Supreme Court of Canada
Newell v. Barker, [1950] S.C.R. 385
Date: 1950-02-21
William Newell (Plaintiff)
Appellant;
and
H. Barker and John
W. Bruce (Defendants) Respondents.
1949: November 14, 15; 1950: February 21.
Present: Kerwin, Taschereau, Rand, Estey and
Locke JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR
ONTARIO.
Labour Law—Trade Unions—Union Officials told
general contractor, that in event of sub‑contractor employing non-union
labour the union men would not work on the job, as a result sub-contract was cancelled—Whether
act of Union Officials unlawful interference with sub-contractor’s contractual
relations.
A general contractor under an agreement with
a Union, of which the respondents were officers, undertook to employ on its
contracts only union labour for that class of work in which the Union engaged.
Having secured a contract for a building project it assigned part of the work
to a sub-contractor which also employed only union labour. The latter, in the
belief that the appellant was also an employer of union labour, gave a contract
for part of such work to the appellant and the general contractor sharing the
same belief, approved. The respondents, on learning of the contract awarded the
appellant, advised the general contractor that their Union under the
circumstances would be unable to supply it with union labour for other work of
the same general nature as that awarded the appellant. The general contractor
then told its sub-contractor that non-union men
[Page 386]
could not work on the job and the sub-contractor
then advised the appellant that any men he employed there must be union men,
and the appellant agreed.
At the time the appellant secured his
contract he was aware of the Union’s rule forbidding its members to work with
non-union men engaged in the same class of work, and of its further rule
whereby it entered into collective agreements with the Master Plumbers
Association only and not with individual master plumbers such as the appellant.
Notwithstanding, he made no effort to join the Master Plumbers Association, nor
did his workmen apply to join the Union. He however attempted to negotiate with
the Union through the respondents but without success. The contract he had
obtained was thereupon terminated by mutual consent and he then brought action
against the respondents claiming they had conspired to interfere with his
contractual relations.
Held: The
respondents as officers of the Union were within their rights in advising the
general contractor of the consequences that would ensue if the appellant
carried out his contract by the employment of non-union labour. The evidence
did not support the contention that they conspired to injure the appellant, nor
that any acts on their part, or of either of them, was the cause of the
cancellation of the appellant’s contract.
Smithies v. National Association of
Operative Plasterers, [1909] 1 K.B. 310, and Larkin
v. Long, [1915] A.C. 814, distinguished. Local Union No. 1562, United
Mine Workers of America v. Williams and Rees, 59 Can. S.C.R. 240 at 247
referred to; Quinn v. Leathem, [1901] A.C. 495 and Lumley v. Gye,
(1853) 2 E. & B. 216, applied.
Per: Rand
J.—The proper view to attribute to the cancellation of the contract was not the
refusal of labour by the respondents but to the chosen course of action by the
building contractor.
Per: Rand
J.—It is now established beyond controversy that in the competition between
workmen and employers and between groups of workmen, concerted abstention from
work for the purpose of serving the interest of organized labour is justifiable
conduct. Crofter Harris Tweed Co. v. Veitch, [1942] All. E.R.
142.
Judgment of the Court of Appeal, [1949] O.R.
85; [1949] 1 D.L.R. 544, affirmed.
APPEAL from a judgment of the Court of Appeal
for Ontario,
affirming the judgment of the trial judge, Smiley J., dismissing the plaintiff’s action for
damages and for an injunction for interfering with his contractual relations.
G.T. Walsh, K.C., and Thomas Delaney, K.C.,
for the appellant.
A.W. Roebuck, K.C., and D.R. Walkinshaw for
the respondents.
[Page 387]
The judgment of Kerwin, Taschereau and Estey,
JJ. was delivered by:—
ESTEY J.:—The appellant (plaintiff) carries on
business as a master plumber, steamfitter and sprinklerfitter in the City of
Hamilton and brings this action against Barker, business agent of Local 67 in
Hamilton of the United Association of Journeymen Plumbers and Steamfitters of
the United States and Canada (hereinafter described as the “union” where the
general association is referred to, or “Local 67” if only the local association
is referred to), and the defendant Bruce, official organizer for Canada of the
union.
The appellant’s contention is that the
respondent Barker conspired with the members of Local 67 and the respondent
Bruce to injure and obstruct by unlawful means the appellant in pursuit of his
business, in consequence of which the W.H. Cooper Construction Company Limited
(hereinafter referred to as “the Cooper Company”) cancelled a large contract
with the appellant for work upon the Proctor & Gamble building in Hamilton.
The appellant’s claim for damages and an
injunction have been rejected both at trial and in the Appellate Court.
The evidence is largely concerned with the
contracts in respect of the construction in 1945 of a large building for
Proctor & Gamble Company of Canada Limited in Hamilton. H.K. Ferguson
Company Inc. of Cleveland had the contract for its construction and entered
into a sub-contract with the Cooper Company for the construction thereof,
except that it would itself install “all the new equipment and all the process
piping work, and oil refinery, and all those various processes that they use on
refining for their soap business.” Moreover, the plans were prepared by H.K.
Ferguson Company Inc. and its engineers and those of Proctor & Gamble Company
of Canada Limited. H.K. Ferguson Co. Inc., had a project manager to whom the
Cooper Company had to answer and who approved of all sub-contracts let and
materials purchased by the company. A.C. Davis was the project manager.
[Page 388]
H.K. Ferguson Company Inc. had an agreement with
the union under which it could employ upon the construction of this building
only union men. Moreover, the constitution of the union provided that no member
of the union was permitted to work on any job where non-union men were employed
on similar work.
The Cooper Company called for tenders for some
of the plumbing and steamfitting they were required to do under the contract
and as a result offered a contract to Adam Clark Company. Adam Clark Company
did not feel, because of their other work, they had sufficient men to undertake
this contract, with the result that it was then offered to the appellant. When
appellant indicated his willingness to accept, he was told by the Cooper
Company to go ahead. He did so, doing a small amount of work and ordering some
materials. H.K. Ferguson Company Inc. through its representative Davis approved
of Cooper Company accepting appellant’s tender. At that time neither Davis nor
Cooper knew appellant employed non-union men.
When Barker heard of the possibility of the
appellant, who employed non-union men, getting this sub-contract, he
immediately communicated with Bruce. Bruce at once, on November 8, 1945, spoke
to Davis as follows:—
I called his attention to the fact that
Mr. Newell was a non-union employer and that it would interfere with all
of the rest of his operations * * * I made it clear to him
that if he desired to have the rest of his work done by members of the United
Association, in accordance with the terms of our agreement, that he would have
to see that union men were employed on that other work.
Davis immediately spoke to the Cooper Company:—
I told Mr. Cooper that a non-union man
could not work there, because I expected to do a lot of industrial work, and
the International men would not work along with them on the same job, which he
knew.
Ralph Cooper up to that time understood the
appellant hired union men and in fact stated that had he known appellant was
not employing union men he would not have offered him the work on this building.
Ralph Cooper immediately told appellant “I want it clearly understood that all
men that you put on the Proctor & Gamble project must be union men.” The
appellant admits that the Cooper Company so insisted. He also acknowledges that
[Page 389]
he knew that union and non-union men could not
work on the construction of this large building because of the union rules, and
says that he immediately endeavoured to make a contract with the union that
would permit him to do so.
Appellant’s first approach to the union was on
Saturday, November 10, when he and Barker had a conversation on the street. The
respective versions of this conversation are quite different except that it is
agreed appellant asked that he be permitted to sign a contract with the union.
Whatever Barker’s precise reply may have been, he did not encourage appellant,
who interpreted his attitude as a refusal. Early that afternoon appellant
advised Ralph Cooper to that effect. Ralph Cooper then communicated with Barker
and as a consequence, on the following Monday, November 12, Barker, Bruce,
Cooper and Davis met at a conference. As to the discussion at this conference
there are again contradictions as to the precise language used, but it appears
that Bruce did in effect intimate that he could not prevent the Cooper Company
contracting with the appellant, but if non-union men were employed he would
have difficulty in supplying the men to H.K. Ferguson Company Inc. on their
part of the work. The qualifications and possibility of appellant’s men joining
the union were discussed, as well as that of an agreement or arrangement by
which appellant might be permitted to employ union men, but no progress was
made toward the attainment of this end. It was agreed at this conference that
the Cooper Company would again approach Adam Clark of the Adam Clark Company
and Bruce stated that if that company would undertake the contract he would
endeavour to get the necessary men.
When Cooper advised the appellant that at this
conference nothing had been attained on his behalf, the latter requested a
further delay of four days and said that he would write a letter “over the
heads of Bruce and the business agent.” That same evening at about nine o’clock
appellant delivered his letter to Barker. In the course of his evidence he
refers to his letter as his written application for a contract with the union.
It is not an application; on the contrary, it states he had made application
[Page 390]
on Saturday to Barker which was refused, and
that refusal confirmed at the conference on Monday, November 12. He then states
that refusal is an interference with his legal rights and unless it is
withdrawn in four days he would be forced to take legal action.
When appellant delivered this letter to Barker
at the latter’s home a conversation took place between the two but no progress
was made.
Barker says he showed the letter to Bruce. He
also placed it before his executive but no action was taken and no reply was
made thereto.
When on November 19 the position remained
unchanged, the Cooper Company notified appellant they were “unable to enter
into the contract” and at its request he signed the following release:—
I hereby accept the above notice and
release you from all responsibility or liability or damages which I have
suffered or may sustain by reason of your being unable to enter into such
contract.
Yours
very truly,
W.
Newell.
The learned trial Judge found that a contract
had been concluded between the Cooper Company and the appellant. As it is upon
this basis the case may be considered most favourably to the appellant, I
accept, as did the learned Judges in the Court of Appeal, that finding.
The evidence discloses that Bruce and Davis at
their conversation on November 8 discussed not only the employment of non-union
men by the appellant but work which Davis himself had under consideration. It
was not a disagreeable conversation. No demands were made. If there is a
conclusion suggested by the evidence it is that Davis realized his error in
approving of appellant’s contract and that he would see that only union men
were employed. Neither Bruce nor Davis as to this or any other occasion deposed
to language used by Bruce which would support a submission that H.K. Ferguson
Company Inc. was threatened, intimidated, coerced or in any way forced to take
the position which it did. In this regard the case is quite distinguishable
from Smithies v. National Assoc. of Operative Plasterers, and Larkin v. Long.
[Page 391]
Immediately Davis realized the inconsistent
position of his company was due to his having approved of the appellant’s
contract, without a clause providing for the employment of union men, he took
steps to have it, in this regard, rectified.
The respondents, as officers of the union and
Local 67, were quite within their rights in advising Davis of appellant’s
employment of non-union men and the difficulties that the employment of
non-union men upon the construction of this building would involve. Local
Union No. 1562, United Mine Workers of America v. Williams and Rees.
The appellant immediately took steps to comply
with the Cooper Company’s condition and his complaint after November 8 is to
the effect that they conspired to prevent him from obtaining a contract with
the union.
The evidence discloses that Local 67 enters into
agreements with the Master Plumbers’ Association at Hamilton but not with
individual master plumbers. It therefore follows that master plumbers in that
city deal with the union through the Master Plumbers’ Association. The members
of the union are journeymen plumbers who are received into membership upon
receipt of individual applications.
Appellant was familiar with the methods and
activities of the Master Plumbers’ Association, the union and Local 67. He had
been in business at Hamilton since 1920. At one time he had been a member of
the Master Plumbers’ Association and chairman of one of their committees. He
employed union men from 1920 to 1934 except for a period of fifteen months
commencing in 1929 when, because of some disagreement, the union did not permit
their men to be employed under him. In the course of his evidence he detailed a
number of differences, commencing in 1923, between himself and the union until
in 1934 he dissociated himself from the union and has since maintained a
non-union shop. He explained that so long as he was content with small
contracts there was no interference on the part of the union but in large
contracts the union
[Page 392]
insisted that only union men should be employed
and that as union men would not work along side non-union men the presence of
the latter on the job stopped the work.
The appellant, notwithstanding this knowledge,
placed his tender and when offered the work indicated his willingness to
accept. He neither at that time nor at any time material to this litigation made
an effort to become a member of the Master Plumbers’ Association. His efforts
to obtain the right to employ union men was directed to Local 67 and the union.
His first approach was on Saturday morning, November 10, when he met Barker on
the street and asked to sign a contract with the union. Apart from the fact
that some such request was made, the contradictions between these parties as to
this conversation are such that it is impossible to ascertain precisely what
happened, but it is clear that no progress was made and that afternoon
appellant reported to Ralph Cooper that Barker refused to grant him a contract
with the union. Then Ralph Cooper arranged for the conference, which took place
on Monday, November 12, when Davis, Cooper, Bruce and Barker were present. When
this conference failed to advance his position toward the attainment of a
contract, appellant asked Cooper for a further delay of four days. This was
granted and that evening the appellant wrote and delivered to Barker the letter
dated November 12. Throughout this letter, as well as throughout his
conversation with Barker, he does not indicate any change in his opinion
respecting the union, which he frankly admitted he had often criticized as
being unfair to him and not having adhered to its constitution. It was open to
the union and respondents to conclude, particularly because of their past
disagreements and no indication of any change in his views, that appellant’s
main concern was that he get a contract with the union which would give him the
privilege of carrying out his contract with the Cooper Company. In any event,
the union had a right to take the position that it would deal only with master
plumbers who were members of the Master Plumbers’ Association and that
journeymen plumbers should individually apply for membership. The appellant did
not endeavour to obtain membership in the Master Plumbers’
[Page 393]
Association in Hamilton and through that
association to deal with the union, nor did the journeymen plumbers in his
employ apply for membership in Local 67.
Appellant selected his own method for making his
application to the union and pressing for its acceptance. It was not in accord
with the practice of the union. We need not speculate as to what position the
union would have taken had appellant become a member of the Master Plumbers’
Association. It is sufficient that he did not do so at any time material
hereto, and the union was within its rights in these circumstances in not
formally considering his application until he had done so.
Appellant’s contract was suspended as of
November 8 but not cancelled until the 19th of November. The intervening time
was given to appellant because of his assurance that he would make arrangements
with the union. When on November 19 he had not succeeded, at the request of the
Cooper Company he signed the release.
Throughout the evidence establishes that the
respondents did no more than what they individually conceived to be their
respective duties as officers of the union and Local 67. The evidence as to
their conduct does not support a conclusion that they conspired or in any way
agreed or combined to injure the appellant. The evidence does support the
finding of the learned trial Judge:—
I am not prepared to find there was
anything in the actions of the defendant Bruce inconsistent with an endeavour
to have the agreement between the Union and the Ferguson Company lived up to
and to assist it and the Cooper Construction Company in carrying out their
respective contracts under the conditions of such agreement plus possibly a
desire to secure with respect to that job and future jobs the employment of
Union men.
The evidence does not support a conclusion that
Bruce in communicating with Davis, or any language or acts on the part of Bruce
and Barker or either of them was the cause of the cancellation of appellant’s
contract. It rather leads to the conclusion that Davis acted upon his own
judgment and just as he would have acted had he otherwise learned or discovered
that non-union men were being or would be employed on the construction of this
building. In these circumstances there was no interference on the part of the
respondents with contractual relations within
[Page 394]
the meaning of the oft-quoted statement of Lord
Macnaghten in Quinn v. Leathem, in referring
to Lumley v. Gye.
* * * that a violation of
legal right committed knowingly is a cause of action, and that it is a
violation of legal right to interfere with contractual relations recognized by
law if there be no sufficient justification for the interference.
The evidence does not support any of the
appellant’s allegations with respect to the existence of a boycott on the part
of the respondents.
The appellant asks that conclusions favourable
to his contention be drawn from the record in Bruce’s diary of Thursday,
November 8, reading in part: “Hamilton, with B.A. Barker. We met Mr. Davis
of H.K. Ferguson Co. on Proctor Gamble job—and had Newell case disposed of,—saw
W. Clark and Adam re job and need of taking on work.”
On Thursday, November 8, Bruce visited Hamilton.
He saw Davis, as already intimated, and because of the latter’s complete
acquiescence with respect to his company’s obligation to employ only union men,
he recorded “had Newell case disposed of.” On the same day Bruce interviewed
Clark of the Adam Clark Company and assured him that if he would take the
contract he (Bruce) would do his best to supply the necessary men. Bruce did
not, nor did he purport to, effect a contract between Adam Clark Company and
the Cooper Company. It is not suggested he had any authority to do so.
Moreover, Ralph Cooper states that at the conference on Monday, November 12:—
* * * and finally we decided
that we would go back and talk to the Adam Clark organization and see if they
would take the job on.
Bruce’s conduct both on November 8 in
interviewing Clark and his conduct on November 12 does not appear to be any
different from that of a union man who was anxious to have the employers act
within the limits prescribed by the union rules and when they did so that he
would exert his best effort to see that the necessary men were provided and
thereby delays avoided.
The appellant objected to secondary evidence of
the agreement between H.K. Ferguson Company Inc. and the
[Page 395]
union. Appellant had indicated upon the
examination for discovery that he would insist upon the production of the
original if evidence of this agreement was sought to be adduced. As a
consequence, respondent Bruce asked his head office in Washington, D.C., for
the original. He did not specify the date, and as apparently a new contract is
signed every year and his request was made in 1947, head office sent him the
1947 contract. Bruce says he was familiar with both of these contracts and that
certainly the sections material to this litigation were identical and that
he did not notice the date until the trial. He then wired for the 1945 original
which covered the time material to this action and was advised that because of
the confusion in moving their offices it could not be found. This evidence does
not establish either that it was lost or destroyed. It was out of the
jurisdiction, but it is clear that reasonable efforts would have obtained it.
On the part of the respondents secondary evidence, therefore, was not
admissible. Porter v. Hale.
Appellant overlooks, however, that as part of
his own case he adduced in evidence through his witness Ralph Cooper:—
“Well, the H.K. Ferguson Company have an
agreement with A.F. of L. steamfitters and pipe men in the States, and of
course we have to have union men on this job, so,” he said, “you had better
check into this immediately.”
* * * I called
Mr. Newell and said to him, “I want it clearly understood that all men
that you put on the Proctor & Gamble project must be union men. We want no
difficulty. Cooper Company have for years hired nothing but union men, we have
nothing but the finest co-operation from the union and it has to be a union
job.” Mr. Newell said, “All right, I will take care of that,” and he said,
“you leave it with me for a few days.”
And again:—
Q. Taking this specific contract, this P.
& G. Contract, would you have been able to hire him on this P. & G.
Contract if you knew he did not hire union men?—A. Not with the set-up, not
with the agreement which the Ferguson Company had with the A.F. of
L. Union.
And the appellant himself deposed:—
In the large contracts it is generally in
the closed shops, and it is mandatory for the union members when making
agreements that they have a clause inserted there, they must have a sympathetic
clause, and no agreements are permissible by the head office, United States,
unless the Association the defendants belong to has that clause.
[Page 396]
And again:—
That stops the whole job, through my
interference, would term it, by not having union men on the job. The
union men won’t work side by side with the non-union men.
If a party in the conduct of his own case
adduces inadmissible evidence, he cannot subsequently complain if that evidence
be taken into account in determining the litigation. Goslin v. Corry. This is upon the same principle that
evidence adduced to which objection was not taken at the proper time cannot be
objected to upon an appeal.
Both parties are bound by the view taken of
their respective cases and the mode of conducting them by their counsel at the
trial and they cannot look for a new trial on grounds admitted to be urged at
N.P. * * * and where evidence has been admitted without
objection as relevant to the issue, it cannot be objected to as inapplicable
after the judge has begun to sum up.
Roscoe’s Evidence in Civil Actions, 20th
Ed., p. 235; Phillip v. Benjamin9; Wigmore on Evidence,
3rd Ed., sec. 18, p. 323.
The foregoing evidence of Ralph Cooper, which is
supported by that of the appellant, justified the statement of the learned
trial Judge:—
The Ferguson Company had an agreement with
the United Association of Journeymen Plumbers and Steamfitters of the United
States and Canada to use all Union men and of which Bruce was apparently aware.
The judgment of the Court of Appeal for Ontario
should be affirmed and the appeal dismissed with costs.
RAND J.:—The courts below have concurred in
finding that there was no direct object or purpose by individual or concerted
action of the respondents to injure the business of Newell, the appellant. The
general building contractor had awarded to Newell certain work of plumbing and
heating, and upon that fact coming to the notice of the respondents, they drew
to the attention of the Engineering Company, which was entrusted with the total
construction, the fact that, in those circumstances, they would be unable to
supply union labour required for other work of the same general nature as that
awarded Newell. The International Union, which the respondents in dif-
[Page 397]
ferent capacities represented, had a written
agreement with the Engineering Company that only union employees for that class
of work would be engaged on constructions undertaken by them. It was also a
rule of the Union that members would not work on a job in association with
non-union labour of the same class except in special cases approved by named
officers.
It is now established beyond controversy that in
the competition between workmen and employers and between groups of workmen,
concerted abstention from work for the purpose of serving the interest of
organized labour is justifiable conduct. Crofter Harris Tweed v. Veitch, is the latest authority for this view,
and it clarifies the distinction between such action for an object or purpose
of the sort mentioned and an agreement of two or more to injure a competitor.
In the analysis made by Viscount Simon, in particular, of such and similar
purposes as they have been exemplified in the leading cases from Mogul S.S.
Company v. McGregor, Gow & Co.,
Allen v. Flood, and Quinn
v. Leatham, to
Sorrell v. Smith, the
purpose of malice, as meaning either malevolence or a primary intent to injure
a competitor, as distinguished from an incidental effect of a predominating
purpose of another nature, and that of strengthening or defending a recognized
and accepted social interest, are elaborated and differentiated; and where we
are not troubled with questions of mixed or multiple purposes, as we are not
here, the legal result in the ordinary case presents little difficulty.
The purpose, therefore, of the respondents as
found, which the evidence, I should say, clearly supports, having been to serve
the interest of the Union and not having been directed at injury to Newell, the
action of the respondents would have been unexceptionable if its effect had been
merely to influence the building contractor not to enter into an engagement
with Newell. But there was an existing contract which the building contractor
elected to
[Page 398]
bring to an end; and the question is whether
that circumstance gave an objectionable character to the conduct of the
respondents.
What they did was, at most, to refuse to
authorize the union men to work on the job or to persuade them not to do so
while a certain condition of things existed. There was no act of which, on the
foregoing conception of legitimate conduct, the appellant could complain. A
building contractor who, in the conditions of labour organization today,
contemplates available labour as unaffected by its own special interests,
proceeds on a false assumption; he is familiar with the everyday refusal of
union employees, for a variety of reasons, to enter upon work. The market of
labour is, therefore, restricted by considerations of competing interests which
are now part of the accepted modes of action of individuals and groups.
Does the exercise of those rights become illegal
by declaring the reason for it or by stating the conditions necessary to a
willingness to work, when that reason or those conditions relate to an existing
contract? It would seem to be obvious that it does not. If, when a contractor
has entered into an obligation of the sort here, individuals cannot ascribe to
that fact their decision to remain as they are, then their freedom of contract
is so far denied; and the statement of that reason in the circumstances of this
case is not to be converted into an inducing offer to remove the objectionable
fact.
The action of the respondents was not,
therefore, either a procurement or an inducement of the breach which I will
assume took place in Newell’s contract; but by it the building contractor,
having regard to the arrangement made by the Engineering Company and the Union,
and the necessity for obtaining considerable labour for the remaining portion
of the plumbing and heating work, facing on the one hand the contract and on
the other the source of labour not open to him, was put to a choice of the side
on which he considered his own interest to lie. It is, I think, the proper view
to attribute the cancellation of the contract not to the refusal of labour by
the respondents, but to the chosen course of action of the building contractor.
The decision to abstain may have been the
[Page 399]
controlling influence upon him, but whether we
attribute the rule to the balance of policy between these contending factors,
or to the election on the part of the building contractor, the result is the
same. If this were not so, by unitedly declining to associate themselves with
non‑union workers, the respondents and their workmen would involve
themselves in illegality brought about by the mere fact that the desire of the
building contractor for their labour was stronger than that of observing the
contract with Newell: by the offer of work made them, they became involved in
the necessity of either accepting it with its objectionable conditions, or of
avoiding collective refusal, or paying damages. To state that proposition in
relation to the circumstances with which we are dealing is, I think, to answer
it.
I would dismiss the appeal with costs.
LOCKE J.:—The appellant’s claim as pleaded was
that the respondent Barker, who was at the relevant time the business agent of
Local Union 67 of the United Association of Journeymen Plumbers and
Steamfitters, and Bruce, the organizer for Canada of the said Union, had
unlawfully and maliciously conspired and agreed with other members of the said
Local Union to injure the appellant by unlawful means in the pursuit of his
lawful trade and calling and to destroy his business as a master plumber and
steamfitter. In particular it was alleged that by threats, coercion and
intimidation practised by the respondents upon the W.H. Cooper Construction
Company, Limited, and in consequence of a boycott instituted by the respondents
and others unknown against the appellant, the said Company had broken a contract
which it had entered into with the appellant, whereby the appellant suffered
damage: alternatively, the appellant alleged that the respondents with others
unknown had “unlawfully and knowingly procured the W.H. Cooper Construction
Company, Limited, to commit a breach of its contract with the plaintiff.”
While, in addition, the appellant alleged that the respondents operating
through the Union had instituted and pursued a system of boycott against the
plaintiff, allegations which apparently refer to matters other than the alleged
loss of the Cooper contract, this claim was not pursued.
[Page 400]
Accepting the finding of the learned trial judge
that there was a concluded oral agreement made by the appellant with the Cooper
Company it is not denied that after this had been done Cooper informed the
appellant that it was necessary that he should employ Union labour for the work
and he agreed to do this. I agree with Laidlaw J.A., that this undertaking on
the part of the appellant became a condition of his contract with the Cooper
Company, failure to comply with which would relieve that company of its
obligations under the agreement. Upon conflicting evidence the learned trial
judge has found that the statement made by the respondent Bruce to Cooper was
“I can’t stop you from carrying on with Mr. Newell’s contract at all but
you realize that if Mr. Newell carries on with this work that I cannot
give Al Davis all the men he will require for this process piping.” Davis was
an official of the H.K. Ferguson Company of Cleveland, a concern which had the
principal contract for the work. This company had given a subcontract to the
Cooper Company for part of the work only, the Ferguson Company proposing itself
to do a major part of the work including the equipment and process piping,
which would require the employment of men of similar qualifications to those
employed by the appellant. Apart from any question as to whether a contract
between the Ferguson Company and the International Union obligating the former
to employ only Union men upon any of its undertakings was in strictness proven,
the evidence showed that the members of the Union were by the terms of its
constitution forbidden to work with non‑Union men and that the Ferguson
Company recognized that it was obligated to permit only Union men to work upon
the job. It thus appears that Bruce’s statement to Cooper was merely a
statement of fact. Unless it would be an actionable wrong on the part of the
plumbers and steamfitters, members of the Union, as between themselves and the
appellant to decline to work with non-Union men, and it is quite clear that it
would not, to state that they would so decline cannot be actionable at the suit
of the appellant.
When the appellant found that he was unable to
comply with the condition of his contract with the Cooper Com-
[Page 401]
pany that only Union men would be employed upon
the work, he agreed, at the request of that company, to the cancellation of his
contract and to release it of any obligation. There was in fact no breach of contract
by the Cooper Company, as alleged in the pleadings.
Had the claim been based upon a contention that
by some unlawful act of the respondents the appellant had been disabled from
carrying out his obligations, it would also, in my opinion, fail. The learned
trial judge has found that there was no evidence of conspiracy or of anything
unlawful in the acts of the respondents and it has been found in the Court of
Appeal that it was not proven that the failure of the appellant to reach an
agreement with Local Union 67, or to obtain the benefit of any agreement
between that Union and the Master Plumbers’ Association, was caused by any act
on the part of the respondents. I agree with these conclusions.
The appeal should be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellant: Morris
& Morris.
Solicitors for the respondents: Roebuck,
Bagwell, McFarlane and Walkinshaw.
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