Beverage Dispensers & Culinary Workers Union, Local 835 v. Terra Nova Motor Inn Ltd., [1975] 2 SCR 749

Supreme Court of Canada

Beverage Dispensers & Culinary Workers Union, Local 835 v. Terra Nova Motor Inn Ltd., [1975] 2 S.C.R. 749

Date: 1974-10-23

Beverage Dispensers & Culinary Workers Union, Local 835 (Defendant) Appellant;

and

Terra Nova Motor Inn Ltd. (Plaintiff) Respondent.

1974: February 25; 1974: October 23.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Labour relations—Union certified as bargaining agent for employees of one hotel and also for employees of another hotel—Employers bargaining jointly with union representing all employees as single group—Strike vote taken of composite group—Majority in favour of strike—Subsequent vote in favour of acceptance of new proposal—Proposal agreed to by one employer but rejected by other employer—One hotel and union on behalf of employees of that hotel entering collective agreement—Strike action taken against other hotel—Whether strike illegal—Mediation Services Act, 1968 (B.C.), c. 26, s. 25 (1).

The appellant union was the certified bargaining agent for employees at the respondent’s hotel in Trail, and also for employees of another hotel in Trail, known as the Crown Point Hotel. The union agreed to a proposal made on behalf of the two hotels to the effect that the two hotels would bargain jointly with the union on behalf of employees of both hotels as a single group. Subsequently, a collective agreement was entered into by the employees of the two hotels with their respective employers. The agreement commenced April 1, 1971, and expired on March 31, 1973.

Following expiry of this agreement, negotiations for the purpose of concluding a new agreement were carried out by a committee representing both hotels on one side and the union representing the employees of both hotels as one group on the other. These negotiations broke down and on May 13, 1973, the union, in order to comply with s. 25 of the Mediation Services Act, 1968 (B.C.), c. 26, requiring a strike vote, took a secret ballot of the employees of both hotels as one group. A majority of the employees

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voted to strike, and strike notice was sent by the union to both hotels. A mediation officer was then appointed and further negotiations took place. Early in June, the mediation officer submitted a proposal to both sides. On June 10, 1973, the employees of both hotels, voting as one group, agreed to accept the proposal. Crown Point Hotel also agreed to it, but the respondent rejected it. Crown Point Hotel and the union, on behalf of the employees of that hotel, entered into a collective agreement. On July 6, 1973, the union took strike action and commenced picketing the respondent’s premises. Shortly thereafter, the respondent obtained an injunction enjoining the picketing, and, on appeal, the injunction was sustained by the Court of Appeal. With leave, granted by the Court of Appeal, the union appealed to this Court.

Held (Laskin C.J. and Judson, Ritchie and Dickson JJ. dissenting): The appeal should be dismissed.

Per Martland, Spence and de Grandpré JJ.: The issue in the appeal was whether or not the unit certified under the provisions of the Labour Relations Act, R.S.B.C. 1960, c. 205, as appropriate for bargaining with the respondent was or was not barred from striking by the prohibitive provisions of s. 25 of the Mediation Services Act, 1968 (B.C.), c. 26 (as amended). The problem, therefore, became one whether “a vote has been taken by secret ballot of the employees in the unit affected”. The unit affected was “the employees of [the respondent]”, and there never had been a vote of the employees in that unit authorizing a strike at the respondent’s hotel. There had been a vote by the members of that unit and another unit similarly certified with the Crown Point Hotel authorizing a strike at both industries. So long as the two certified units acted in concert there could be no objection to a vote taken at a joint meeting of the two certified units with no separation of the members of the one certified unit or the other. The strike authorized at the vote of such general meeting never took place. The strike of the employees who were members of the unit certified for bargaining with the respondent was a different strike. Such interpretation of s.25 gives proper protection to both employers and employees in small industries.

Per Pigeon and Beetz JJ.: The unit which had been formed on a voluntary basis for the purpose of negotiating with the two employers was voluntarily dissolved the moment one of those employers and the union, on behalf of the employees of that hotel,

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entered into a separate collective agreement. What remained was the unit of the employees of the respondent. It was this unit which was affected by the strike and the employees in this unit had not voted on whether to strike or not to strike.

Per Laskin C.J. and Judson and Ritchie JJ., dissenting: The requirement of s. 25(1) of the Mediation Services Act, respecting a strike vote, was met by the ballot taken of the employees of both hotels. “Unit” is defined in s. 2(1) of the Act to mean “a group of employees on whose behalf a trade union is, or has been, engaged in collective bargaining”. The group here on whose behalf the union was so engaged was the total of the employees of the two hotels. The submission that there were two units, because the union was separately certified for the employees of each employer, and hence there should have been two separate votes, cannot be accepted. Nor can the view be accepted that because the Crown Point Hotel had settled with the union and entered into a collective agreement it became necessary for the union to take another strike vote of only the employees of the respondent. If the strike vote was valid when taken and when acted upon, it could not subsequently become invalid merely because the dispute which brought it on had not been completely settled.

Per Dickson J., dissenting: The word “unit” should not be held to be restricted within the context of s. 25(1) of the Mediation Services Act to a unit for which a trade union is certified. The vote taken on May 13, 1973, gave the union a mandate, subject to compliance with the statutory requirement as to strike notice, to call out on strike all or any part of the employees comprising the composite group and that mandate was not invalidated by subsequent events. The proper time to determine the validity of a vote is at the time the vote is taken and not at the time some of the employees affected by the vote actually go on strike.

APPEAL from a judgment of the Court of Appeal for British Columbia[1] dismissing an appeal from an order granting an injunction enjoining the appellant union from picketing the respondent’s hotel. Appeal dismissed, Laskin

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C.J. and Judson, Ritchie and Dickson JJ. dissenting.

J.M. Giles and R.C. Gardner, for the defendant, appellant.

K.J. Smith, for the plaintiff, respondent.

The judgment of Laskin C.J. and Judson and Ritchie JJ. was delivered by

THE CHIEF JUSTICE (dissenting)—What is in issue in this appeal is something fundamental in labour-management relations, namely, the integrity of voluntary collective bargaining. It is notorious that long before labour relations legislation was enacted in British Columbia, compelling employers to bargain collectively with trade unions which obtained certification thereunder as bargaining agents for employees of those employers, there were collective bargaining relations between employers and trade unions which were the product of voluntary recognition of such trade unions by employers. The introduction of compulsory collective bargaining legislation did not exclude voluntary recognition, and consequent voluntary bargaining, other than to require proof, if an issue arose thereon, that a collective agreement which resulted from voluntary negotiation was supported by a majority of the employees covered thereby.

Certification of a trade union as bargaining agent qualifies it to compel an employer to bargain collectively with it on behalf of employees for whom the union has been so certified. Those employees, collectively, form the “unit” in respect of which collectively bargaining is compelled. In the Labour Relations Act, R.S.B.C. 1960, c. 205, “unit” is defined simply as meaning a “group of employees”, sensibly so because what is central to the certification process is ensuring (as s. 10(1) of the Act specifies) that the “unit” is appropriate for collective bargaining. If a collective agreement results from the bargaining, it may cover additional or fewer classes of employees, as the parties may mutually decide; but, of course, each may insist that the bargaining be confined

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on bahalf of, or be in relation to only that unit for which certification was obtained. Certainly, once a collective agreement has been negotiated, with its specification of employees covered thereby, they become the work force, whether in the same or larger numbers (according to business exigencies) around which the administration of the collective agreement proceeds; and subsequent renewal collective agreements may, as a result of employer business developments or union importunities, or both, vary the job categories which those agreements cover.

It must be kept in mind that the specification of a unit is generally by way of designating the job classifications or work categories in which the employees to be represented in collective bargaining are employed. Conceivably, there may be no work categories, but only a specification of “all employees of an employer”, excluding those in a managerial capacity who may not be included in a bargaining unit. At the risk of being unnecessarily obvious, I must point out that the taking of a count of employees in order to satisfy certification requirements of proof that a majority are members of the applicant union does not mean that the certification and the union’s status as bargaining agent continue to depend on the very employees remaining in the employer’s employ. Fixing the number of employees as of a particular time to enable a count to be made does not mean that the certificate which a union may obtain on that basis is tied to the identical employees or to that number. The subsequent enlargment or contraction of the work force does not alone affect the validity of the certificate and indeed, once a collective agreement is negotiated the certificate has served its purpose and is, for all practical purposes, spent.

With this preface to the facts of the present case, I turn to the specific question which those facts raise. The question arises as follows. On

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December 5, 1968, the appellant union was certified as bargaining agent for all employees of the respondent at its motor inn in Trail, British Columbia, except those excluded by the Labour Relations Act. On May 5, 1970, the appellant union was similarly certified as bargaining agent for the employees of the Crown Point Hotel Ltd., operators of a hotel also situated in Trail. It does not clearly appear from the material in the record whether the union and the respective employers entered into separate collective agreements through negotiations following the respective certifications. It would not be a material consideration in this case whether they did or did not. What is undisputed on the material is that as a result of a suggestion by an official of the British Columbia Hotels Association, who approached the appellant union on behalf of the two hotels, the union agreed to bargain with the two employers jointly to negotiate one collective agreement which would apply to the employees of both employers. This, of course, was voluntary on the union’s part as it was on the part of the two employers because the union was not certified for employees in a multiemployer unit.

The voluntary negotiations resulted in a collective agreement dated May 12, 1971, but with effect from April 1, 1971 to March 31, 1973. Negotiations for a renewal agreement began before this expiry date and continued thereafter but they proved unsuccessful. On or about May 13, 1973, the union, in order to comply with a statutory requirement of a strike vote, pursuant to s. 25 of the Mediation Services Act, 1968 (B.C.), c. 26, took a ballot of the employees of the two hotels covered by the expired collective agreement. A majority of the employees who voted supported strike action. Notice of such action was given to the two hotels as required by the Mediation Services Act. Thereafter, a government mediator was appointed to help resolve the differences and he worked out proposals which were accepted by the union following a secret ballot of the employees of the two hotels who supported the proposals by their vote. This second vote was on June 10, 1973,

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and subsequent efforts at settlement were productive so far as the Crown Point Hotel Ltd. was concerned but not so far as the respondent herein was concerned. The union entered into a renewal agreement with the Crown Point Hotel Ltd. on July 6, 1973, and on that day began to picket the respondent’s premises.

It is common ground that the legality of the strike and of the accompanying picketing depends in this case on whether the statutory requirement of s. 25(1) of the Mediation Services Act, respecting the requirement of a strike vote, was met by the ballot taken of the employees of both hotels. Section 25(1) reads as follows:

No person shall declare or authorize a strike, and no employee shall strike, until after a vote has been taken by secret ballot of the employees in the unit affected as to whether to strike or not to strike, and the majority of such employees who vote have voted in favour of a strike.

Was there then a secret ballot taken here of “the employees in the unit affected”? In my opinion the answer is clearly “yes” and, subject to a point that I shall mention later, this is determinative of the appeal which should accordingly be allowed.

“Unit” is defined in s. 2(1) of the Mediation Services Act to mean “a group of employees on whose behalf a trade union is, or has been, engaged in collective bargaining”. The group here on whose behalf the union was so engaged was the total of the employees of the two hotels. It is said, however, that there were two units, because the union was separately certified for the employees of each employer, and hence there should have been two separate votes. I am unable to understand how the clock can be turned back, after a two-year agreement on a multi-employer basis has run its course, and a view be proposed that is consistent only with either separate collective agreements or with a breakdown of negotiations on a first collective agreement.

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The definitions of “unit” in the Labour Relations Act (“unit” means a group of employees) and in the Mediation Services Act (“unit” means a group of employees on whose behalf a trade union is or has been engaged in collective bargaining) are directed to different purposes; the former is directed to the establishment of a basis upon which the right to certification can be determined; the latter is concerned with the aftermath of certification, when bargaining either for a first agreement or for a renewal agreement has taken place. In first agreement bargaining, there will generally be a correspondence between those covered under either definition, but not necessarily a correspondence in persons or in numbers if the employer’s work force has been increased or decreased or has been subject to turn-over. In renewal collective agreement bargaining, the “unit” in Labour Relations Act terms is meaningless. Those covered by the agreement whose expiration has precipitated renewal negotiations are surely the persons affected if either a new agreement is made or if a strike is called or if a lockout takes place.

The Mediation Services Act alone deals with the failure of negotiations either for a first agreement or for a renewal agreement. There is nothing in the Labour Relations Act that relates to the procedures or the machinery for heading off or controlling strikes or lockouts. The Mediation Services Act recognizes multiemployer bargaining, both as it affects the union party to a multi-employer agreement and as it affects the various employers parties to the one agreement. Section 26(1) of the Act is, in my opinion, the counterpart on the employer side of s. 25 because it provides that “where more than one employer is engaged in the same dispute with their employees”, there shall be no lockout “until after a vote has been taken by secret ballot of all employers… and a majority of

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such employers who vote have voted in favour of a lockout”.

What we are being asked to do in this case is to unscramble an omelette. If it is the case that unions that have bargained with more than one employer cannot lawfully take a strike vote of the composite employee force if they have not been certified for a multi-employer unit, what then becomes of voluntary collective bargaining and voluntary collective agreements? I see no difference that makes industrial relations sense between a situation where a union has initially bargained with more than one employer without having been certified in any way and a situation where it has bargained with a group of employers jointly after having been certified (and perhaps bargained) separately with each of them before entering into one composite collective agreement covering the employees of all of those employers.

There is nothing in the relevant legislation of British Columbia that requires unions to be certified before taking a strike vote following a rupture of relations after a collective agreement has expired. If it is required of a union which has had multi-employer bargaining relations, it must be equally required of a union that bargains on a voluntary basis with one employer. The fact of previous separate certifications in respect of different employers dissolves in a multi‑employer agreement which is the product of voluntary bargaining. It is obvious to me that only by reading the words in s. 25(1) of the Mediation Services Act as referable to the collective bargaining process, to which they are addressed, and not to the certification process, do we have consistency with the object that they serve, namely, the promotion of peaceful industrial relations, through assisting mediation if necessary, under negotiated collective agreements.

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There is one further point that arises in this case to which I would turn, and it is the point taken by the majority of the British Columbia Court of Appeal, namely, that because Crown Point Hotel Ltd. settled with the union and entered into a collective agreement that made it necessary for the union to take another strike vote of only the employees of the respondent. This view, as it was expressed in the reasons of the majority, ignores the provisions of s. 25(2) which specifies the time within which a strike must follow upon the taking of a strike vote and which requires notice of intended strike action to be given to the employers. That notice was given to the respondent and similarly to the Crown Point Hotel Ltd. If as is implicit, if not explicit, in the reasons of the majority, the strike vote was valid when taken and when acted upon, I do not see how it could subsequently become invalid when the dispute which brought it on had not been completely settled. It may be urged that there is logic in the position taken in the Court below. I commend in this respect, having regard to the dynamics of labour-management relations, Holmes’ well-known statement in New York Trust Co. v. Eisner[2], at p. 349, that “a page of history is worth a volume of logic”.

I would allow the appeal with costs in the Courts below, but the costs in this Court shall be payable by the appellant to the respondent on a solicitor-client basis pursuant to the order granting leave to appeal.

The judgment of Martland, Spence and de Grandpré JJ. was delivered by

SPENCE J.—I have had the opportunity of reading the reasons prepared by both the Chief Justice and Mr. Justice Dickson. I have, however, come to the conclusion that the appeal should be dismissed for these reasons.

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I am in complete agreement with the reasons expressed by the Chief Justice in so far as he, in those reasons, distinguishes between a “unit” and a “certified unit” and maintains the position of voluntary collective bargaining without the aid of any certification under the provisions of the Labour Relations Act, R.S.B.C. 1960, c. 205. The issue in this appeal, however, is whether or not the unit certified under the provisions of the Labour Relations Act as appropriate for bargaining with Terra Nova Motor Inn Ltd. was or was not barred from striking by the prohibitive provisions of s. 25 of the Mediation Services Act, 1968 (B.C.), c. 26 (as amended). Section 25(1) of that statute provides:

25. (1) No person shall declare or authorize a strike, and no employee shall strike, until after a vote has been taken by secret ballot of the employees in the unit affected as to whether to strike or not to strike, and the majority of such employees who vote have voted in favour of a strike.

(The italics are my own.)

The problem, therefore, becomes one whether “a vote has been taken by secret ballot of the employees in the unit affected”. The unit affected was “the employees of Terra Nova Motor Inn Ltd., 1001 Rossland Street, Trail, B.C.” (See Ex. “A” to the Affidavit of G. Larose.)

There never had been a vote of the employees in that unit authorizing a strike at the Terra Nova Motor Inn. There had been a vote by the members of that unit and another unit similarly certified with the Crown Point Hotel authorizing a strike at both industries. So long as the two certified units, i.e., that certified for the Crown Point Hotel and that certified for the Terra Nova Motor Inn, acted in concert there could be no objection to a vote taken at a joint meeting of the two certified units with no separation of the members of the one certified unit or the other. The strike authorized at the vote of such

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general meeting never took place. The dispute with the Crown Point Hotel was settled and the members of the certified unit for that hotel entered into a new collective agreement with their employer.

What was proposed and what commenced on July 6, 1973, was a different strike and was a strike of the employees who were members of the unit certified for bargaining with the Terra Nova Motor Inn Ltd.

I have had regard for s. 25(2) and s. 26 of the Mediation Services Act. I can see nothing in either of those sections which would cause me to vary the opinion I have expressed above. I am, moreover, of the opinion that this view of the matter is the only one which can protect sufficiently employers in small industries and the employees thereof from being overborne by employers and employees in larger industries. It is surely perfectly proper to conduct multiple collective bargaining between the employers and the employees of many industries in the same field varying considerably in size but neither the smaller employer nor his workmen can be protected from the disturbing effects of a strike unless and until the employees of that smaller industry, being the unit “affected”, themselves alone vote for or against a strike directed only against their own employer.

It is worthy of note that in the vote in favour of the strike held at the joint meeting of the two units where the ballot was a secret one, there being no separation of the votes cast by the members of either the one unit or the other unit, seventeen members voted against a strike. The affidavit of G. Larose filed on behalf of the Terra Nova Motor Inn Ltd. shows that it had only twenty-four employees. Of course, no one can say who constituted either the forty-seven who voted in favour of the strike or the seventeen who voted against the strike but these numbers illustrated the possibility of the exact result occurring which I have suggested might occur and I am of the opinion that the statute should be so interpreted as to prevent such an occurrence.

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I would, therefore, dismiss the appeal with costs on a solicitor and client basis in accordance with the order of the Court of Appeal of British Columbia granting leave to appeal to this court.

The judgment of Pigeon and Beetz JJ. was delivered by

BEETZ J.—I have had the advantage of reading the reasons prepared by the Chief Justice, by Mr. Justice Spence and by Mr. Justice Dickson.

I concede that the strike vote taken on May 13, 1973, was a valid one. The question however is whether, with respect to the strike which effectively took place, that vote met with the requirements of s. 25(1) of the Mediation Services Act. It was the vote of a unit which had been formed on a voluntary basis for the purpose of negotiating with two employers. In my view, this voluntary unit was voluntarily dissolved the moment the Crown Point Hotel, one of the two employers, and the union, on behalf of the employees of that hotel, entered into a separate collective agreement. What remained was the unit of the employees of the Terra Nova Motor Inn Limited. It was this unit which was affected by the strike and the employees in this unit had not voted on whether to strike or not to strike.

In the result, I agree with Mr. Justice Spence.

DICKSON J.—This is a case of statutory construction which has given rise to some difficulty. The appeal is from a judgment of the Court of Appeal of British Columbia dismissing an appeal from an order of a Local Judge granting an injunction to the respondent, Terra Nova Motor Inn Ltd., enjoining the appellant union from picketing the respondent’s hotel.

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The facts are not in dispute and may be shortly stated. The union has been the certified bargaining agent for the employees at the respondent’s hotel in Trail, British Columbia, since December 5, 1968. The union has also been the certified bargaining agent for the employees of Crown Point Hotel, also in Trail. In the early part of 1971 the union agreed to a proposal of an officer of the B.C. Hotels Association on behalf of the two hotels to the effect that the two hotels would bargain jointly with the union on behalf of employees of both hotels as a single group. Subsequently, a collective agreement was entered into by the employees of the two hotels with their respective employers. The agreement commenced April 1, 1971, and expired on March 31, 1973.

Following expiry of this agreement, negotiations for the purpose of concluding a new agreement were carried out by a committee representing both hotels on one side and the union representing the employees of both hotels as one group on the other. In the early part of May, negotiations broke down and on May 13, 1973, the union in order to comply with s. 25 of the Mediation Services Act, 1968 (B.C.), c. 26, requiring a strike vote, took a secret ballot of the employees of both hotels as one group. A majority of the employees voted to strike. On May 18, 1973, strike notice as required by the Mediation Services Act was sent by the union to both hotels. Following the giving of strike notice, a mediation officer was appointed and further negotiations took place. In the early part of June, the mediation officer submitted a proposal to both sides. On June 10, 1973, the employees of both hotels, voting as one group, agreed to accept the proposal. Crown Point Hotel also agreed to it, but the respondent, Terra Nova Motor Inn Ltd., rejected it. Thereafter Crown Point Hotel and the union, on behalf of the employees of that hotel, entered into a collective agreement. On July 6, 1973, the union took strike action and commenced picketing the premises of the respondent’s hotel. On July 18, 1973, the respondent commenced these proceedings against the union.

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The outcome of this appeal depends upon the legality of the strike which itself depends upon the validity of the strike vote taken on May 13, 1973. If that vote is invalid the strike is illegal and the picketing is illegal and the injunction restraining the picketing should stand. The respondent maintains that the vote was not a proper vote as required by s. 25 of the Mediation Services Act. The appellant maintains the provisions of s. 25 of the Act were complied with by the union in its vote on May 13, 1973, and, as a result, the strike and the picketing are, in fact, legal and the injunction should be dissolved. In the Court of Appeal, the appellant also contended that the respondent had failed to adduce sufficient evidence of irreparable harm not compensable by an award of damages at trial. Nemetz J.A. would have refused the interlocutory injunction on the ground that a case of irreparable damage had not been made out. In this Court, counsel for the appellant abandoned that argument and relied solely on the submission that the Court of Appeal ought to have found that the strike vote conducted by the union complied with the requirements of s. 25 of the Mediation Services Act. This is the sole issue to be decided.

This issue depends upon the interpretation placed upon s. 25(1) of the Mediation Services Act, which reads as follows:

25. (1) No person shall declare or authorize a strike, and no employee shall strike, until after a vote has been taken by secret ballot of the employees in the unit affected as to whether to strike or not to strike, and the majority of such employees who vote have voted in favour of a strike.

(Emphasis mine.)

Imprecise drafting of this seciton, combined with the unusual facts of this case, have created the task of statutory construction facing the Court in this appeal.

The nub of the problem centres on the meaning of the phrase “the employees in the unit

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affected as to whether to strike or not to strike”. The validity of the strike vote depends upon whether the proper group of employees as envisioned by this phrase actually voted on May 13, 1973, to authorize a strike. The appellant maintains that the proper group of employees to authorize the strike consisted of both groups of employees from the two hotels; that group did, in fact, vote and therefore the section was complied with. The respondent maintains that the group of employees in the context of the section that should have voted was the group of employees of the Terra Nova Motor Inn; they did not vote as such and, therefore, the section was not complied with.

At the outset, the meaning of the word “unit” in s. 25(1) of the Act must be determined. Does “unit” refer only to a group of employees in respect of which a trade union has been certified as bargaining agent? If it does, the vote is invalid and the strike is illegal, for it is common ground that the union, though certified for both groups of employees as separate units, was not certified for a unit comprising both groups. There is textual support in the totality of the Mediation Services Act and the Labour Relations Act of British Columbia, R.S.B.C. 1960, c. 205, which would seem to indicate that the word “unit” in the Mediation Services Act is restricted to a unit for which a trade union is certified, but I have come to the conclusion, not without hesitancy, that the better view is that the word “unit” should not be held to be restricted within the context of s. 25(1) to a unit for which a trade union is certified. Section 2(1) of the Mediation Services Act defines “unit” as a “group of employees on whose behalf a trade union is, or has been, engaged in collective bargaining”. There is nothing in this definition nor in any other section of the Act specifically stating that the word “unit” be restricted in its application to a unit for which a union is the certified bargaining agent and it cannot be gainsaid that it was the composite group on whose behalf the union had been engaged at all times in collective bargaining. There is no evidence that at any material time the union conducted

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bargaining on behalf of the respondent’s employees as a separate group.

In interpreting the phrase “affected as to whether to strike or not to strike” in relation to the facts of this case, I have no doubt that at the time of the vote on May 13, 1973, all of the employees who voted were employees affected as to whether to strike or not to strike. The vote gave the union a mandate, subject to compliance with the statutory requirement as to strike notice, to call out on strike all or any part of the employees comprising the composite group. The question then is whether the mandate became invalidated by ensuing developments. In my view the proper time to determine the validity of a vote is at the time the vote is taken and not at the time some of the employees affected by the vote actually go on strike. Validity should not depend upon the course of, or be invalidated by, subsequent events.

The purpose of the Mediation Services Act is to promote industrial peace. Following the vote of May 13, 1973, the union could have struck both companies and no one could properly have questioned the lawfulness of the strike. The alternative was to reach a settlement to the extent possible and confine strike action to the area where agreement was not possible. The union chose the latter course of action and I do not think it can be faulted for doing so. In my view we are here concerned with one strike only, not with two strikes, and the validity of that one strike clearly rested upon the validity of the vote taken on May 13, 1973. There was no obligation on the union to take all of the employees, who voted, out on strike. If a vote in favour of strike action is taken affecting a group of employees and it then transpires that part of the group wishes to go out on strike and another part does not, it does not become necessary, in my view, to take a fresh vote of those

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employees who actually strike. The legislation does not enjoin a succession of votes.

I would allow the appeal with costs in the Courts below. The Court of Appeal of British Columbia, at the time of granting leave to appeal, imposed the condition that the union give an undertaking to pay the costs of Terra Nova in this Court on a solicitor and client basis in any event of the cause. For that reason, costs in this Court should be payable by the union on a solicitor and client basis.

Appeal dismissed with costs, LASKIN C.J. and JUDSON, RITCHIE and DICKSON JJ. dissenting.

Solicitors for the defendant, appellant: Farris, Vaughan, Wills & Murphy, Vancouver.

Solicitors for the plaintiff, respondent: M.E. Moran, Castlegar.