Supreme Court of Canada
Gagnon
et al. v. Foundation Maritime Ltd., [1961] S.C.R. 435
Date:
1961-04-25
E. Gagnon and Others (Defendants) Appellants;
and
Foundation Maritime Limited (Plaintiff) Respondent.
1960: October 17, 18; 1961: April 25.
Present: Kerwin C.J. and Locke, Cartwright, Judson and
Ritchie JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL
DIVISION
Labour—Request of unregistered unions for recognition
refused—Subsequent picketing resulting in work stoppage—Unlawful strike
constituting tortious conspiracy—Labour Relations Act, R.S.N.B. 1952, c. 124,
ss. 22(1), 23.
While the plaintiff company was engaged in the construction of
a wharf at St. John, New Brunswick, under a contract with the Department of
Public Works, certain union organizers, who claimed that they repre-
[Page 436]
sented more than fifty per cent of the employees, asked for
recognition of their unions. The company refused their request on the ground
that the unions had not been certified under the Labour Relations Act. The
subsequent establishment of a picket line brought the entire operation to a
halt, and the work stoppage continued until an interim injunction was obtained
to stop the picketing. At the trial, the plaintiff was awarded damages and an
injunction restraining all picketing. On appeal, the damages were reduced but
the injunction was affirmed. The defendants appealed to this Court.
Held (Judson J. dissenting): The appeal should be
dismissed.
Per Kerwin C.J. and Cartwright and Ritchie JJ.: The
submission that the prohibition with respect to striking contained in s. 22(1)
of the Labour Relations Act only applied to employees on whose behalf an
application for certification was pending before the Board was rejected.
The defendants not only formed a common design to obtain
recognition for their uncertified unions, which would not of itself have been
unlawful, but agreed to achieve this end by organizing a stoppage of work,
which constituted a "strike" within the meaning of the Act on the
part of a group of employees who were prohibited from striking by the terms of
s. 22(1).
It was unnecessary to determine whether or not a breach of s.
22(1) gave rise to a statutory cause of action because when inquiry was
"made of the statute law" it disclosed that the means here employed
by the defendants were prohibited, and this of itself supplied the ingredient
necessary to change a lawful agreement which would not give rise to a cause of
action into a tortious conspiracy, the carrying out of which exposed the
conspirators to an action for damages if any ensued therefrom. Therien v.
International Brotherhood of Teamsters, [1960] S.C.R. 265, referred to.
It was not necessary for the plaintiff to prove that actual
breaches of contract took place in order to sustain the plea of conspiracy
because the evidence supported the allegation that the defendants wrongfully
conspired to procure, cause and induce the employees of the plaintiff to
abstain from work.
Per Locke J.: The action of the defendants in causing
or inducing the employees to cease to work was a tortious act for which they
were liable in damages. It was clear that their actions in setting up the
picket line were carried on in combination for the purpose of causing injury to
the plaintiff by unlawful means.
At the time the picket line was established the plaintiff, by
virtue of its contract, was entitled and was required to enter upon the
premises of the Crown for the purpose of carrying on the work of construction
and to do so, in the circumstances then existing, without interference by the
defendants or anyone else with the entry of its employees upon the premises. In
these circumstances the conduct of the defendants was a private nuisance and,
as damage resulted, actionable. Lumley v. Gye (1853), 2 E. & B. 216;
Quinn v. Leathern, [1901] A.C. 495; Lyons v. Wilkins, [1899] 1
Ch. 255, referred to; Williams v. Aristocratic Restaurants (1947) Ltd., [1951]
S.C.R. 762, distinguished.
Per Judson J., dissenting: The prohibitions of
s. 22 of the Act applied only where an application for certification was
pending, and the only other prohibition against striking was contained in s. 23
which did not touch this case. Therefore there was no breach of the Act which
could turn the conduct here complained of into a tortious conspiracy.
[Page 437]
The conspiracy as found by the Court of Appeal was never
pleaded. It was not open to that Court to base its judgment, of its own mere
motion, on a conspiracy which had never been pleaded and which the defendants
had no opportunity to answer.
The defendants in pursuit of the legal object of union
recognition employed means which were neither criminal nor tortious in
themselves but which, on one reading of the Act, could be held to be prohibited
conduct. This did not make them guilty of the tort of conspiracy. In the law of
civil conspiracy the unlawful means must be found in nominate torts or crimes.
There was no question of doing something lawful by unlawful
means. If the conduct of the defendants was held to be contrary to the
legislation, then the conspiracy was to do something forbidden by the Act. They
should have been prosecuted for this breach, with leave of the Board, or if the
plaintiff wanted damages, its claim was to be founded on a breach of the Act
and no more—not on conspiracy.
APPEAL from a judgment of the Supreme Court of New
Brunswick, Appeal Division, varying a judgment of Ritchie J. as to
damages but affirming injunction granted. Appeal dismissed, Judson J.
dissenting.
I. P. Macklin, for defendants, appellants.
A. B. Gilbert, Q.C., P. M. Laing, Q.C., and T.
L. McGloan, for the plaintiff, respondent.
The judgment of Kerwin C. J. and of Cartwright and Ritchie
JJ. was delivered by
Ritchie J.:—The
evidence in this case discloses that in the early days of July 1958, at a time
when the respondent company was employing some 190 workmen without labour
difficulty, dispute or complaint of any kind, on the construction of a wharf
for the Department of Transport at Saint John, New Brunswick, the three
appellants Gagnon, Black-man and Merloni, accompanied by others, called on the
superintendent on this job, asking that the company recognize certain unions
which they claimed to represent. The superintendent told these men that the
matter was one which would have to be decided by other company officials who would
be in Saint John during the following week, and, accordingly, on July 15 the
same three appellants and some other persons called on the company's
construction manager who describes the interview in the following terms:
Mr. Merloni appeared to be the spokesman for the group. He
asked if we would be prepared to recognize their union and sign an agreement
with them. I asked him if their unions were certified and they were the
[Page 438]
legal bargaining agents and he replied they were not
certified under the New Brunswick laws but had more than fifty per cent of the
men who had signed cards with their groups and would we recognize them on that
basis. I said "No," they should be certified under the law and we
would not recognize them or sign an agreement with them on that basis.… The
discussion I had was with Mr. Merloni. He was the spokesman. When I told him we
would not recognize them or sign an agreement with them, the discussion ended
and they left. When leaving Mr. Merloni said they were willing at this time to
discuss the matter with us but there would come a time when we would have to
bargain with them on their terms.
The superintendent, who was also present at the
meeting, recounts Merloni's parting words as being, "the time will come
when you will recognize us on our basis and there will be no discussion."
On the morning of July 23 (eight days after the meeting) it
became apparent that the means which Gagnon, Black-man and Merloni had decided
to adopt to achieve recognition without certification under the Labour
Relations Act, R.S.N.B. 1952, c. 124, was to bring about a cessation of
work at the company's premises by persuading the other appellants to parade
outside the entrances thereto, carrying placards which read "Engineers,
Teamsters & Labourers on strike against Foundation Maritime Limited".
Although the picketing itself was, in my opinion, peaceful, it would be totally
unrealistic to regard it as an exercise of any right of employees to peacefully
inform other persons that they were on strike. There is no evidence that there
was anything in the nature of a strike in progress before the placards were
paraded and the picket line established. The purpose of the picketing and
parading of placards was not to inform other people that a strike existed but
rather to create a situation which would result in a cessation of work,
constituting a strike within the meaning of the Labour Relations Act, s.
l(p), and thus to achieve recognition for unions which were not prepared to
comply with the provisions of the statute regarding certification.
The result of these activities was that none of the
company's employees (except office workers and supervising staff) crossed the
picket line although there were employees who otherwise would have been willing
to return to work. Work ceased entirely until July 28th, when, after an
interlocutory injunction had been granted to restrain the picketing, some 30
per cent of the men returned to work to be followed by others during the next
seven days.
[Page 439]
The judgment of the learned trial judge which declared the
strike and picketing to have been unlawful, awarded damages in the sum of
$22,712.39 and granted an order restraining the appellants from picketing, was
based on the grounds that the employees had been intimidated by the pickets,
that there had been a tortious interference with the company's contractual
relations with its employees and with the Department of Public Works, and that
any picketing in furtherance of an illegal strike should be restrained.
In affirming the decision of the learned trial judge,
subject to a reduction of the damages to the amount of $12,500, the Appeal
Division of the Supreme Court of New Brunswick based its decision on
the ground that the appellants had brought about a strike in contravention of
the Labour Relations Act and had thus employed unlawful means to achieve
their object so as to make them parties to an actionable conspiracy and liable
for the damages flowing therefrom and subject to restraint by injunction from
repetition of any acts in furtherance of such unlawful means.
In resting his decision on this ground, Bridges J.A.,
speaking on behalf of the Appeal Division, said:
In an action based on conspiracy we do not think it
necessary for the plaintiff to prove that actual breaches of contracts took
place. In the case at bar the plaintiff's employees were induced to abstain
from work, which, in our view, is sufficient.
In our opinion, Gagnon, Blackman, Merloni and the other
defendants who acted as pickets combined in inducing workmen of the plaintiff
to refrain from working. Their object was to obtain recognition of the Unions
without certification, which, in itself, was not unlawful but the means they
used, a strike in violation of the Labour Relations Act, was and they have
therefore no defence to the action. Any act done in furtherance of the unlawful
means should, in our opinion, be restrained. The plaintiff was therefore
entitled to an injunction against picketing in addition to damages.
A conspiracy consists, not merely in the intention of two or
more but in the agreement of two or more, to do an unlawful act or to do a
lawful act by unlawful means. The essence of the crime of conspiracy lies in
the agreement itself which may be punishable, although no action has been taken
pursuant to it, but the tort of conspiracy sounds in damages and is concerned
only with the effect upon others of steps taken to carry out such an agreement.
[Page 440]
It is apparent from the language used by Merloni, coupled
with the stoppage of work for which he, Blackman and Gagnon were primarily
responsible, not only that they had formed a common design to obtain
recognition for their uncertified unions, which would not of itself have been
unlawful, but that they had agreed to achieve this end by organizing and
creating a stoppage of work at the respondent's premises. In carying out this
design, they enlisted the aid of the other appellants who thus became parties
to the agreement. There can be no doubt that the means employed by the
appellants resulted in damages to the respondent, but the question which bears
further examination is whether or not these means were unlawful in such manner
as to taint the whole agreement with the tortious quality necessary to give
rise to liability.
Both the learned trial judge and the Appeal Division were
satisfied that this stoppage of work constituted a strike which was in
contravention of s. 22(1) of the Labour Relations Act and therefore
unlawful, but as there is a wide difference between the parties to this appeal
as to the true meaning to be attached to this subsection, it becomes necessary
to analyze its provisions in the framework of the statute as a whole. Section
22 reads as follows:
22. (1) No employee in a unit shall strike until a
bargaining agent has become entitled on behalf of the unit of employees to
require their employer by notice under this Act to commence collective
bargaining with a view to the conclusion or renewal or revision of a collective
agreement and the provisions of section 20, or as the case may be, have been
complied with.
(2) No employer shall declare or cause a lockout of
employees while an application for certification of a bargaining agent to act
for such employees is pending before the Board.
The conditions under which a bargaining agent may become
entitled to require an employer by notice to commence collective bargaining are
prescribed in s. 11 of the Act which reads as follows:
11. Where the Board has under this Act certified a trade
union as a bargaining agent of employees in a unit and no collective agreement
with their employer binding on or entered into on behalf of employees in the
unit, is in force,
(a.) the bargaining
agent may, on behalf of the employees in the unit, by notice require their
employer to commence collective bargaining; or
[Page 441]
(b) the employer or an
employers' organization representing the employer may, by notice, require the
bargaining agent to commence collective bargaining;
with a view to the conclusion of a collective agreement.
That it is an essential prerequisite to certification
of a bargaining agent that the Board shall have first determined whether or not
the "unit" in respect of which application for certification is made
is "appropriate for collective bargaining" appears from the following
provisions of s. 8(1):
8. (1) Where a trade union makes application for
certification under this Act as bargaining agent for employees in a unit, the
Board shall determine whether the unit in respect of which the application is
made is appropriate for collective bargaining and the Board may before
certification, if it deems it appropriate to do so, include additional
employees in, or exclude employees from, the unit, and shall take such steps as
it deems appropriate to determine the wishes of the employees in the unit as to
the selection of a bargaining agent to act on their behalf.
Some assistance as to the intent of the legislature can also
be derived by reading s. 22(1) in conjunction with s. 20, bearing in mind that
the former section provides inter alia that "No employee in a unit
shall strike until … the provisions of section 20, or as the case may be, have
been complied with." The latter section reads:
20. Where a trade union on behalf of a unit of employees is
entitled by notice under this Act to require their employer to commence
collective bargaining with a view to the conclusion or renewal or revision of a
collective agreement, the trade union shall not take a strike vote or authorize
or participate in the taking of a strike vote of employees in the unit or declare
or authorize a strike of the employees in the unit, and no employee in the unit
shall strike, and the employer shall not declare or cause a lockout of the
employees in the unit, until
(a) the bargaining agent
and the employer, or representatives authorized by them in that behalf, have
bargained collectively and have failed to conclude a collective agreement; and
either
(b) a Conciliation Board
has been appointed to endeavour to bring about agreement between them and seven
days have elapsed from the date on which the report of the Conciliation Board
was received by the Minister; or
(c) either party has
requested the Minister in writing to appoint a Conciliation Board to endeavour
to bring about agreement between them and fifteen days have elapsed since the Minister
received the said request, and
(i) no notice under sub-section
(2) of section 27 has been given by the Minister, or
(ii) the Minister has notified
the party so requesting that he has decided not to appoint a Conciliation
Board.
[Page 442]
The respondent contends that the purpose and effect of s.
22(1) is to prohibit all employees from striking unless and until a bargaining
agent has been certified to act on their behalf and until the collective
bargaining and conciliation procedures established by the Act have failed.
On the other hand, it is argued on behalf of the appellants
that the prohibition is only directed against employees who are members of a
group on behalf of which application for certification has been made to the
Board and that it is only effective during the time when those employees are
waiting for the Board's decision.
In support of this contention it is urged that the words
"no employee in a unit shall strike …" as used in s. 22(1) should be
construed as meaning "no employee in a unit appropriate for collective
bargaining shall strike", and that a unit on whose behalf an application
for certification has been made is to be regarded as a "unit appropriate
for collective bargaining". It is upon this basis that the appellants'
counsel contends that the prohibition does not extend to the strike organized
by them because at the time of the strike no application for certification had
been made on behalf of the employees concerned.
It will accordingly be seen that it is of fundamental importance
to determine the meaning which the legislature intended to be attached to the
word "unit" as it first appears in s. 22(1), and in so doing it is
necessary also to determine the purpose and function of this subsection as a
part of the legislative scheme embodied in the statute.
The word "unit" is defined in s. 1(3) of the Act
as follows:
1. (3) For the purposes of this Act, a "unit"
means a group of employees, and "appropriate for collective
bargaining" with reference to a unit, means a unit that is appropriate for
such purposes whether it be an employer unit, craft unit, technical unit, plant
unit, or any other unit and whether or not the employees therein are employed
by one or more employers.
As the meaning attached to the words "appropriate
for collective bargaining" by s. 1(3) is confined to their use "with
reference to a unit" and as these words are not used at all in s. 22, it
seems to me that the meaning attributed to them in this definition has no
relevance in the context of s. 22(1).
[Page 443]
As has been seen, the opening words of s. 8(1) indicate that
the question of whether or not a group of employees is appropriate for
collective bargaining is a matter for the Board and in this regard the
provisions of s. 55 appear to me to be significant. That section provides:
55. (1) If in any proceeding before the Board a question
arises under this Act as to whether
* *
*
(f) a group of employees
is a unit appropriate for collective bargaining;
* *
*
the Board shall decide the question and its decision shall
be final and conclusive for all the purposes of this Act.
It seems to me, therefore, that when an application is
made to the Board for certification, the "unit" on whose behalf it is
made must be regarded for the purposes of this Act as simply being "a
group of employees" until such time as the Board has determined that it is
"a unit appropriate for collective bargaining". It is true that when
the application is first made, the unit concerned is one which the applicant
trade union is claiming to be "appropriate for collective bargaining"
(see s. 6), but the whole scheme of the collective bargaining sections of the
Act seems to me to contemplate that a "unit" cannot have the status
of one which is "appropriate for collective bargaining" until the
Board has decided the question.
In view of the above, and with the greatest respect for
those who hold a different view, I am of opinion that when the Act is read as a
whole its language gives no support to the contention that the legislature
intended the word "unit" as first used in s. 22(1) to have the
limited meaning of "a unit appropriate for collective bargaining" nor
do I think that, for the purposes of this Act, "a group of employees"
becomes "a unit appropriate for collective bargaining" simply because
a trade union claims that it has that character when making application for
certification under s. 6. I cannot, therefore, agree with the submission made
on behalf of the appellants that the prohibition contained in s. 22(1) only
applies to employees on whose behalf an application for certification is
pending before the Board.
Insofar as this Act is designed to secure a greater measure
of industrial peace to the public by encouraging collective bargaining and
conciliation procedures rather than strikes
[Page 444]
as a method of resolving industrial disputes, the attainment
of its purpose would, it seems to me, be gravely hampered if, as appellants'
counsel contends, the effect of the language used in s. 22(1) is that in the
Province of New Brunswick employees who ignore the Act can strike without
offending against its provisions, and that those on whose behalf a bargaining
agent has been appointed can strike under the circumstances outlined in s. 20
while those and only those whose application for certification is pending
before and being held up by the Board are absolutely prohibited from striking
between the time when the application is made and the time when it is granted
or refused.
A consideration of s. 23 of the Act also appears to me to
weigh heavily against the contention made on behalf of the appellants. This
section reads:
23. A trade union that is not entitled to bargain
collectively under this Act on behalf of a unit of employees shall not declare
or authorize a strike of employees in that unit.
If effect were given to the construction sought to be placed
on s. 22(1) by the appellants' counsel, it would mean, when read in conjunction
with the last-quoted section, that the legislature intended to exercise no
control whatever over strikes by employees who are not members of any trade
union while prohibiting strikes by trade unions which have not been certified
as bargaining agents. That the legislature should have intended this result
seems to me to be inherently unlikely, having regard to the recognition accorded
to trade unions by the other provisions of the Act.
It is further said, however, on behalf of the appellants
that to read s. 22(1) as prohibiting all strikes by employees until a
bargaining agent has been certified on their behalf is to attribute to the
legislature the intention of creating one standard for the employee and another
for the employer because s. 22(2) only prohibits "a lockout" while an
application for certification is pending before the Board and the employer is
left free to declare or cause a lockout at any earlier time, although, of
course, after certification this right is restricted by ss. 20 and 21.
[Page 445]
This objection must be viewed in light of the fact that the
Act provides an elaborate and workable procedure whereby employees may compel
their employer to bargain collectively with them with a view to concluding a
collective agreement as to terms and conditions of employment, whereas no such
right and no such procedure is provided for the employer unless and until a
bargaining agent has been certified at the instigation of his employees.
It must be emphasized that the only statute in question in
this appeal is the Labour Relations Act of New Brunswick, and that this
Court is not here concerned with the statutes existing in other provinces
concerning labour relations which, in many cases, are differently framed and
worded.
The regulation of a system whereby collective bargaining and
conciliation procedures are to be exhausted before resorting to strikes appears
to me to be one of the chief functions which this Labour Relations Act purports
to accomplish, and I am unable to agree that by using the phrase "No
employee in a unit shall strike …" instead of "No employee shall
strike …", the legislature intended s. 22(1) to have the effect of
relieving employees who disregard the Act from any obligation to make use of
those procedures for which such elaborate provision is made elsewhere.
Adopting this view, I have concluded that the appellants
organized, directed and participated in a cessation of work constituting a
"strike" within the meaning of the Act on the part of a group of
employees who were prohibited from striking by the terms of s. 22(1). The
appellants Gagnon, Blackman and Merloni designedly and deliberately adopted
this unlawful means of achieving their object, and for the reasons hereinafter
specified I am of opinion that they, together with those who were persuaded to
join their enterprise, must bear responsibility for any damage which ensued to
the respondent.
Section 40 of the Act provides a penalty for breach of s.
22(1), and although it is true that "No prosecution for an offence under
this Act shall be instituted except with the consent in writing of the
Board" (s. 44(1)) this does not, in my view, alter the fact that s. 22(1)
constitutes a
[Page 446]
mandatory prohibition enforceable by penalty if the Board
deems it appropriate to consent to such method of enforcement.
In the case of Therien v. International Brotherhood of
Teamsters, Mr. Justice Sheppard of the
British Columbia Court of Appeal had occasion to consider whether breaches of
the Labour Relation Act of that province by the defendant constituted
"illegal means" whereby the company there in question was induced to
cease doing business with the plaintiff. In the course of his decision, Mr.
Justice Sheppard said at p. 680:
In relying upon ss. 4 and 6 of the statute the plaintiff is
not to be taken as asserting a statutory cause of action. The plaintiff is here
founding upon a common law cause of action within Hodges v. Webb [1920]
2 Ch. 70 which requires as one of the elements that an illegal means be used or
threatened. To ascertain whether the means was illegal enquiry may be made both
at common law and at statute law.
When the Therien case, reached this
Court, Mr. Justice Locke, speaking on behalf of the majority of the Court, said
at p. 280:
I agree with Sheppard J.A. that in relying upon these
sections of the Act the respondent is asserting, not a statutory cause of
action, but a common law cause of action, and that to ascertain whether the
means employed were illegal inquiry may be made both at common law and of the
statute law.
In light of these observations, it becomes unnecessary to
embark upon the difficult exercise of determining whether or not a breach of s.
22(1) of the Labour Relations Act gives rise to a statutory cause of
action because when inquiry is "made of the statute law" in the
present case it discloses, as has been said, that the means here employed by
the appellants were prohibited, and this of itself supplies the ingredient
necessary to change a lawful agreement which would not give rise to a cause of
action into a tortious conspiracy, the carrying out of which exposes the
conspirators to an action for damages if any ensue therefrom.
[Page 447]
The only plea of conspiracy in this case is contained in
para. 10 of the statement of claim which reads as follows:
10. In the alternative the Defendants wrongfully and
maliciously conspired and combined amongst themselves to procure, cause and
induce the employees of the Plaintiff to break their contracts of employment
with the Plaintiff and to leave its service and to abstain from continuing
therein.
I agree with Bridges J.A. that it is not necessary for the
respondent to prove that actual breaches of contract took place in order to
sustain the plea of conspiracy because the evidence supports the allegation
that the appellants wrongfully conspired to procure, cause and induce the
employees of the respondent to abstain from work. Although the wrongful means
are not specifically alleged in the paragraph pleading conspiracy, all the
ingredients of an unlawful strike are elsewhere alleged and the pleadings are
sufficiently explicit to have made the appellants aware of the fact that the
legality of the means which they employed to obtain recognition was being
placed in issue.
Thomas Onno never entered an appearance, although his name
appears in the notice of appeal to the Appeal Division as one of the
appellants. However, as against him the damages awarded by the Appeal Division
should be substituted for the amount fixed by the judge of first instance.
Onno and Roy Carr did not appeal to this Court, although
named as parties appellant. There should, therefore, be no costs of this appeal
as against them. Save for varying the amount of damages as against Onno, the
appeal should be dismissed with costs.
Locke J.:—This
is an appeal from a judgment of the Appeal Division of the Supreme Court of New
Brunswick which, with a variation as
to the damages to be awarded, affirmed the judgment of Ritchie J. at the trial.
The respondent company was on July 15, 1958, engaged in the construction of a
wharf for the Department of Transport in the Harbour of St. John, employing on
the work some 190 men engaged as labourers, timbermen, carpenters, operating
engineers, riggers and a number of office workers.
Some days previous, one Capone and the appellants Merloni,
Blackman, Gagnon, and two men name Kaiser and Evans, called upon the
superintendent of construction of
[Page 448]
the work, Gerald H. Lilly, asking that the company recognize
certain unions which, they said, they represented. The names of the unions were
not stated at that time. Lilly told them that he had no authority to deal with
the matter but told them that other company officials would be in town on the
following week when they could discuss the matter.,
On July 15 these men came again to the company's office,
together with one Murray Stanton and some other official of the carpenters'
union, and presented the same request to Lilly and J. A. Marshall, the
construction manager of the company. They asked Marshall if the company would
recognize their unions and, according to Lilly, when asked if they were
certified by the Labour Relations Board, they said they were not but that they
would produce cards of fifty per cent of the men if the company "would
recognize them on that basis." According to Marshall, he informed them
that they should be certified under the law and that the company would not
recognize them or sign an agreement with them until that was done. Merloni said
that the time would come when the company would have to recognize them "on
our basis and there will be no discussion", which terminated the
interview.
While there was no issue of any kind between the respondent
and any of its employees as to wages, hours or any similar matters and nothing
to indicate that the employees were not satisfied with the conditions as they
were, on July 23 a picket line was established outside the site of the work
organized and under the direction apparently of the defendants Gagnon, Blackman
and Merloni, exhibiting placards on some of which there appeared the words
"Operators, engineers and labourers on strike against Foundation Maritime
Ltd." These placards were carried from time to time by the defendants
Roach, O'Neill, Morrison, Blackman, Merloni, Michaelson, Onno, Hachey,
Armstrong, Lundman and Grant. When the various employees other than the office
staff came to work they were faced with this picket line and, in the result, did
not enter the premises and the entire operation was brought to a halt, the work
stoppage continuing for five days when an injunction in the present action was
effective to stop further picketing and work was resumed.
[Page 449]
There is no evidence that there was any violence employed by
the pickets Blackman and Merloni who were, apparently, in charge on the morning
of July 23. When Cecil Bellefontaine, a workman employed on a hydraulic jack,
was stopped, he was told by them that "there was a strike on and we could
not go in to work." Bellefontaine said that he did not go through the
picket line saying that "they erupt sometimes." He went back the
following morning in a further attempt to go to work and was again stopped and
said as to this that he was afraid to go through the picket line.
Arthur Neilson, who was working as a mechanic, endeavoured
to go to work on July 23 and was stopped by three pickets who told him that
"the company was on strike." He asked Gagnon what the strike was
about and he said that they were on strike for recognition. Neilson told him
there was no necessity of striking because if they went through the proper
channels they would get recognition. He did not go through the picket line and
explained this by saying:
Judging from the way that the pickets spoke if a man went
through he would be in trouble.
He tried to go to work on the following morning and was
again stopped.
By an order made on July 25, 1958, by Ritchie J. certain of
the defendants who were engaged in the picketing and some persons who are not
now defendants in the action were enjoined from watching, besetting or
picketing the premises until July 30. A second order was made by Ritchie J. on
July 30 naming the present appellants and continued the injunction until the
trial.
It was shown by the evidence of the witness Lilly that on
July 23 Gagnon and Blackman represented themselves as officers of the Operating
Engineers' union and the International Teamsters' union, respectively. The
identity of the union represented by Merloni is not shown.
That the respondent suffered substantial damage from the
work stoppage is not and cannot on the evidence be disputed. The argument for
the appellants, however, is that the evidence does not disclose a cause of
action against the defendants or any of them.
[Page 450]
The Labour Relations Act of New Brunswick, R.S.N.B.
1952, c. 124, provides the means whereby a trade union may. be certified as a
bargaining agent on behalf of employees such as those with whom this case is
concerned. and, on their behalf, negotiate with the employer and enter into a
collective agreement. It was shown at the trial that none of the unions claimed
to have been represented by Capone, Merloni, Blackman and Gagnon had been
certified as bargaining agents for any of the employees concerned. Whether any
of such employees were members of these unions on July 23, 1958, was not shown,
the defendants electing not to give any evidence at the trial.
The word "strike" is defined by s. 1 of the Act to
include:
a cessation of work or refusal to work or to continue to
work by employees in combination or in concert or in accordance with a common
understanding.
and the expression "to strike" is defined to
include:
to cease work, or to refuse to work or to continue to work,
in combination or in concert or in accordance with a common understanding.
Section 1(3) reads in part:
For the purposes of this Act, a "unit" means a
group of employees.
Section 22(1) reads:
No employee in a unit shall strike until a bargaining agent
has become entitled on behalf of the unit of employees to require their
employer by notice under this Act to commence collective bargaining with a view
to the conclusion or renewal or revision of a collective agreement and the
provisions of section 20 (which provides for the appointment of a conciliation
board), or as the case may be, have been complied with.
Section 23 reads:
A trade union that is not entitled to bargain collectively
under this Act on behalf of a unit of employees shall not declare or authorize
a strike of employees in that unit.
Section 39 provides, inter alia, that every trade
union that declares or authorizes a strike contrary to the Act is guilty of an
offence and liable to a penalty, and s. 40 provides, inter alia, that
every person who does anything prohibited by the Act is liable to a fine.
The purpose of this statute and others of the same nature in
Canada is the prevention of strikes and lockouts and the maintenance of
industrial peace. As none of the unions said to be represented had been certified
or, so far as the
[Page 451]
evidence in this case goes, authorized in any manner to act
on behalf of any of the employees, the attitude taken by the officers of the
respondent on July 15 was correct.
It is apparent that Merloni, Gagnon and Blackman had decided
to ignore the provisions of the Act and to endeavour to compel the respondent
to negotiate with their unions by bringing about a stoppage of work. The
remaining defendants were apparently duped by these three into taking part in
bringing about that stoppage.
Ritchie J. was of the opinion that the cessation of work was
a strike and was unlawful as being contrary to the provisions of s. 22(1) of
the Act; that to induce and persuade the employees not to report for work was a
tortious interference with the contractual relations existing between the
plaintiff and its employees; that there was evidence that the employees Neilson
and Bellefontaine were intimidated by the picket line and thus prevented from
reporting for work, and that the picketing itself in support of an illegal
strike was unlawful. He awarded damages in the sum of $22,712.39.
Bridges J.A., who delivered the judgment of the Appeal
Division, agreed that there was a strike within the meaning of the Act. He was
of the opinion that the evidence did not support the charge of intimidation but
considered that there was evidence that the defendants had conspired together
to injure the respondent in its trade or business and, further, that as the
strike itself was unlawful the picketing was unlawful. He, however, considered
that the damages awarded were excessive and they were reduced to $12,500.
There was at the time in question no statute in New
Brunswick such as the Trade-unions Act, R.S.B.C. 1948, c. 342, which was
considered in the decision of this Court in Williams v. Aristocratic
Restaurants (1947) Ltd. In that case the trade union had
been certified as the bargaining authority for the employees of one of the
respondent's five restaurants, but did not represent any of the employees of
the other restaurants which were operated in Vancouver. The conduct complained
of was to have men walk back and forth on the sidewalk in front of each of the
five restaurants,
[Page 452]
bearing a placard to the effect that the employees did not
have an agreement with the union. It was held in this Court, reversing the
judgment of the Court of Appeal, that this conduct was permissible under the
provisions of ss. 3 and 4 of the Trade-unions Act.
In the present case the statement exhibited in the placards
carried by Merloni et al. on the morning of July 23 that there was a
strike was untrue, to the knowledge of all of the defendants who took part in
the picketing. So far as the evidence goes, at the time the picketing commenced
no single employee of the respondent company was a member of any of the unions.
There was no dispute between the company and any of its employees of the kind
commonly known as a trade dispute, nor any difference between them on any
ground that might become the subject of such a dispute. The defendants Merloni,
Gagnon and Blackman, who claimed to represent certain trade unions, were well
aware of this fact, and such of the other defendants as were employees at least
knew that in their own case they had no dispute with their employer and that no
one had been authorized to represent them and that no strike had been called.
While, by paragraph 10 of the statement of claim, the
respondent alleged that the defendants had wrongfully and maliciously conspired
and combined among themselves to induce its employees to break their contracts
of employment and to leave its service and to abstain from continuing therein,
no evidence was given as to any contract of employment other than that of Lilly
who said that the men were required to fill in a standard form used by their
company when they went to work, but he was unable to give any further details.
The evidence, therefore, is insufficient to show whether or not the failure of
the men to report for work on the morning of July 23 was a breach of contract
on their part. The respondent's right to recover, however, does not turn upon
this, in my opinion. It is, however, clear that the respondent expected them to
return to their work on the morning of July 23 and that they intended to do so.
In my opinion, the presence of the picket line did not
excuse the actions of the employees in failing to continue to work on the
morning of July 23 and on the succeeding
[Page 453]
days and I consider that the learned trial judge was
justified, in view of the fact that none of them other than the office workers
did pass the picket line, in drawing the inference that the cessation of work
was done by them in concert or in accordance with a common understanding,
within the meaning of s. l(p) and (q), and was unlawful under the terms of s.
22(1). All of these employees must have known when they reported for work on
that day that the statement that there was a strike on was false and that
Merloni et al. did not represent the employees. I agree with the learned
trial judge and with Bridges J.A. that the action of the defendants in causing
or inducing them to cease to work was a tortious act for which they are liable
in damages. It is clear from the evidence that the purpose of setting up the
picket line was to inflict injury upon the respondent by halting the work for
the purpose of compelling it to contract with the unions which, so far as the
evidence goes, represented no one.
By the statement of claim the respondent alleged, inter
alia, that the defendants wrongfully and maliciously conspired and combined
amongst themselves to procure and induce the employees of the plaintiff to
abstain from continuing in its employment. That the actions of Merloni, Gagnon
and Blackman were carried on in combination for the purpose of causing injury
to the respondent by unlawful means is made clear by the evidence. Neither the
learned trial judge nor Bridges J.A. found that these actions were malicious
but this was not essential. While in Lumley v. Gye, the
head note to the report says that an action lies for maliciously procuring a
breach of contract to give exclusive personal services for a time certain, Lord
Macnaghten in Quinn v. Leathern, said that the real basis of the
finding in that case was not on the ground of malicious intention but on the
ground that a violation of a legal right committed knowingly is a cause of
action. Lord Lindley, speaking of Lumley v. Gye, said at p. 535:
Further, the principle involved in it cannot be confined to
inducements to break contracts of service, nor indeed to inducements to break
any contracts. The principle which underlies the decision reaches all wrongful
acts done intentionally to damage a particular individual and actually damaging
him.
[Page 454]
And at p. 538 he said:
A combination not to work is one thing, and is lawful. A
combination to prevent others from working by annoying them if they do is a
different thing, and is prima facie unlawful.
On July 23, 1958, the respondent, by virtue of its contract,
was entitled and was required to enter upon the premises of the Crown for the
purpose of carrying on the work of construction and to do so, in the
circumstances then existing, without interference by the defendants or anyone
else with the entry of its employees upon the premises.
In these circumstances, it is my opinion that the conduct of
the defendants was a private nuisance and, as damage resulted, actionable.
In Clerk & Lindsell on Torts, 11th ed. at p. 560,
nuisance is defined as:
an act or omission which is an interference with,
disturbance of or annoyance to a person in the exercise of enjoyment of (a) a
right belonging to him as a member of the public, when it is a public nuisance,
or (b) his ownership or occupation of land or of some easement, quasi-easement,
or other right used or enjoyed in connection with land, when it is a private
nuisance.
The respondent, by virtue of its contractual relationship
with the Crown, had an easement in the nature of a right-of-way across the
property of the Crown, in order to carry on its work, and that right was
interfered with.
In Lyons v. Wilkins, the
head note reads:
Per Lindley M.R. and Chitty L.J.: To watch or beset a man's
house, with the view to compel him to do or not to do that which it is lawful
for him not to do or to do, is, unless some reasonable justification for it is
consistent with the evidence, a wrongful act: (1) because it is an offence
within s. 7 of the Conspiracy and Protection of Property Act, 1875; and (2)
because it is a nuisance at common law for which an action on the case would
lie; for such conduct seriously interferes with the ordinary comfort of human
existence and the ordinary enjoyment of the house beset.
Section 7 of the Act referred to is to the same effect as s.
366 of the Criminal Code. There was in s. 7 an exception from the penal
provisions dealing with watching or besetting which read:
Attending at or near the house or place where a person
resides, or works, or carries on business, or happens to be, or the approach to
such house or place, in order merely to obtain or communicate information,
shall not be deemed a watching or besetting within the meaning of this section.
[Page 455]
To the same effect is the exception in s. 366 of the
Code. In Lyons' case it was held upon the facts that the conduct of the
defendants did not fall within the exception.
In Quinn's case at p. 541 Lord Lindley said that:
there are many ways short of violence, or the threat of it,
of compelling persons to act in a way which they do not like. There are
annoyances of all sorts and degrees: picketing is a distinct annoyance, and if
damage results in an actionable nuisance at common law, but if confined merely
to obtaining or communicating information it is rendered lawful by the Act (s.
7).
In the Aristocratic Restaurant case the claim that
the conduct above mentioned was a private nuisance was rejected by the majority
of the court by reason of the provisions of s. 3 of the Trade-unions Act, which
provided, inter alia, that no officer, agent or servant of a trade union
or any other person should be liable in damages for persuading or endeavouring
to persuade by fair or reasonable argument, without unlawful threats,
intimidation or other unlawful acts, any person to refuse to become the
employee or customer of any employer. As there is no such statutory provision in
New Brunswick, the case does not affect the present matter.
While named as parties appellant, the defendants Onno and
Carr did not appeal to this Court and there should, accordingly, be no costs of
this appeal awarded against them. I would direct that as against Onno the
amount of damages awarded by the Appeal Division should be substituted for the
amount fixed by the trial judge.
With the exception above mentioned, I would dismiss this
appeal with costs.
Judson J. (dissenting):—The
first three named appellants are trade union organizers and the others were
employees of the respondent on July 23, 1958. The respondent sued them all for
damages and an injunction against picketing because of a strike which they
began on July 23, 1958, and which lasted for a few days. At the trial, the
respondent obtained judgment for $22,712 in damages and the injunction. On
appeal, the damages were reduced to $12,500
but the injunction was affirmed as having been
[Page 456]
rightly granted, although the need for it had disappeared.
The appellants appeal both against the award of damages and the injunction.
In the summer of 1958 Foundation Maritime Limited was
building a wharf in the city of Saint John under a contract with the Department
of Public Works of Canada. On July 13 the three union organizers met an
official of the company and asked for recognition of their unions, claiming
that they represented more than 50 per cent of the employees. A week later they
made the same request to a higher official of the company. The company refused
their request on the ground that the unions had not been certified as
representing the men under the Labour Relations Act, R.S.N.B. 1952, c.
124. Pickets appeared on July 23 outside both jobs on which the company was
engaged. These pickets carried notices stating "Engineers, Teamsters and
Labourers on strike against Foundation Maritime Limited". The company
obtained an interim injunction against all picketing on July 25, and on July 30
this order was continued until the trial. For 5 days the stoppage of work
appears to have been complete and for an additional 7 days, while the men were
drifting back to work, the company claims that the efficiency of its operation
was reduced. This was the main basis of its claim for damages.
The injunction against picketing was completely prohibitory
and it was based upon the threefold conclusion of the learned trial judge that
there had been intimidation of employees reporting for work, a tortious
interference with contractual relations between the company and its employees
and also between the company and the Department of Public Works, and picketing
in furtherance of a strike which was prohibited by the Labour Relations Act.
The Court of Appeal, after a full review of the evidence, found that the
picketing was peaceful and that there was no basis for a finding of
intimidation. The Court of Appeal also found that there was no plea of
interference with contractual relations with the Department of Public Works and
no evidence that by stopping work the employees broke their contracts of
employment or that they were
[Page 457]
under any legal obligation to work during the days of the
strike. The findings of the Court of Appeal raise three issues in this Court:
(a) Was this strike
prohibited by the Labour Relations Act;
(b) Was the conspiracy as
found by the Court of Appeal the one which was sued on and pleaded;
(c) Was this strike for
union recognition a tortious conspiracy from the mere fact that there was no
compliance with the certification provisions of the Labour Relations Act, and
was picketing in pursuance of such a strike properly enjoinable even though it
was peaceful and was carried on without violence, intimidation or obstruction?
These are the issues raised in the ratio decidendi of
the Court of Appeal which is contained in the following paragraphs:
In an action based on conspiracy we do not think it
necessary for the plaintiff to prove that actual breaches of contracts took
place. In the case at bar the plaintiff's employees were induced to abstain
from work, which in our view, is sufficient.
In our opinion, Gagnon, Blackman, Merloni and the other
defendants who acted as pickets combined in inducing workmen of the plaintiff
to refrain from working. Their object was to obtain recognition of the unions
without certification, which, in itself, was not unlawful but the means they
used, a strike in violation of the Labour Relations Act, was and they have
therefore no defence to the action. Any act done in furtherance of the unlawful
means should, in our opinion, be restrained. The plaintiff was therefore
entitled to an injunction against picketing in addition to damages.
The appellants question the judgment on all three grounds.
On the first, they submit that since there was no collective agreement in
existence, their conduct in this case was not in breach of the Act. This
submission requires an examination of all the sections of the Act relating to
strikes and lockouts and the reading of s. 22(1), which has been taken to be
the applicable section, in the context of the other sections.
Section 20 provides that where a trade union has been
certified there shall be no strike vote, no strike and no lockout until there
has been failure to conclude a collective agreement and conciliation
proceedings have been taken. This section does not apply because no union had
been certified in this case.
Section 21 deals with the case where there is a collective
agreement in force whether entered into before or after the commencement of the
Act. In this situation there are to
[Page 458]
be no strikes or lockouts until certain procedures have been
exhausted. This section does not apply because there was no collective
agreement of any kind in force.
Section 22 I now set out in full:
22(1) No employee in a unit shall strike until a bargaining
agent has become entitled on behalf of the unit of employees to require their
employer by notice under this Act to commence collective bargaining with a view
to the conclusion or renewal or revision of a collective agreement and the
provisions of section 20, or as the case may be, have been complied with.
(2) No employer shall declare or cause a lockout of
employees while an application for certification of a bargaining agent to act
for such employees is pending before the Board.
I take this section to be applicable as a whole to the
case where there is an application for certification pending before the Board.
The second subsection says so expressly in dealing with the right of lockout.
The employer's right is limited only during this period. Outside this period,
unless the case is one within ss. 20 and 21, there is no restriction on the
right of lockout. Under the same conditions, that is outside the stated period,
unless the case is one to which ss. 20 and 21 apply, is the employee's position
made inferior by the first subsection to that of the employer? The company
submits that it is and that s. 22 treats employee and employer on a different
basis. It requires very plain language to reach such an anomalous conclusion.
Far from cogently pointing to this conclusion, it is my opinion that subsection
(1) does equate the positions of employee and employer and that the whole
section applies only when the certification proceedings are pending. The
language of subsection (1) is "No employee in a unit shall strike"
not "No employee shall strike". The company says that there is no
difference between these two expressions and that unit merely means a group of
employees— any group of employees—but the definition (s. 1(3)) continues:
and "appropriate for collective bargaining" with
reference to a unit, means a unit that is appropriate for such purposes whether
it be an employer unit, craft unit, technical unit, plant unit, or any other
unit and whether or not the employees therein are employed by one or more employers.
When does a unit become appropriate for collective
bargaining? Only when the claim is made in an application for certification of
the bargaining agent under s. 6, or the
[Page 459]
Board has made a determination under s. 8 that the unit in
respect of which the application is made is appropriate for collective
bargaining.
I therefore conclude that the prohibitions of s. 22 apply
only where an application for certification is pending and that both employer
and employee are treated by this Act on a footing of equality and that there is
nothing in s. 22(1) or anywhere else in the Act to prohibit an employee who may
be a member of an uncertified union withholding his labour in concert with
others and engaging in peaceful picketing in a case where there is no collective
agreement in effect. If the legislature had intended to prohibit this conduct,
there is a simple way to do it by imposing the prohibition in all cases,
whether or not there is a collective agreement in force and whether or not the
collective agreement was made before or after the coming into force of the Act.
This is not what this legislation has attempted to do.
The only other prohibition against striking imposed by the
Act is contained in s. 23, which reads:
23. A trade union that is not entitled to bargain
collectively under this Act on behalf of a unit of employees shall not declare
or authorize a strike of employees in that unit.
This prohibition is imposed on the trade union. It does
not touch the individual who may be a member of the union. The action in this
case is taken entirely against three individual union organizers and individual
employees. The penalty provisions of the Act against the trade union are in s.
39(3) and (4). The trade union is liable to a fine of $150 for each day that the
strike exists and the officer or representative of the union to a fine not
exceeding $300. The individual employee is dealt with only by s. 40, which
imposes a penalty not exceeding $100 on every person who does anything
prohibited by the Act. All these penalties are subject to the condition that
there is to be no prosecution under the Act except with the consent in writing
of the Board. My conclusion is that s. 23 does not touch this case.
The reasoning of the Court of Appeal, in my respectful
opinion, therefore fails in the first place on an interpretation of the Act.
There was no breach of the Act which could turn the conduct complained of in
this case into a tortious conspiracy.
[Page 460]
In the second place, the conspiracy as found by the Court of
Appeal was never pleaded. Paragraphs 7, 8 and 9 of the statement of claim
complain with some repetition of threats of violence, coercion, procuring
breach of contract between the company and its employees, misleading placards
and the establishment, wrongfully and illegally, of a picket line whereby
workmen were intimidated and prevented from working. Up to this point there is
no plea of conspiracy. This is contained in para. 10 of the statement of claim,
which reads:
10. In the alternative the Defendants wrongfully and
maliciously conspired and combined amongst themselves to procure, cause and
induce the employees of the Plaintiff to break their contracts of employment
with the Plaintiff and to leave its service and to abstain from continuing
therein.
This is the plea of conspiracy in a very bare framework
without any particulars and its basis has been expressly denied by the finding
of the Court of Appeal. There is no other plea of a combination to do any other
act or acts causing damage against which the defendants might have pleaded that
their predominant purpose was to advance their own lawful interests. There was
no plea of the use of unlawful means which might bring liability in a
conspiracy case. The defendants successfully met the only conspiracy charged
against them. If they were to be expected to meet others, they are reasonable
in their assertion that they should know in the pleading what they have to
meet. A finding of a conspiracy based upon a breach of the Act appeared for the
first time in the reasons of the Court of Appeal. Counsel for the appellants
stated without contradiction that the point had never up to that time been
argued. In my respectful opinion, it was not open to the Court of Appeal to
base its judgment, of is own mere motion, on a conspiracy which had never been
pleaded and which the defendants had no opportunity to answer.
The judgment under appeal has wide implications and
involves, in my respectful opinion, an erroneous extension of the law of civil
conspiracy. After the decision in Crofter Hand Woven Harris Tweed Company
Limited v. Veitch, there could, on the facts of
this case, be no liability
[Page 461]
in tort at common law. If this was a strike, its predominant
purpose was for the legitimate promotion of the interests of the persons who
were acting in concert. The Crofter case holds that if the means
employed are neither criminal nor tortious in themselves, the combination is
not unlawful. This judgment makes a strike, which was formerly not actionable,
actionable in conspiracy, solely on the ground of violation of the Labour
Relations Act, when there is no conduct on the part of the participants
which can be labelled as criminal or tortious.
This extension of liability appears to me to be based on a
very insecure foundation. It is not to be found in Williams v. Aristocratic
Restaurants (1947) Ltd. At the trial of that action
there was, among others, a plea of conspiracy based solely upon a breach of the
statute and it failed. The breach alleged was failure to take a strike vote. On
appeal to the Court of Appeal, liability was imposed on this as well as other
grounds. But on appeal to this Court no attempt was made to support the
judgment on the ground of conspiracy in breach of the statute. The ratio of the
judgment in this Court which restored the judgment at trial was that the
picketing did not amount to a criminal offence or to a common law nuisance.
The case of International Brotherhood of Teamsters v.
Therien, does not carry the matter any
further. It was not a conspiracy case. A business agent of a union attempted to
compel Therien who was an independent trucker and an employer of labour, to
join the union. Therien had a business relationship with a construction company
and the union agent, for the purpose of compelling Therien to do his bidding,
threatened to picket the job, with the result that Therien lost his business
relationship and the construction company ceased to do business with him. The
case was therefore one where a union organizer intentionally inflicted harm
upon Therien without justification. His attempt to justify his conduct on the
ground of advancing union interests could not stand because of the prohibition
in the statute against harassing an employer or independent con-
[Page 462]
tractor into union membership. The case is not authority for
the establishment of a statutory breach or a threat to compel a statutory
breach as an independent basis of unlawful means in the law of civil
conspiracy. It is no more than Allen v. Flood over
again with the added element of a statute which prevented a justification of
the conduct complained of.
Further, these union agents made no threat to the Foundation
Company to compel it to do something in violation of the Act. On any reading of
the Act it was open to the company to negotiate a collective agreement without
resort to prior certification proceedings. It is, of course, equally clear that
the company had the right to refuse to do this. These defendants, then, in
pursuit of the legal object of union recognition employed means which were
neither criminal nor tortious in themselves but which, on one reading of the
Act, could be held to be prohibited conduct. I do not think that this makes
them guilty of the tort of conspiracy. I prefer the view that in the law of
civil conspiracy the unlawful means must be found in nominate torts or crimes.
On this point, I adopt the statement in Salmond on Torts, 12th ed., 678, to the
following effect:
It is submitted that when the object of the combination is
legitimate the unlawful means which will give a good ground of action against
persons acting in concert are the same as the unlawful means which will give a
good ground of action against a defendant acting alone.
Could it be said here that the plaintiff has a good cause of
action against any of these defendants as individuals? According to the Court
of Appeal they did not commit any tort apart from conspiracy founded upon a
statutory breach. If there is to be any liability in this case it must be on
the grounds pleaded, namely, the commission of nominate torts or conspiracy
with nominate torts as the unlawful means.
If this is not so any strike in violation of the Act which
by definition means "a cessation of work or refusal to work or to continue
to work by employees in combination or in concert or in accordance with a
common understanding" would be actionable as a conspiracy even in the
extreme case where hourly paid employees did nothing more than
[Page 463]
stay at home. If there is to be liability in damages for the
tort of conspiracy founded solely upon a breach of the Labour Relations Act,
it should, in my respectful opinion, be imposed by the legislature and not
by what I regard as an unwarranted extension of the case law.
So far I have accepted the distinction drawn in the reasons
of the Court of Appeal between the end and the means in the consideration of
the acts of these defendants. What did these individuals do? Acting under the
leadership of the three union organizers, they withdrew their labour,
established a picket line and carried placards. Following this no employees
except supervisory and office staff went to work for some days. If there was a
combination it was to do these acts. If the doing of these acts is held to be
contrary to the legislation, then the conspiracy is to do something forbidden
by the Act. There is no question of doing something lawful by unlawful means. A
more accurate way of stating the problem is whether an agreement to strike,
which is carried out, in the face of a statutory prohibition is actionable as a
conspiracy.
At this point it is reasonable to ask what need there is for
the tort of conspiracy. On the assumptions made there has been a breach of the
Act by people acting in concert. Does it add anything to the liability, if
there is any, by calling the conduct by the name of conspiracy? To give rise to
tortious liability for conspiracy, there must be more than the mere fact of
agreement. There must be some carrying out of the agreement, causing damage.
The agreement in itself does not cause the damage. If the agreement is to
commit a tort and it is carried out or if the agreement is to do something
lawful, but its carrying out involves the commission of a tort, what need is
there in either case for the tort of conspiracy? The defendants in each of
these two situations could always be sued as joint tortfeasors under some other
special heading of tortious liability.
What we have in this case then, if every assumption is made
against the defendants is an agreement to breach the Act which was carried out.
Does this involve any more than a breach of the Act? If this is the basis of
liability the defendants should have been prosecuted for this breach, with
leave of the Board, or if the plaintiff wants damages,
[Page 464]
its claim must be founded on a breach of the Act and no
more—not on conspiracy. Whether such a claim is maintainable in this action, it
is unnecessary to decide. It was not pleaded and not argued. This is a
picketing case in its simplest elements. According to the finding of the Court
of Appeal, threats, coercion, intimidation and procuring breach of contract are
all absent. The problem is therefore reduced to one of breach of statutory
duty.
I would allow the appeal with costs both here and in the
Court of Appeal. The injunction should be dissolved and judgment entered
dismissing the action with costs.
Appeal dismissed with costs, Judson J.
dissenting.
Solicitor for the defendants, appellants: Ian P.
Mackin, St. John.
Solicitors for the plaintiff, respondent: Gilbert,
McGloan & Gillis, St. John.
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