International Ladies Garment Workers Union v. Rothman, [1941] SCR 388

Supreme Court of Canada

International Ladies Garment Workers Union v. Rothman, [1941] S.C.R. 388

Date: 1941-06-02

International Ladies Garment Workers Union and Others (Plaintiffs) Appellants;

and

Charles Rothman (Defendant) Respondent.

1941: May 6; 1941: June 2.

Present: Rinfret, Crocket, Kerwin, Hudson and Taschereau JJ.

ON APPEAL FROM THE COURT OF KING'S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC.

Practice and procedure—Trade unions and other similar associations—Not incorporated and not possessing otherwise collective civil personality—Capacity to be sued as such—Whether capacity to bring suit also as plaintiffs—"An Act to facilitate the exercise of certain rights" Quebec statute, 1938, 2 Geo. VI, c. 96.

The Quebec statute of 1938 (2 Geo. VI, c. 96), enacted to facilitate the exercise of certain rights, allows the summoning, before the courts of the province, of any group of persons associated for the carrying out in common of purposes or advantages of an industrial, commercial or professional nature in that province, such group not possessing a collective civil personality recognized by law and not being partnerships

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within the meaning of the Civil Code; but that statute does not confer on these groups (in this case trade unions) the right to bring suit, i.e., the right to ester en justice as plaintiffs.

Society Brand Clothes Limited v. Amalgamated Clothing Workers of America ([1931] S.C.R. 321) disc.

Judgment of the appellate court (Q.R. 69 K.B. 154) affirmed.

APPEAL from the judgment of the Court of King's Bench, appeal side, province of Quebec[1], affirming the judgment of the Superior Court, Surveyer J., maintaining the respondent's exception to the form and dismissing the present action in so far as it concerned three of the appellants, viz., the International Ladies Garment Workers Union, and the Dressmakers Union Local 262 and the Dress Cutters Union Local 205, both local unions of the first-mentioned union.

J. J. Spector for the appellants.

Henry Weinfield K.C. for the respondent.

The judgment of the court was delivered by

Rinfret J.—In the writ of summons, the appellants are described as follows:

The International Ladies Workers Union and the Dress Makers Union Local 262 of the said International Ladies Garment Workers Union and The Dress Cutters Union Local 205 of the said International Ladies Garment Workers Union, all of the city and district of Montreal, and being voluntary associations consisting of groups of persons associated for the carrying out in common in the city and district of Montreal, of purposes and advantages of an industrial nature and not possessing in the province of Quebec a collective civil personality recognized by law and not being partnerships within the meaning of the Civil Code but competent to ester en justice in virtue of the Act to facilitate the Exercise of Certain Rights, 2 Geo. VI, statutes of Quebec, chapter 96.

The appellants joined with seventy-six individual plaintiffs in an action whereby, praying act of their readiness and willingness to fulfill their obligations and to continue at all times in the employment of the respondent upon the rates of salary and the terms and conditions provided for in four agreements between The Montreal Dress Manufacturing Guild, the International Ladies Garment Union and the Dressmakers Union Local 262, or with the Dress Cutters Union Local 205, and for the term therein stipulated, they prayed that judgment be rendered against the

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respondent in the sum of $122,360, payable to the individual plaintiffs respectively in divers sums therein mentioned; under reserve of all other rights of the plaintiffs, and especially without prejudice to the plaintiffs' rights to seek an injunction restraining the respondent from further violation of the said agreements, and without prejudice to such other employees of the respondent who have not been joined in the present suit, or without prejudice to their rights to take individual suits, if they so desire; and, further, and, in so far as it may be necessary at law, that the said agreements be declared resiliated and set aside and be annulled "à toutes fins que de droit" as regards the plaintiffs and the respondent herein; and that the mis-en-cause be summoned "pour voir dire et déclarer," in so far as its rights are affected and without prejudice to the rights of the plaintiffs against any other member of the said "mis-en-cause" other than the respondent, the whole with costs against the respondent, and without costs for the mis-en-cause, unless it contests.

The action, in so far as the appellants were concerned, was met by an exception to the form alleging that the statute of Quebec 2 Geo. VI, c. 96, invoked by the appellants, did not confer on them the right to sue as in the present action, that they were not legal personalities having in law the capacity to institute actions before the courts of the province of Quebec; and that the action should be dismissed with regard to the three appellants.

The Superior Court (Fabre Surveyer J.) maintained the exception to the form.

The Court of King's Bench (appeal side) unanimously confirmed that judgment.

The appellants appealed to this Court and were met by a motion to quash the appeal for want of jurisdiction.

The motion was adjourned so as to be considered together with the merits of the appeal; and, having heard the appeal, we are of opinion that it should be dismissed, but that the motion to quash should also be dismissed.

The jurisdiction of this Court depends upon the nature and the conclusions of the action. These conclusions, amongst other things, pray for the resiliation, the setting aside and the annulment of four agreements one of the effects of which is that the seventy-six plaintiffs ask the payment to them of a sum of $122,360; and they further

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pray for an injunction restraining the respondent from further violating, so it is alleged, the agreements in question. Under the circumstances, the jurisdiction of this Court is clear; and the motion to quash should be dismissed with costs against the respondent.

As for the merits involved in the appeal, our starting point must be the judgment of this Court in Society Brand Clothes Limited v. Amalgamated Clothing Workers of America[2].

In that case, the Amalgamated Clothing Workers of America, having its principal place of business in the city of New York, was described in the proceedings as "an unincorporated association"; the other respondents were also described as unincorporated bodies having their head offices and principal place of business in the city of Montreal. They were defendants in the case, had filed an appearance by counsel and had pleaded to the merits of the action. At the trial, counsel for the respondents raised orally for the first time the point that, not being legal entities, they were not suable. It was held that they could not be legally sued. Mr. Justice Cannon, delivering the judgment of the majority of the Court, stated that

an unincorporated labour union has no legal existence and cannot be considered in law as an entity distinct from its individual members and is not suable in the common name.

The Court should proprio motu take notice that an aggregate voluntary body, though having a name, cannot appear in court as a corporation when, in reality, it is not incorporated. A body such as this is not, according to law, a judicial person in the pertinent sense.

As a consequence, this Court decided that these bodies could not as such appear before the courts and that their officers had no capacity to represent them before the tribunals of the province of Quebec where "nul ne plaide au nom d'autrui." (C.C.P. art 81.)

That judgment was delivered in this Court on December 23rd, 1930; and our inquiry, therefore, may be limited to the question whether, since then, the province of Quebec has legislated to give legal existence to, or recourse against,

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these unincorporated bodies in such a way that they may be regarded as entities distinct from their individual members, and as having the right to ester en justice.

It will be remembered that, in the writ of summons, the appellants claimed to be authorized in that respect in virtue of the Act to facilitate the exercise of certain rights, being chapter 96 of the statute of Quebec, 2 Geo. VI, assented to on April 12th, 1938; and, in their factum, the appellants stated that

the issue resolves itself into an interpretation of that statute * * * and to a definition of the capacity of the appellant-Unions in the light of such statute.

But they also referred to the

collateral and ancillary legislation enacted in connection with industrial and labour matters in the province of Quebec since 1930.

It should not be denied that this is a matter of prime importance, affecting as it does the power of organized labour to come into court in order to maintain their rights before the tribunals of the province of Quebec.

It was stated in this Court that the pith and substance of the appeal consisted in the decision of the question whether or not the right to sue is co-relative, reciprocal and complementary with the right to be sued, so far as concerns the appellants; and whether these groups of persons, associated for the carrying on of their common purposes, were endowed with sufficient capacity to ester en justice "en demandant" as well as "en défendant."

The statute 2 Geo. VI, c. 96, is as follows:

1. Every group of persons associated for the carrying out in common of any purpose or advantage of an industrial, commercial or professional nature in this province, which does not possess therein a collective civil personality recognized by law and is not a partnership within the meaning of the Civil Code, is subjected to the provisions of section 2 of this Act.

2. The summoning of such group before the courts of this province, in any recourse provided by the laws of the province, may be effected by summoning one of the officers thereof at the ordinary or recognized office of such group or by summoning such group collectively under the name by which it designates itself or is commonly designated or known.

The summoning by either method contemplated in the precedent paragraph, shall avail against all the members of such group and the judgments rendered in the cause may be executed against all the moveable or immoveable property of such group.

The appellants contended that, since a group may be summoned collectively as defendant under the name by which it designates itself, it may likewise bring suit under that name.

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We agree with the learned trial judge and with the Court of King's Bench that such interpretation is contrary to the text of the statute. The words are precise and unambiguous, and they must be read in their ordinary and natural sense (Salomon v. Salomon[3]).

That statute allows the summoning of groups of the nature of the appellants before the courts of the province of Quebec, either by summoning one of their officers, or by summoning the group collectively under the name by which it is designated; but it does not permit them to bring an action before the courts. The word "summoning" is well known in the procedure of the province and it connotes the manner in which an action at law is brought against a defendant. The enactment is couched in express terms and does not admit of any possible doubt.

Indeed, it may be said that the very wording of the statute implies that, up to its adoption by the Legislature, groups like the appellants could not be summoned or sued before the courts in the province of Quebec, that, henceforth, actions may be instituted against them under the name by which they designate themselves; but the wording excludes the capacity for these groups to enter actions into court in that name on their own behalf (Inclusio unius fit exclusio alterius).

Prior to the enactment of the statute in question, trade unions, associations, or groups of persons envisaged by this statute were immune from legal proceedings as associations or groups. In order to bring action against them as defendants, it was necessary to implead every member of such association or group.

It was evidently to remedy that situation and, no doubt, as a consequence of the decisions of the courts on this point, to enable the practical exercise of legal recourse against the unincorporated bodies, that the statute in question was enacted.

The statute does not purport to incorporate the groups or persons therein described, nor does it purport to confer upon them a collective legal personality. It does exclusively what is therein stated: It allows persons who have claims against them to summon them in the name of one

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of the officers thereof, at the ordinary or recognized office of the group, or collectively under the name by which they are commonly designated or known.

The appellants might have acquired the necessary status as an association or professional syndicate under a Quebec statute known as The Professional Syndicate Act, ch. 255, R.S.Q., 1925; or, by registering in accordance with the provisions of the Trade Unions Act of Canada (R.S.C., 1927, c. 202), the members of the appellant trade unions might have acquired certain legal capacity and legal existence, in the name of such unions, within the limits of the last mentioned Act.

The appellants have not availed themselves of either enactment. And while they are invoking only the statute 2 Geo. VI, c. 96, they are subject to the provisions of s. 2 of that statute; and the consequence is that they may be sued in their collective name, but they are not authorized to sue as a group and in that name.

The appellants have referred the Court to an Act respecting Limiting of Working Hours (Statute of Quebec 23 Geo. V, c. 40), the Collective Labour Agreement Extension Act (24-25 Geo. V, c. 56), replaced by The Collective Labour Agreements Act (1 Geo. VI, c. 49) amended by 2 Geo. VI, c. 52, and replaced by The Collective Agreement Act (4 Geo. VI, c. 38), assented to on June 22nd, 1940.

They have also turned our attention to The Fair Wage Act (1 Geo. VI, c. 50), replacing The Women's Minimum Wage Act, and in turn replaced by the Minimum Wage Act (4 Geo. VI, c. 39).

Under sec. 7 of the Collective Agreements Extension Act (24 Geo. V, c. 56), it was provided that parties to a collective labour agreement should form a joint committee charged with the supervising and assuring the carrying out of such agreements and this joint committee, through its delegates, was entitled.

to exercise for the benefit of each of the employees all rights of action arising in their favour from a collective agreement made obligatory, without having to prove an assignment of claim from the person concerned.

And by subs. 4 of s. 7, it was enacted that

the joint committee formed under the Act shall constitute a corporation and shall possess the powers of an ordinary corporation for the carrying out of this Act.

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Similar provisions were carried through the subsequent Acts; but it will be noticed that the juridical personality, in the contemplation of the law, was given, not to the union, association or group of persons, but to the joint committee formed under the Acts. These several statutes are not susceptible of a construction favourable to the appellants' contention. None of them has the effect of qualifying the clear and express meaning of the statute of 1938 (2 Geo. VI, c. 96); and not only can it be said that, in making a union capable of being summoned as defendant in a law suit, the Legislature has not endowed it with all inherent, ancillary and supplementary powers enabling it to initiate an action at law; but the contrary intention of the Legislature evidently appears from the very wording of the enactment.

The question whether the appellant unions are proper and necessary parties in the present case has nothing to do with the point now under discussion. On the respondent's exception to the form, we are concerned exclusively with the question whether they could be made plaintiffs in the case in the name by which they are designated or commonly known—and nothing more. The appellants are not denied the right to institute proceedings; still less, as suggested by the appellants, are they denied their day in court. This judgment is not intended to go any further than to say that they could not institute the present proceedings and become plaintiffs in the case merely by designating themselves in the writ of summons under the name which they have adopted in the premises.

Under the circumstances, the appeal should be dismissed with costs.

We do not think the Court of King's Bench was in error in granting costs of appeal against the appellants. In the Society Brand case[4], the appeal was dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Bercovitch & Spector.

Solicitors for the respondent: Weinfield & Rudenko.