminal offences.

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United Steelworkers of America appealed from this judgment, on the question of liability as well as on the quantum of damages. Gaspé Copper Mines cross-appealed on the quantum. Before the hearing of the appeal in the Court of Queen’s Bench, the parties agreed on the quantum of damages suffered by the respondent by reason of the above facts and put this agreement in writing in the following admission:

The parties admit:—

That the computation of damages in the judgment of the Superior Court of December 7, 1964, should be corrected so as to bring the total amount to $1,646,057.00 with interest thereon at the rate of 5% per annum from December 31, 1957, in accordance with the annexed table and notes appended thereto; and that the amount so corrected is an exact assessment of the damages suffered by plaintiff and arising out of the facts mentioned in said judgment so that the assessment of the damages is no longer an issue in this case, the issue of liability in whole or in part for such damages being the only remaining issue.

This admission is made without any admission of liability for such damages on the part of the defendant-appellant and with the express stipulation that on the issue of liability all evidence including that on the quantum shall be available to the parties in support of their respective contentions.

This admission will bind the parties on any further appeal as well as on the present appeal.

The underlining is my own.

The appeal[2], thus limited to the question of liability, was heard by Hyde, Taschereau and Brossard JJ. After a hearing which lasted 19 days—the trial itself had lasted 120 days, 350 witnesses being heard and 800 exhibits filed—judgment was reserved; it was later rendered on March 16, 1967. On the question of the quantum, effect was given to the admission of the parties, and the amount of damages was accordingly reduced to $1,646,057.00. On the question of liability, the findings of the trial judge were, in substance, unanimously affirmed, that is: that

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the calling of the strike on March 10, 1957, and its continuation until the beginning of October of the same year were clearly illegal and delictual; that the strike had been fomented, organized, directed, supported and financed by agents and representatives of the appellant; that the acts of illegal picketing, the blockade of the plant from March 10 to 19, the acts of violence, dynamiting, sabotage, intimidation, obstruction and violation of the terms of an Injunction of the Superior Court were delictual or criminal acts which, collectively and apart from the launching and continuation of the strike, had been one of the causes of the total or partial stoppage of production in the plant of the respondent Company, and were acts committed with the participation, the approval, express or implicit, encouragement, incitations, or with the material and financial backing of the agents and representatives of the top level management of the appellant. On the question of law it was found, as in the Superior Court, that the appellant was liable for all the damages, whether caused by the strike itself or by these delictual or criminal acts. However, on the question of the damages caused specifically by the fact of the strike, Mr. Justice Brossard, speaking for himself, considered that the Company had a share of responsibility as regards the launching of the strike, on March 10, 1957, and that, for that reason, the Company had to bear, in a proportion which he set at 25%, the damages which it had sustained in this respect.

Hence, this appeal of the United Steelworkers of America against the judgment of the Court of Queen’s Bench.

The respondent’s action against the appellant is based on art. 1053 and 1054 of the Civil Code of the Province of Quebec. The classical and basic doctrine here is to the effect that, to uphold such an action, the act which forms the basis of the claim must be illicit, must cause damage to the plaintiff, and be imputable to the defendant. In this case, of course, no one could question for a moment the delictual and prejudicial character of the strike, called in violation of the terms

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of s. 24 of the Labour Relations Act, R.S.Q. 1941, c. 162A, or of the various acts committed during the course of the strike. On this particular point, the Courts below are in agreement. In the aforementioned admission it is recognized that all damages incurred were caused by the whole of the facts, mentioned in the judgment, which includes the fact of the strike and the delictual or criminal acts. Thus, the only matter at issue in this appeal, is the matter of imputability. Even so, the question, to my mind, is limited to deciding whether, as has been determined by the Superior Court and the Court of Appeal, the appellant must bear all the damages suffered by the respondent or whether, in accordance with Mr. Justice Brossard’s opinion, the respondent must be held jointly responsible for the launching of the strike and bear part of the prejudice which it incurred. In other words, we must first decide if, in fact, the respondent Company did by its actions bring about the going on strike, either by instituting proceedings of prohibition or by participating subsequently in the stay of these proceedings, or in proceeding to what has been referred to as the lay-off (mise à pied) of the President of the appellant’s local Union, and in the affirmative whether, in law, the respondent Company must be held jointly liable for the fact that the workers went on strike and therefore bear part of the damages it suffered because of the strike itself.

Let us look briefly at the essential facts and circumstances which form the background to the question defined above.

Organized for that purpose in 1950, the respondent Company runs a mining enterprise in Murdochville, which is located in the Gaspé Peninsula in the Province of Quebec. The respondent was a subsidiary of Noranda Mines Limited, which then held 95 per cent of its capital stock; its Head Office was located in Noranda, Province of Quebec, and it received its instructions from the Noranda office, in Toronto. Toward the end of 1955, the respondent Company employed about 1,000 people, under the collective agreement which was not automatically renewable. This agreement was signed in 1954 between the Company and Local 544 of the International

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Union of Mine Employees, District of Gaspé, and was due to expire on July 15, 1956. In the spring of 1956, this local union, affiliated to the Trades and Labour Congress, had only about 20 members left. Around this time, in April, an agreement was reached in Toronto between the officers of the Congress and those of the appellant. It was decided that Local 544, affiliated with the Congress, would be dissolved and that the appellant would have a clear field to establish its own local in Murdochville. Since the appellant was already the bargaining agent for the Noranda workers, through its Local 4278—whose agreement was to expire in October—it would then be possible, by means of a joint action involving both units, to secure a commanding position in the coming collective bargaining.

Following the above-mentioned agreement, the appellant, without delay, sent three representatives to Murdochville, among them its organizer Roger Bédard, to assist in the creation and organization of its new local. On May 21, 1956, the said local was granted by the appellant its Charter of Affiliation. Local 544 of the Trades and Labour Congress was dissolved and its President, Théo Gagné, became the President of the new one, designated as appellant’s Local 4881. On the following June 1st, the Local presented a petition to the Labour Relations Board for certification as the bargaining representative of the respondent Company’s employees. The Board informed the Company of the receipt of this petition on June 22. On July 3, the Board ordered an enquiry into the representative character of the Union Local, which enquiry, according to the report made to the Board by one of its inspectors, showed that, at an undetermined date in July, out of 920 Company workers who were eligible to join, 739 were “declared” members of the Union. On July 6, the Company’s attorneys wrote to the Board asking for a copy of the Local’s petition, as well as of the resolution and supporting documents. On July 15, the Board granted the request of the Company’s attorneys but refused, (translation) “according to the practice of the Board”, so it said, to supply the names appearing on these documents. On the ground that it was entitled to this information and that the Board’s refusal to give it was equivalent to a denial of a fair hear-

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ing, the Company secured, on August 2, 1956, on the basis of a petition supported by an affidavit and presented ex parte the day before, the issue of a writ of prohibition which ordered the Board and the Local to suspend all proceedings relating to the petition for certification and to appear, on the twentieth day following service of the writ, to answer the demand contained in the petition. The Board and the Union appeared, on August 22 and 23 respectively. On September 10, 1956, the Board opposed a total inscription in law to this writ of prohibition and not until a year later, on September 27, 1957, did Mr. Justice Morin, to whom the inscription had been submitted, render judgment thereon. The inscription in law was allowed and the writ of prohibition refused. At the conclusion of his notes, the learned judge explained the one year delay:

[TRANSLATION] Before concluding the present judgment, the Court wishes to clarify a point.

The inscription in law in issue here was presented to the Court at the end of September, 1956. Counsel for the petitioner and for the respondent asked the Court for permission to enter written pleadings on the inscription in law against the petition of the claimant.

On November 2, 1956, Me Victor Trépanier, counsel for the respondent, the Labour Relations Board of the Province of Quebec, entered his written pleadings. After this, it was agreed between counsel for the respondent, the Labour Relations Board of the Province of Quebec, and Me Gaston Pouliot, counsel for the petitioner, Gaspé Copper Mines Limited, to stay the proceedings until judgment had been rendered in the Court of Appeal in two cases where the question in issue in this case had been submitted to a bench of seven Appeal judges. The Court of Appeal rendered judgment in one of the above-mentioned cases during August, 1957, without deciding, however, the question in issue here. As for the second case heard by a bench of seven judges, the Court of Appeal has not rendered judgment as yet.

Because of certain criticisms, the Court decided not to wait for the judgment of the Court of Appeal in the second case. It required that counsel for the petitioner, Gaspé Copper Mines Limited, enter his written pleadings. This was sent to the Court on September 10, 1957.

The Court wishes to clarify this point because of certain unjust criticisms, so as to show that there

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has been no intentional delay in this whole case, either on the part of the Court or on the part of, counsel for the parties in the present case.

As for counsel of the mise-en-cause (the Union), Me G. Merril Désaulniers, he appeared but did not see fit to enter written pleadings.

The Court of Appeal notes that the local had no part in the agreement to stay the proceedings but that the record shows nothing which would indicate that judicial proceedings were instituted on its behalf to oppose this stay of proceedings, to ask for judgment on the inscription in law or to contest the issue of the writ of prohibition. And yet, until judgment was rendered on the writ of prohibition, the Board could take no action on the Local’s petition for certification and the terms of s. 24 of. the Labour Relations Act strictly forbade the workers of the respondent Company to take any strike action before certification, and before the proceedings of conciliation and arbitration had been exhausted and 14 days had elapsed after the report of the council of arbitration. Eventually other means were used to force the Company to recognize the Union as the workers’ certified representative, these means being the strike and the delicts and criminal acts which ensued. Before referring to the circumstances surrounding the launching of this strike on March 10, 1957, we may mention, to complete this account of the proceedings, even though this has no bearing on the question to decide, that after the time allowed to appeal from the judgment of Mr. Justice Morin had expired, that is on October 24, 1957, the Company entered their objection against the petition for certification, and the said petition was denied by the Board on February 6, 1958, for the reasons which are thus summed up in Mr. Justice Brossard’s notes:

[TRANSLATION] …that since the petition, notwithstanding the stay of proceedings of the Board by order of the Court, the Local having entered into an illegal strike during which many illegal acts were committed, it no longer has that character of good faith required by the Act for certification and, further, it does not enjoy the support of the majority of the Company’s employees.

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Being an obstacle to the recognition of the right to certification which was claimed, and to the implementation of the plan devised for the negotiation of collective agreements in Murdochville and Noranda, these prohibition proceedings were undoubtedly frustrating. The conflict, which eventually led to the strike, began soon, if it had not already begun, and worsened with time, fanned as it was by the incitations and statements of experienced agents of the appellant made to the members of the Union, who had little training in the conduct of union activities. Before the above-noted proceedings were started, Bédard had already pointed out, during a meeting of the Local, that 650,000 workers employed in the American steel mills were on strike even though their living conditions were 20 years ahead of those existing in Quebec and that strikes would remain the way to keep pace with progress. During the August 30 meeting, Bédard read some “comical” quotations from the writ of prohibition and told the workers that “in the face of such effrontery on the part of the Company they were left with their only efficient recourse: the strike”. At the same meeting, Théo Gagné for his part insisted on the necessity of taking a strike vote and it was decided to proceed with it in about ten days. In fact, this was done at the special meeting of September 20. Before the vote was taken Bédard reviewed the events of the three preceding weeks and explained the urgency of such a vote. He announced that the C.I.O. and the C.L.C. had set aside one and a half million dollars in case of conflicts in Murdochville and Noranda and spoke of the negotiations being conducted in Noranda as well as of the promise given by the Noranda Local not to sign a contract until the Murdochville Local had signed its own. The vote was taken: 667 voted for strike action, 12 against and 2 ballots were voided. To prepare for the coming of a strike, the Company began to stock food supplies, beds, etc., in case of a blockade, that is a siege with which the non-striking workers remaining in the plant may have to put up, a siege which was in fact established and maintained from March 10 to 19, to be followed, from March 19 to April 25, by illegal picketing. On September 27, the officers of the Local sent a letter to the Manager of the Com-

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pany informing him that the meeting of September 20 had decided to demand that the Company meet the Local’s Negotiating Committee and that the said Committee would, for these purposes, be ready on three days’ notice. It was added that 95 per cent of the Company’s employees were members in good standing of the Local. On October 1st, the Company answered that, having given full consideration to Local’s request, it had come to the conclusion that it could not meet the Committee to negotiate, because of the proceedings relating to certification which were pending before the Superior Court. On the same day, the Company officially announced a general increase in wages, including particular increases which had been planned already and which had been under consideration since the beginning of September. Brought about without negotiation, these increases were effective immediately and were accepted by all employees.

In early February, 1957, the management of the Company took certain measures to hasten completion of underground construction projects so as to improve production efficiency. The management felt that as soon as the construction was completed, and after the installation of certain heavy equipment, the number of employees could be substantially reduced. In his capacity as a first-class pipe-fitter, Gagné had been engaged in these construction projects for almost two years. During this period, Gagné absented himself, against the orders of his foreman who felt that the work could not be carried on efficiently without him, to attend a convention in Quebec City involving a certain number of trade unions, including the appellant. During this visit he met certain officers of the appellant who offered to make available to the Murdochville Local one or more tents as well as a number of cooking pots which were to be used by the workers manning the picket lines, in the event of a strike. On his return to Murdochville, Gagné produced an inaccurate doctor’s certificate which he gave to the General Manager of the plant, William G. Brissenden, in an attempt to justify his absence. The latter, conscious of the subterfuge, abstained from taking any disciplinary measures to avoid possible trouble with the Union.

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At a meeting held on February 19, Pat Burke, one of the appellant’s regional representatives, made the following statement to the members of the Local, as recorded in the minutes of said meeting:

[TRANSLATION] We must be ready to form our picket lines at any time after March 10. The Company will not improve your condition as long as it is not forced to do so by a strike.

It could be that, in this quotation, one should read “our condition” instead of “your condition”. Around that time, Gagné made certain statements which Pierre Lecrin, one of the workers whose testimony was heard, reports in the following manner:

[TRANSLATION] Q. Please tell the Court what Théo Gagné said to you in January or February of 1957. A. Well he said to me…

Q. Address the Court! A. He said he came back from Quebec and on his return, he said, everything was decided for the strike. He said “it will be done some time between March 10 and April 10, he said, around that time, the date has not been set, but it will be during that month, if the Company does not meet with us before then; and he said that he did not think the Company would meet with us, because of the length of time the situation had lasted. So prepare yourselves, fellows; it will take place around that time”.

Q. And Gagné had just come back from Quebec? A. That is what he told me.

Q. And did he tell you whom he had seen in Quebec? Whom he had met? A. The union authorities. He did not name anybody.

It was noted in the Court of Appeal that, early in February, the possibility of a legal strike at Noranda could be foreseen for March 10, or thereabouts, given the delays provided for by s. 24 of the Labour Relations Act. However, the council of arbitration for Noranda only brought down its report on March 21. The offer made by Noranda Mines Ltd. was accepted and there was no strike.

Three days after Pat Burke had made the above-mentioned statements at the February 19 meeting, Brissenden called Gagné to his office and tried, without any success, to get from him a promise that there would be prior notice of any decision to strike.

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On Wednesday the 6th, or Thursday the 7th of March, the tent (or tents) and cooking pots offered to Gagné in Quebec City were sent from Val d’Or to Noranda and from there re-routed to Bédard’s address in Murdochville, where they arrived during the evening of March 9 or 10, to be used as early as Monday, March 11.

On Friday, March 8, in the morning, Gagné was handed a Termination Notice by his foreman, Dempsey, acting on the orders of Leslie, the machine-shop Manager. This particular document, commonly known as a Blue Slip, is usually given to employees discharged, to those who leave of their own volition, and—often but not always—to those who are posted to another job or another division of the plant. Gagné protested claiming seniority. Dempsey explained to him that, the construction being finished, the men who were no longer required were being laid off and that such was the case for someone of his trade and in his classification and acting under Brissenden’s orders, Dempsey told Gagné to see the management about it. It may be said, incidentally, that besides Gagné, five or six other workers, carpenters or joiners, were laid off the same day. Gagné completed his shift and was relieved at 3 P.M. He then went to see one of the foremen in the mechanical division and handed him the tools belonging to the Company. Having met in the machine-shop a fellow employee, Abraham Arsenault, who was well known to him and who was also a Union officer, Gagné said, according to Arsenault’s testimony:

[TRANSLATION] …that where he was working on laying pipes the construction work was finished, and that he had been advised to report to the office to try to find other employment.

In fact, anticipating that Gagné’s services would no longer be required for the underground construction work, and anxious to see him posted to another part of the plant, Brissenden had discussed the matter, earlier in the week, with Richard Coleman and John Hall, managers of other divisions of the plant, and had instructed Leslie—instructions which Leslie followed—to bring the matter to the attention of George

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McKerrow, another division manager, the whole, as they all testified, in order to find out whether they could find an opening for Gagné in their respective division. Having foreseen the possibility that Gagné would call on the Personnel Manager, Roger Cyr, upon receiving his Blue Slip, Brissenden had called Cyr during the day and had advised him that under no circumstances was he in the case of Gagné to do what is normally required to be done, in the case of a dismissal, but that he was to tell Gagné, if he saw him, that Brissenden wanted to see him. Having left the plant, Gagné eventually reached the Local’s office; there he met some of his fellow workers. It was from there that, late that afternoon or early the same evening, Gagné telephoned Bédard, who was then in Newcastle, New Brunswick, to tell him what had just happened. After this there were a number of telephone conversations between representatives or agents of the appellant: Bédard in Newcastle, Pat Burke in Noranda, another representative in Montreal and certain unidentified persons in Toronto, where the Canadian Head Office of the appellant is located. One of the appellant’s agents in Montreal, Raymond Lapointe, was told to proceed immediately to Murdochville to assist Bédard. However, it was only on Monday, March 11, that Lapointe arrived in Murdochville, to participate thereafter in the management of the strike.

The next morning, on Saturday, March 9, Gagné, as he had been asked to do by Dempsey the day before, went to the plant to see the management, in this case Leslie, Manager of the machine-shop. On his way, Gagné met Brissenden and asked to have a talk with him, but Brissenden, in a hurry and taken up by the visit of a foreign engineer, was unable to see him right away and an appointment was set for Monday, March 11, either in the morning or the afternoon. Gagné went on to meet Leslie who generally repeated what Dempsey had told Gagné the day before, and said that Brissenden wanted to see him. Gagné and Brissenden had just agreed to meet the next Monday. Gagné then went back to the Union’s office. In the afternoon he again went to the plant, this time not to discuss his job

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but to retrieve his work clothes and his own tools. Since Gagné did not have the pass which had always been required of workers coming to the plant’s gate outside of their regular working hours—which was Gagné’s case since he did not work on Saturdays—he was refused entry. He then had to have recourse to the Personnel Manager who came to the gate, had it opened and accompanied Gagné inside the plant.

When he went to the plant on that Saturday afternoon to collect his personal effects and his tools, Gagné knew full well that his lay-off was in no sense final and that his appointment with Brissenden on Monday was precisely to discuss another job for him. This can be inferred even from Gagné’s own testimony, inaccurate in other respects, when he explains why he did not meet Brissenden on Monday, as agreed:

[TRANSLATION] Because, with the way it happened, at first I… I will give the reasons for not going to see Mr. Brissenden. There was the fact that I had been stopped at the gate by the police; now, that business at the Committee, the people gathered there told me, gave me to understand—and I myself understood—that really I had no reason to receive any special treatment; that, actually, it was clear I had been dismissed; Mr. Dempsey would have told me, had I been transferred, and, in fact everything had been listed; eight (8) carpenters were dismissed on that occasion and the eight (8) carpenters had no appointment with Mr. Brissenden, or with anyone else, to return to work; they were laid off for good, and Mr. Lebel also at the Committee meeting especially the Sunday meeting, where I said to them that I was to see Mr. Brissenden on Monday morning, they said to me, they said: “Théo, forget it; that’s just talk; he will perhaps offer you a job as a foreman, or something”—as had already been offered me, a job as foreman. Mr. Dempsey had already offered me a job as a foreman in the autumn of 1956, and I thought he was offering me that job just because I was President of the Union; I did not decline; but I did not accept, either.

Subsequent to this decision to go to the plant to retrieve his personal effects and his tools, the incident at the gate, which occurred because

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Gagné did not have the required pass to enter the plant on Saturday, obviously cannot validly be given as the reason for this decision. The trial judge did not believe Gagné at all, nor, incidentally, did he believe the other main representatives or agents of the appellant. Why then did Gagné reach such a decision on that Saturday? Why should he go and retrieve his work clothes and his tools on the Saturday afternoon when, on that very morning, he had gone to the plant to seek some explanation for his lay-off and to see about continued employment? Can it be that between these two visits he had been informed that the appellant had decided, or would very shortly decide to use the occasion of his lay-off as a reason for a strike and to call it for Sunday at midnight, and that therefore there was no cause any more for Gagné to pursue the purpose of his appointment with Brissenden (which he evidently did not keep) and no cause to leave his personal effects at the plant for a speedy return to work? On that same afternoon of Saturday, March 9, along with the news of Gagné’s lay-off which was being circulated since the day before, the story was spread around that an additional 100 or 125 men would be laid off. It could be that this rumor originated from the fact that, as already mentioned, at the beginning of February, the management saw the possibility of a substantial reduction in personnel following the completion of the underground construction and the installation of the heavy equipment. However, facts were distorted as to the reason and the expected date of such a reduction in personnel. It was falsely represented that the dismissals would be effective at the beginning or some time during the following week, that 100 or 125 men would then be dismissed and that this group would be mostly made up of the officers and stewards of the Union. The falsity of this rumor was recognized, both in the Superior Court and in the Court of Appeal. Gagné was active in spreading this false rumor, of which he possibly was the main or one of the main instigators. The same afternoon, a meeting of the Union officers was called for the next day, that is Sunday afternoon, and a general meeting of all members was called for Sunday evening.

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Notice of these meetings was given the same evening in the theatres and on Sunday morning at mass.

On Sunday morning, March 10, Gagné went to the Union office and asked Abraham Arsenault to come to the office. Arsenault testified as to what happened at this meeting:

[TRANSLATION] On March 10, I went to mass early and then during the morning, Théo Gagné telephoned me from the office to ask me if I would go up to the office that he had an important matter to speak to me about, and there he told me…

Q. At what time did you go to the office, about what time? A. About 10 o’clock, betwen 10 o’clock and 10:30, during High Mass, and he talked to me about the question of a strike; that he was to go on strike.

Q. How did he put it to you; explain… A. He said, “We are now—Roger Bédard is in communication with Pittsburgh, to get the authority to go on strike.”—Then we discussed the strike for a little while and I asked why he was to strike so soon, because he had always said that it would not be until after Noranda. He said: “Well, it is because I have been dismissed, and you will be to-morrow, and 125 others will follow”. We both discussed various matters regarding the strike and then I said to him: “That’s too bad; I have to be absent, I have to go to Gaspé to take my wife to the hospital”. And then I left.

Q. You left for Gaspé; when you went to mass that morning, did they announce a meeting for the evening? Do you remember… A. No, not from memory.

Q. When did you learn that there would be a meeting Sunday evening? A. It was when Théo told me about it in the morning.

Q. Did Théo Gagné tell you that he knew that there would be a strike declared that evening? A. Yes; he said to me: “We are to declare a strike tonight, but we are still waiting for approval from Pittsburgh”.

Q. But did he tell you who knew about that in Murdochville? A. He said nobody knew; and then, he told me not to talk to anyone about it, because he did not wish to have it known before the meeting that evening.

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Q. Then you left for Gaspé to take your wife to the hospital? A. Yes.

The appellant’s Head Office is in Pittsburgh, in the United States, and it is from that office that the Canadian as well as American Locals which are affiliated with it are directed and financially controlled.

Even before the officers’ meeting was held, a regular afternoon shift crushing crew, numbering about twenty men, failed to show up for work at 3 P.M. In the late afternoon the members of the Committee met and adopted a resolution recommending that a strike be called for the same day, at midnight. One of the stewards, Eugène Lapointe, was present at this meeting of the Executive Committee. At the trial, he was called as a witness by the appellant. During cross-examination, he was asked:

[TRANSLATION] But why, at that time, would the Committee have decided to hold a strike, when Mr. Gagné had not yet seen Mr. Brissenden and when he was due to see him Monday morning and—according to you—you were confident that Mr. Brissenden would arrange matters?

He then answered:

[TRANSLATION] Well, because there had been a rumor, they came with a rumor that 100 or 125 men would be dismissed just the same; that was when the Committee decided to call a general meeting to go on strike.

Bédard was late at that meeting of the Executive Committee. After being told of the resolution, he agreed to convey it himself to the general meeting of members on Sunday night. Gagné chaired that general meeting. He and Bédard both stated that in view of the dismissal of the Union President, Théo Gagné, and the threats of dismissal which hung over the heads of many of the officers, stewards and members of the Local, the strike had become unavoidable. On these statements by Bédard and Gagné, here is the testimony of some of the witnesses:

Abraham Arsenault

[TRANSLATION] Q. Did you return on that same Sunday to Murdochville? A. Yes; I came back at about supper time, that is around six or seven o’clock.

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Q. And you went to the meeting? A. Yes.

Q. Did you arrive at the beginning, or before it opened? A. Before the speakers addressed the meeting.

Q. I see. Do you remember who was the first speaker that evening? A. Yes. Théo Gagné.

Q. I see. Do you remember what he said? A. He began by telling the boys that the meeting had been called hastily because there was to be a strike that same evening and that the reasons for it were that he had been dismissed, and that I myself would be dismissed and 125 others would follow during the week.

Q. And when they mentioned you, what did he do? What did he ask you to do, when he said that you would be dismissed? A. He asked me to stand up to show the people, the employees, that I was one of the persons who would be dismissed: “You all know Abraham Arsenault…”.

Q. When did Bédard arrive at the meeting? A. He arrived shortly afterward, not very long afterward.

Q. Well, then, did Gagné say anything else regarding Bédard, before Bédard’s arrival? A. He told us that Mr. Bédard was in communication with Pittsburgh that he was awaiting approval from Pittsburgh to go on strike, and then the question of strike aid, which was to be financed by the Head Office of the United Steelworkers of America.

Q. You said that at one point Bédard arrived; what did he do? A. As soon as he arrived, soon afterward, Mr. Gagné asked him to speak, and he told us that he had the approval of the Head Office to declare a strike, that we had to strike immediately, and also that we could rest assured that we would have the full support of the United Steelworkers of America.

Q. Did he mention the Company’s furnaces? A. In his speech he told us that this was the time, that the time had come to go on strike, immediately—before the 11 o’clock shift came in, to prevent its getting in, because the furnaces were full of copper and if the Company did not give way everything there would freeze and that he really couldn’t care less.

Q. In the speech by Bédard was there any question of the obligations that the employees had to meet, the debts they had to pay? And what did Bédard say in that regard? A. There were several questions asked on the subject. Those who had

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automobiles “on finance”, others who had furniture “on finance”, others who occupied Company houses and had to pay rent, still others who had bought houses—everything concerned with financing. There were questions asked, about that; each person had his problem. He told them not to worry—the strikers. He said the finance companies could not come and dispossess them of anything. In Noranda they had been on strike for six or seven months and nobody had lost anything; he assured them that they would lose nothing.

Q. Was he asked any questions about the amount that the strikers would receive each week? A. Yes, several questions were asked in that connection. He told them that everything depended upon the number of dependents.

Q. Did he, however, mention any figures? A. The only figure he mentioned, to my knowledge, was that he had the support of the Head Office for about a million and a half for both: Noranda and Gaspé Copper.

Q. What happened after these explanations by Bédard to the meeting? A. Afterward, someone asked if the strike vote was still good, since it had been taken in the month of September. Others wanted another secret vote taken; then he said there was no use doing that; they had to go on strike that same evening.

Q. And then, what did you do then? What did the audience do after that? A. They got up and started discussing matters among themselves. I got up and asked Mr. Gagné if it would not be a good idea to notify the Company before going on strike, because, according to the limited information I had—I had heard it said that one should notify a company before going on strike. He said that “notifying the company would serve no purpose, that we had to strike immediately”. He always gave me the same answers.

Q. Around what time did that meeting end? A. At about 10 o’clock, or 10:15, because he told us that we had to go to the gates at about 10:20 or 10:30, so that the 11 o’clock shift would not get in.

Normand Boudreau, electrician and member of the Union:

[TRANSLATION] Q. I come now to the Sunday evening meeting, on March 10. You were there, weren’t you? A. Yes.

Q. Please tell the Court what happened, and in as great detail as possible—what you heard the

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speakers say. A. Well, I heard about the meeting; I was at mass on Sunday morning; I went there; Bédard was there. He was a little late.

Q. Do you mean at the meeting or at mass? A. At the meeting.

Q. And then…? A. It was Théo Gagné who was chairman of the meeting; there were discussions regarding Théo Gagné, who had been fired. There was supposed to be a list of 125 persons, all Union members, the principal stewards.

Q. A list of 125 persons? A. …who were to be dismissed.

Q. Who said so? A. Bédard, he said so several times.

Q. At the meeting? A. Yes. And then he said, I remember he said that the only weapon was to go on strike. There was no alternative. And then there were some people in the hall who did not like that; they stood up and said that it was understood that we were supposed to go on strike 24 hours after Noranda. One got up and mentioned that to Bédard. Bédard turned it to ridicule. He said that it did not matter: 24 hours before or after, that makes no difference. He said the strike was for 10 o’clock that evening. He told them to start for the gates of the mine and not to let anyone enter, whether staff or workers—nobody.

Q. Where there other matters in Bédard’s speech that evening? A. …

Q. …regarding the strike? A. There were many things concerning the strike; but I do not remember everything.

Q. Were there references to allowances that the strikers could receive if a strike took place? A. Yes. There was supposed to be a million dollars, from Pittsburgh, I think; and a half million from Toronto. It was for the start, to launch the strike; and every family was to have an allowance. The larger the family, the larger the allowance.

Sylvio Pascualeto, mechanic and member of the Union:

[TRANSLATION] Q. Please tell the Court what you recall regarding that meeting. A. Well, I remember that Mr. Bédard was not there at the very beginning of the meeting. I think that Théo Gagné said a few words; but I do not remember at all what Théo said. However, at that point Mr. Bédard arrived and apologized for his lateness. He apologized, but the blame, I think, was passed on to Raymond Lapointe. He had been waiting for Mr. Lapointe; the weather

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was not too good, and, since he came down in an automobile, he said: “I apologize; please forgive me”. It was he himself who opened the meeting, and then…

Q. What did he say to you? A. His chief point was—he said: “Gentlemen, you know as well as I do that Friday”—the 8th, I think “Théo Gagné was dismissed from Gaspé Copper Mines. But it was not Théo Gagné the pipe-fitter who was dismissed; it was Théo Gagné the President of your Local. So as you see, Gaspé Copper Mines is a heartless company.” He also said: “I think the time has come for action, gentlemen…” How did he say it? “The time has come, this is a crucial hour; so there is only one thing left for us to do—that is to strike”. Thereupon there were a number of questions regarding aid, and Mr. Bédard told us that he had been in contact with the head, that is with Pittsburgh. I do not know—something like that however; and also that we would have the moral and financial support of the C.I.O.

Q. And then…? A. Then there were several questions brought up, if I remember correctly.

Q. Were there any questions regarding the matter of debts that the employees owed at that time and which would fall due during the strike, if a strike took place? A. Yes. He told us… the first thing was “not to worry about any debts, that the International itself would pay the interest for those who had furniture to pay for, or automobiles.” He said everything was decided and not to be afraid; that nobody would be dispossessed and that he himself would make the necessary arrangements for the payment of interest, that is to say, the payment of interest to all those companies; he said not to worry at all. Secondly he said that we would have the Union dues, that they were expecting men from the C.I.O. to remit the Union dues to us.

At the end of the meeting, Bédard organized the picketing. Groups were formed, their leaders were named and they went to the plant’s gates to insure a complete blockade.

Both the Superior Court and the Court of Appeal noted the fact that, during this general meeting, hastily convened to get from a minority attendance of the workers a hasty decision to go immediately on strike that same evening, Bédard

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and Gagné were careful not to mention the temporary character and the true reason of Gagné’s lay-off. They did not mention, either, the fact that Gagné himself had agreed to meet the General Manager of the plant on Monday, precisely to discuss another job in the plant. The two Courts also noted that the employees were misled as to the reason, character and expected date of the progressive reduction in personnel which the management had, in February, considered as possible upon completion of the underground construction and the installation of heavy equipment and that it was represented, rather, that the management had decided to effect massive and immediate dismissals of officers, stewards and members of the Union. Thus, through both silence and misrepresentations it was meant to subtly shape and arouse opinion and ensure that the workers attending the meeting would be led to believe that, by dismissing definitely the President of the Union and making ready to dismiss also the most active Union members, the respondent Company wanted to destroy the appellant’s Union, so that in a reaction of revolt the meeting would approve an immediate strike.

These are, in short, the essential facts and circumstances which the evidence has established in the view of the trial judge, Mr. Justice Lacoursière,—who had lived, so to speak, with this case for more than a year, has heard all the evidence, seen and heard all the witnesses, weighed and appraised their testimony and considered the conflicts, all the time keeping in mind the degree of credibility which he in fact has stated he allowed or refused to the main witnesses of the parties,—and in the view also of the majority in the Court of Appeal.

At the stage of this appeal, the appellant no longer disputes the fact that, once the strike was started, it did direct and finance it and that its representatives were, directly or indirectly, involved in some of the illegal acts which ensued. However, the appellant represents—and in my view the validity of that contention is essential to the appellant’s success in this appeal—that the

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workers present at the general meeting approved strike action that evening in a spontaneous reaction of revolt provoked by Gagné’s lay-off and the threat of imminent and massive dismissals of the more active members of the Local, and not because of the intervention of the appellant or its representatives. This is a question of fact. That particular contention of the appellant was rejected as unfounded, both in the judgment of the Superior Court and in that of the Court of Appeal. The trial judge expresses his views on this point in the following manner:

[TRANSLATION] The fact that Bédard and Gagné were silent at the meeting on the question of the appointment given to Gagné by Brissenden, for Monday morning, can only be explained by the existence of a strike plan already decided upon by the leaders and which had to be approved before the workers realized that the claim of dismissal was at the least exaggerated. Why this haste to call a meeting for that very night, when only a small proportion of the workers could attend, because many were not in Murdochville and would only return the following morning, in time to go to work?

Since Gagné’s dismissal could by itself not have been enough to convince the workers of the necessity of strike action, the accent was shifted to the probable dismissal of 125 workers, to include the Union stewards. As we have found out, there was no truth whatsoever to this rumor.

* * *

One would need to be very naive to believe that the decision to strike was the result of a spontaneous reaction of revolt against the Company and that the defendant (the United Steelworkers of America) unwillingly had to suffer the consequences. The evidence is clearly to the contrary.

In the Court of Appeal, Mr. Justice Taschereau quotes approvingly those excerpts from Mr. Justice Lacoursière’s judgment. In conclusion, he says:

[TRANSLATION] In my mind, only one finding is possible, that is: contrary to what the appellant claims, this strike was not a spontaneous reaction to the dismissal of Théo Gagné, the Union President, but was the outcome of a plan hatched for some time.

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Mr. Justice Hyde states:

After all Gagné was the party directly concerned and if he was prepared to allow a general misunderstanding to spread amongst his fellow workers that was not the fault of the Company. He knew perfectly well that he was slated to meet with the manager on Monday afternoon and the purpose of that meeting. The ostensible reason for the strike as given at the Local meeting on Sunday was a protest against his dismissal yet it was not long before the declared object of its continuation was union recognition and contract (see e.g. Local 4881, Strike Bulletin, March 27th, 1957, Ex. C-189).

The other rallying cry at the Sunday meeting was the false rumour relating to the imminent discharge of an additional 125 men. There was no effort on the part of Bédard or Gagné to verify this with management.

Furthermore, even if the Company had dismissed Gagné in breach of the provisions of the Labour Relations Act for union activity, that would not have been a determining cause having relation to the damages caused by the strike. The illegal act of dismissal, supposing it was such, was separate and distinct from the illegal strike declaration and the illegal acts which followed. It is significant here to note that Gagné did not charge the Company with an offence under the Act or sue in damages for wrongful dismissal, courses which were clearly open to him if the stand taken by Appellant is sustainable.

Both the Trial Court and the Court of Appeal found that the strike had not resulted from a spontaneous reaction of revolt and decided that the appellant had used the opportunity of this lay-off as a pretext to strike, thereby dissimulating and putting into effect a plan devised a long time before to force the respondent Company to recognize the Murdochville Local as the certified representative of the workers in the negotiations for a new collective agreement. In brief, it was decided that the appellant alone was responsible for the strike.

In view of the concurrence of both Courts on this finding as to the facts, and in view of the principle governing the function of an Appeal Court in such a case—this principle is well

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known and it was referred to by the learned counsel for the appellant at the very beginning of the hearing, to indicate that he was conscious of the obstacle he had to surmount for the appeal to succeed—we can intervene only if it appears that this finding is, in the words used in jurisprudence, fondamentally erroneous. In my opinion, it has not been established that such was the case and the rule of non-interference must here be applied.

This finding of both Courts as to what was in fact the real cause of the decision to strike on March 10, disposes, in my opinion, of the other grounds submitted by the appellant or retained by Mr. Justice Brossard to impute to the respondent Company a share of responsibility. However, it is fitting to refer to them briefly.

In his dissenting reasons, remarkable for the careful consideration they give to the problem of labour relations and their legal aspects, the learned judge reaches, like his colleagues, the conclusions that by the acts of its representatives the appellant had “provoked, supported and advised the decision to strike”.

On the other hand, on the question of Gagné’s lay-off, he is of the opinion that this action was contrary to the Labour Relations Act, which provides that until such time as the conditions permitting strike action have been fulfilled, the conditions of employment of employees shall not be changed without their consent and that, “in the circumstances, Gagné’s lay-off was in violation of the contract which existed between him and the Company”. As for the prohibition proceedings instituted by the respondent, the stay of proceedings which the respondent obtained to prevent the Board from acting on the application for certification, in view of the latter’s refusal to supply the information requested and the stay of proceedings on the total inscription in law taken by the Board, following an agreement between the Board and the respondent, Mr. Justice Brossard is of the opinion that these were an abuse of legal process because, even though they were regular the only reason for their institution was to prevent the certification of the appellant’s Local. Finally, on the question of the refusal of

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the respondent to enter into negotiations with the Union, given on October 1, 1956, because of the certification proceedings which were pending in Superior Court, Mr. Justice Brossard states that this constituted a fault and a provocation to the Local to act on the strike vote taken on September 20. On the whole, the learned judge comes to the conclusion that even though the judicial proceedings and the refusal to negotiate did not immediately bring about the strike which had been decided in principle on September 20, 1956, “they nevertheless caused Gagné’s lay-off on March 8, 1957, to become important and to result in the declaration of the strike on March 10, 1957”.

With the greatest respect, I cannot agree with these views.

On the question of Gagné’s lay-off, I am of the opinion that the above quoted excerpt from his own testimony shows that it was in no sense final, the continuation of his employment with the Company being the object of the interview which was to take place on Monday, as agreed with the General Manager. Furthermore, even though Mr. Justice Brossard was of the opinion that Gagné had been dismissed, he nevertheless says that… [TRANSLATION] “there is no evidence which may justify the conclusion that Gagné was dismissed because he was a member and President of Local 4881…”. Assuming that this lay-off was final and was, in violation of the contract between the respondent and Gagné—which both Courts below found was not the case—I would say, like Mr. Justice Hyde, that this act was separate and distinct from the illegal strike declaration, and that though it could give à right of action under the general law or under the Labour Relations Act, it had no relation with the damages caused by the strike.

I cannot hold either that the respondent had committed an abuse of legal process which caused the decision to strike on March 10. Savatier, in his Traité de la responsabilité civile en droit français, vol. 1, p. 83, no. 65 ff., says that all the decisions of the Cour de cassation recog-

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nize that the right to judicial action, that is the right to submit one’s claims to a judge, is a right the exercise of which does not, in principle, give rise to any liability, even if the claims are eventually rejected. Admittedly, this exercise of this right may degenerate into a fault which, if prejudicial, may bring a condemnation for damages when its exercise constitutes an act of bad faith or if it is at the least the result of a gross error equivalent to fraud. But fad faith must be proven as required by the provisions of art. 2202 of the Civil Code:

2202. Good faith is always presumed. He who alleges bad faith must prove it.

That the proceedings in question, particularly the stay of adjudication on the total inscription in law taken by the Board, may have had the effect of impeding the certification of the appellant’s Local, it does not follow that one must conclude that the Board and the respondent were in bad faith when they agreed to the stay of proceedings and that the Court was also in bad faith when it agreed to give effect to their agreement to wait for the judgment of the Court of Appeal in two cases where the same question was in issue. There is nothing in the record, the Court of Appeal noted, to indicate that judicial proceedings were instituted on behalf of the appellant’s Union to oppose this stay of proceedings, to ask for judgment on the inscription in law or to contest the issue of the writ of prohibition. A finding of bad faith would, in my opinion, lead inevitably to question the merits of Mr. Justice Morin’s statement to the effect that “there has been no intentional delay in this whole case, either on the part of the Court or on the part of counsel for the parties in the present case”. These considerations on the proceedings are equally valid, in my view, with respect to the respondent’s refusal, given on October 1, 1956, because the proceedings relating to certification were pending in Superior Court.

Therefore, being of the opinion that it has not been shown that the judgment of the Superior Court and the judgment of the Court of Appeal were fundamentaly erroneous as to the facts, I

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cannot find that the respondent has to bear part of the damages it has sustained from the fact of the strike.

These findings as to the facts justify, in law, the judgment of the Court of Appeal which affirmed that of the Superior Court condemning the appellant to pay the full damages caused to the respondent, because of the strike as well as because of the other delictual or criminal acts which ensued. The fundamental purpose of the Labour Relations Act, as well of the Labour Code which replaced the said Act, is to insure industrial peace. This act does not change the general principles which, under the general law, govern civil responsibility in delictual matters and require the person or persons who, as in this case, cause damages to others by their delictual or criminal acts or by the delictual or criminal acts of persons under their control, to indemnify the injured party for the resulting prejudice. Our law does not and cannot admit, without destroying itself and making way for anarchy, recourse to intimidation, obstruction, sabotage, dynamiting or other acts of violence, in short, recourse to force, as legitimate means to insure recognition of a right which a person may claim, manifestly well founded as the claim may be.

For these reasons, I would dismiss the appeal with costs.

HALL J. (dissenting in part)—I agree with my brother Fauteux that the findings of responsibility made against the appellant by the learned trial judge and concurred in by the judges of the Court of Queen’s Bench[3] are correct and fully supported by the evidence.

However, I am of the view that the respondent was also in part responsible for the strike as it occurred in the circumstances which the evidence discloses, and I agree with the position taken by Brossard J. in the Court of Queen’s Bench insofar as the dismissal of Gagné was a cause of the

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strike and I adopt his able and exhaustive reasons in this regard in the Court below reported [1967] Q.B. 487 at pp. 565 to 568.

In the Court of Queen’s Bench, in that section of his reasons entitled “THE DISMISSAL OF GAGNÉ”, Hyde J. said:

It is obvious, and it should have been obvious to the Company, that such a mishandling of Gagné’s lay off would be resented by his fellow union members, particularly with the strained relations which existed between it and Local 4881. The Company must have known that there had been illegal strikes before this and Brissenden should have taken every precaution to avoid any possibility of a misunderstanding on such a potentially dangerous action as dismissal or lay off of the president of the union.

and in a separate section called “THE DEFENSE OF JUSTIFICATION & PROVOCATION”, he said:

While I have said in discussing the lay-off of Gagné that I felt it had been mishandled, even stupidly, having particular regard to the strained relationship between the Company and Local 4881, I cannot, in view of my conclusion that there was no misunderstanding on Gagné’s part as to his status, categorize this mishandling as a contributory fault, if fault it is. After all Gagné was the party directly concerned and if he was prepared to allow a general misunderstanding to spread amongst his fellow workers that was not the fault of the Company. He knew perfectly well that he was slated to meet with the manager on Monday afternoon and the purpose of that meeting. The ostensible reason for the strike as given at the Local meeting on Sunday was a protest against his dismissal yet it was not long before the declared object of its continuation was union recognition and contract (see e.g. Local 4881, Strike Bulletin, March 27th, 1967—Ex. C‑189).

and finally, in the section headed “CONCLUSIONS” he said:

This whole case is a sad and tragic affair. While I cannot commend Respondent’s handling of its relations with its labour force, I am obliged to lay the whole blame in law upon Appellant. Any fault

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there may have been on the part of Respondent did not justify the unlawful acts to which Appellant was a party and in any event, there was no relation of cause and effect between such fault, if such it is, and the damages suffered by Respondent.

His conclusion that any fault on the part of the respondent did not justify the unlawful acts to which the appellant was a party is one with which I agree fully. There could be no justification in law for the unlawful acts of the appellant. Brossard J. does not suggest that. My view is that the respondent’s unlawful dismissal of Gagné was of itself and independently of appellant’s unlawful conduct a contributing cause to the inception of the strike. There is no doubt that Local 4881 was making preparations for a strike and that the respondent was fully aware of this. It had earlier laid in a stockpile of provisions and provided temporary living quarters for non-striking personnel who would remain within the plant if and when the strike came. It is very probable that a strike would have taken place eventually but not necessarily that weekend or possibly not at all when the Noranda settlement became known, if the respondent had not itself ignited the already explosive situation by its own unlawful dismissal of Gagné and this despite any intention Brissenden may have had of re-employing Gagné on the Monday. The harm was done when Gagné was handed his dismissal notice.

I am unable to agree that there was no relation of cause and effect between the dismissal of Gagné and some of the damages suffered by the respondent. The respondent’s damages arose under two general headings, (1) from the strike itself involving loss of production and other related losses from the work stoppage as such, and (2) from losses caused by the illegal acts and sabotage carried on as found by the learned trial judge. There was clearly a cause and effect relationship as regards the damages under the first heading insofar as the unlawful dismissal of Gagné was a contributing cause to the strike, but not as to the damages caused under the second heading. With respect, Hyde J. appears to have overlooked this distinction in his concluding statement above quoted.

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I would, accordingly, allow the appeal in part by directing that the respondent be held 25 per cent responsible and that the damages as agreed to be reduced accordingly. The appellant is entitled to its costs in this Court.

Appeal dismissed with costs, HALL J. dissenting in part.

Solicitors for the defendant, appellant: Trudel, Beaudry, Gamache & Nadeau, Montreal.

Solicitor for the plaintiff, respondent: G. Pouliot, Montreal.