Seafarer's International Union of North America (Canadian District) v. Stern, [1961] SCR 682

Supreme Court of Canada

Seafarer's International Union of North America (Canadian District) v. Stern, [1961] S.C.R. 682

Date: 1961-06-26

Seafarer's International Union of North America (Canadian District) (Defendant) Appellant;

and

Joseph Stern (Plaintiff) Respondent.

1961: February 10, April 26; 1961: June 26.

Present: Kerwin C.J. and Taschereau, Cartwright, Fauteux and Abbott JJ.

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

Trade unions—Expulsion from union—Union member violating boycott of third party—Refusal to surrender membership card—Suspension and fine—Whether union empowered to order and enforce boycott—Action for reinstatement and damages.

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Mandamus—Trade unions—Whether mandamus available against unincorporated union for reinstatement of illegally suspended member—Code of Civil Procedure, arts. 81a, 81b, 992(2), (5).

Following the refusal of a hotel in Montreal to rent rooms to members of the defendant union, the union adopted a resolution declaring the hotel "unfair" and threatened to "place on charge" any members having dealings with the hotel. Shortly afterwards, the plaintiff was found patronizing the hotel beverage room. He was told that he was placed on charge and was requested to surrender his membership card. This he refused to do and was subsequently found guilty of violating the order of boycott and failing to surrender his card. He was suspended for a year and fined $200. The plaintiff applied for an order of mandamus to have the penalties imposed upon him set aside and to be reinstated. He also claimed damages. The trial Judge ordered the reinstatement of the plaintiff and awarded damages. This judgment was affirmed by the Court of Appeal.

Held: The appeal should be dismissed.

There was nothing in the union's constitution to suggest that the freedom, possessed by a member of the union like any other member of the public, to patronize a commercial establishment, as was done in this case, was one of the matters within the jurisdiction of the union to attend and regulate. Having therefore no power to order and enforce such a boycott, the union had no right to impose any penalties in respect thereof. The plaintiff was consequently entitled to an order setting aside as null and void all proceedings taken by the union, and to compensation.

Furthermore, even if the union had such a power under its constitution, it was doubtful that a trade union could attribute to itself the power to coerce its members, by threats of suspension of the right to obtain work, to boycott third parties for the reasons and in the circumstances such as were present in this case.

Mandamus could obtain in this case to compel reinstatement. It could not lie under art. 992(2), which deals with the reinstatement by a corporation of such of its members as have been removed without lawful cause, since a voluntary association, such as the defendant union, is not a legal entity and is not made so by the provisions of art. 81a of the Code of Civil Procedure. However, under art. 992(5) mandamus is authorized in all other cases in which is required the performance of any act or duty which is not of a merely private nature. The duty required of the defendant was to restore to the plaintiff his right to all union membership privileges, which are essential to earn a living in cases of closed shop and virtually so in nearly all of the other cases. This right and corresponding duty could not be of a merely private nature. The plaintiff was therefore entitled to the order of reinstatement.

APPEAL from a judgment of the Court of Queen's Bench, Appeal Side, Province of Quebec1, affirming a judgment of Smith J. Appeal dismissed.

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J. G. Ahern, Q.C., for the defendant, appellant.

J. M. Schlesinger, for the plaintiff, respondent.

The judgment of the Court was delivered by

Fauteux J.:—During the month of July 1957, appellant union, referred to as SIU, ordered its members to refrain from patronizing the York Hotel in Montreal and threatened to prefer union charges against any one failing to comply with this injunction. The resolution adopted in this respect at a "Headquarters' meeting", held in Montreal, on July 17, 1957, reads as follows:

It was moved by Brother Hunter, H.82, and seconded by E. Gaudreau, G.176, that in view of the fact that the York Hotel had refused to rent rooms to SIU members, that this membership go on record to declare this hotel unfair and to place on charge any SIU member dealing with this hotel.

The policy implemented by this resolution had been forecast in "The Canadian Sailor", a newspaper published by appellant. As it appears in the relevant extract of the newspaper, all trade unionists, as well as SIU members, were requested to boycott the York Hotel:

YORK HOTEL IN MONTREAL UNFAIR

SIU members, and trade unionists from all unions, are advised that the York Hotel on Notre Dame Street in Montreal is unfair.

This hotel refuses to rent rooms to union seamen and other union marine workers on the grounds that a man's occupation shall determine who shall be permitted by the York Hotel to stay at the York Hotel.

All labour unionists and SIU members are requested not to patronize the York Hotel, and to patronize its bar-rooms, cocktail lounges, restaurant, cigarette counters, nor any avenue of revenue operated by this anti-union concern.

Violation of this notice by SIU members shall constitute full and proper reason for regular union charges to be preferred against the member concerned.

Some fifteen days after the date of this resolution, respondent, a member in good standing of the union, was seen by an officer thereof, one Baxter, in the beverage room of the York Hotel consuming beer with other fellow members of the union. Baxter approached him, told him that he was violating the order, that he was placed under charge and requested him to surrender his membership certificate. With this request, respondent did not immediately comply.

He was thereafter formally charged, tried and found guilty by a "trial committee" to have (i) violated the order of boycott and (ii) failed to surrender his membership cer-

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tificate, when requested to do so. The committee recommended that respondent be suspended from all union privileges for a period of one year and that he be required to pay a fine of $200 before again shipping out on an SIU vessel. These findings and recommendations were subsequently approved at a headquarters' meeting. Respondent sought to appeal and, for that purpose, gave the appropriate notice. His appeal was not heard by the officers of the union who contended they never received the notice of appeal although the latter was given in the prescribed manner.

Respondent then took action against appellant in which he asked the Court (i) to set aside, as irregular, null and void, all the proceedings and decisions of appellant; (ii) to order appellant to reinstate him in all his union privileges, and (iii) to condemn it to pay him $2,000 as compensation for illegal suspension and loss of earnings resulting therefrom.

The Superior Court found that appellant had no power, expressed or implied, to order and enforce such a boycott; that there was no right or power to impose the penalties purported to have been imposed and that although respondent was entitled, upon surrender of his membership certificate, to an identification card permitting him to obtain work until the final disposal of the charges, such a card had not been issued to him; and that, as a result of appellant's action, respondent had been deprived of all membership privileges, denied entry to union headquarters and to employment, from the date of confiscation of his union certificate to that of the service of the action. The Court ordered appellant to reinstate respondent in all his privileges, condemned it to pay the compensation prayed for, and reserved to respondent such other rights and recourses as may appertain.

The union appeal from this judgment was dismissed by a unanimous decision of the Court of Queen's Bench2, the Court concurring in the view that appellant had acted beyond its constitutional powers in making this order of boycott and in imposing on respondent the above sanctions for his failure to comply with it.

The present appeal is from that decision.

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The primary question is whether the appellant could validly order a boycott of such a nature for, if it could not, all which it did in pursuance of its resolution is null and void.

While described in the writ of summons as being "a body politic incorporate and duly incorporated under the law", appellant is, as it was conceded and as it appears by its constitution filed in the record, a voluntary association of persons having, as a group, no legal entity. Thus the question really is twofold, to wit, whether appellant did have, according to its constitution, the power to order such a boycott and, if it did, whether it could, under the law, attribute to itself such a power.

With respect to the first point, appellant relies on Article I of the constitution and, specifically, on the part thereof which is here italicized:

ARTICLE I

NAME AND POWERS

This Union shall be known as the Seafarers' International Union of North America, Canadian District, affiliated with the Canadian Labour Congress, and the American Federation of Labour and Congress of Industrial Organizations. Its powers shall be legislative, judicial and executive. It is a grant of powers from the members and the Union shall not exercise any power unless specifically granted, or implied and needed in the exercise of power directly granted. The Seafarers' International Union of North America, Canadian District, shall be an industrial form of Union, composed of seamen in the Marine Industry.

This article, which prima facie purports to give to the union unlimited legislative, executive and judicial powers, must be read, however, with the opening statement of the constitution where are enumerated the principles for the promotion of which the union is established by the constitution. Inaccurately entitled "Preamble", this opening statement must, for the determination of the point under consideration, be here recited at length:

PREAMBLE

We, the Seafarers' International Union of North America, Canadian District, realizing the value and necessity of an organization of seamen, have determined to form one Union, the Seafarers' International Union of North America, Canadian District, affiliated with the A.F. of L., based on the following principles:

Whatever right belongs to one member belongs to all members alike, as long as they remain in good standing in the Union.

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First of thesis rights is the right of the Canadian seamen to receive their employment through their own Union Halls without interference from Government controlled bureaus or other detrimental groups.

That it is the right of each member to receive fair and just remuneration for his labour and to gain sufficient leisure for mental cultivation and physical recreation.

Further we consider it is our right to receive healthful and sufficient food and properly appointed forecastles in which to rest.

Next, is the right to be treated in a decent and respectful manner by those in command.

To assist other bona fide labour organizations whenever possible in the attainment of their just demands.

Recognizing the foregoing as our inalienable rights, we are conscious of corresponding duties to those in command, our employers, our craft and our country.

Based upon these principles, it is among our objectives to use our influence individually for the purpose of maintaining and developing skill in seamanship and effecting a change in the law governing the activities of the seamen in Canada, the Canada Shipping Act and the Merchant Seamen's Compensation Act, so as to render both these acts more equitable and to make them an aid to the development of a Merchant Marine and a body of Canadian Seamen.

To support a journal which shall voice the sentiments of the seafaring class and through its columns seek to maintain the knowledge of and interest in maritime affairs.

To regulate our conduct as a Union and as individuals so as to make seamanship what it rightly is—an honourable and useful calling. And, bearing in mind that we are migratory, that our work takes us away in different directions from any place, where the majority might otherwise meet to act, that meetings can be attended by only a fraction of the membership, that the absent members who cannot be present, must have their interest guarded from what might be the results of excitement and passions aroused by persons or conditions and that those who are present may act for and in the interest of all, we have adopted this constitution.

Manifesting the true object of the association, this opening statement is effective to reduce to its proper and, indeed, its intended dimensions, the otherwise unlimited scope of the legislative, executive and judicial powers given in Article I. The declared object of the association is to attend such matters as relationship between members, between them and their employers, between the union and other labour organizations, labour conditions, promotion of skill and seamanship, betterment of legislation concerning seamen. There is nothing, however, in this declaratory part of the constitution suggesting that the freedom, possessed by a member of the union like any other member of the public, to patronize a commercial establishment as did respondent

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in the present case, is one of the matters within the jurisdiction of the association to attend and regulate. Between the union or its members and York Hotel, there was, in the circumstances, no connection whatever related to any of these matters. In joining the union, respondent did contract with the other members thereof to abide, not to any order, but only to those for the making of which there was authority. I agree with the Courts below that appellant had no power, expressed or implied, to order and enforce such a boycott.

On the second point. It is doubtful that a trade union could attribute to itself the power to coerce, by threats of suspension of the right to obtain work, its present or future members—who are virtually forced to maintain union membership in order to obtain employment—, to boycott third parties in the exercise of their calling, for reasons and in circumstances such as are present in this case. Boycotting may, in certain circumstances, become a form of oppressive combination which the law condemns. Pratt et al. v. British Medical Association et al.3 The criminal law has been amended to grant immunity to trade unions from prosecution for agreements in restraint of trade. This is a qualified immunity which flows from a policy designed to promote legitimate endeavours of the working classes. It does not follow that this special immunity will operate in cases of combinations absolutely foreign to such endeavours and of which the end or the means are unlawful. It is unnecessary, however, to pursue the matter, the opinion reached as to the first point being decisive of the question.

Respondent was therefore entitled to the order setting aside, as being null and void, all the proceedings taken by respondent in pursuance of its resolution of July 17, 1957, and to the compensation granted for loss and damage sustained up to the issuance of the writ.

There remains to consider the order compelling appellant to reinstate respondent in all his privileges as a member of the union, which raises the question whether mandamus proceedings could obtain in this case. Article 992 of the Code of Civil Procedure reads:

992. If there is no other remedy equally convenient, beneficial and effectual, a mandamus lies to enforce the performance of an act or duty in the following cases:

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1. Whenever any corporation or public body omits, neglects or refuses to perform any act or duty incumbent upon it by law;

2. Whenever any corporation omits, neglects or refuses to make any election which by law it is bound to make, or to recognize such of its members as have been legally chosen or elected, or to reinstate such of its members as have been removed without lawful cause;

3. Whenever any public officer, or any person holding any office in any corporation, public body, or court of inferior jurisdiction, omits, neglects or refuses to perform any duty belonging to such office, or any act which by law he is bound to perform;

4. Whenever any heir or representative of a public officer omits, refuses or neglects to do any act which, as such heir or representative, he is by law obliged to do;

5. In all other cases in which the plaintiff is interested in requiring the performance of any act or duty which is not of a merely private nature.

Relying on the opening part of the article, appellant contended that the claim for damages constituted a remedy barring mandamus proceedings. As it appears in the second Report of the Commission charged with the Revision and Amendment of the Code of Civil Procedure of 1867, the words "equally convenient, beneficial and effectual", which, at the suggestion of the Commissioners, were inserted in the opening paragraph of art. 992 of the 1897 Code of Civil Procedure, are designed to check an extreme tendency of the Courts to refuse mandamus whenever there is another legal remedy, although such remedy is not so advantageous or effectual. Seriatim issuance of actions to claim damages is a doubtful method of earning a living and can hardly be regarded as a remedy equally convenient, beneficial and effectual as the remedy of mandamus. Appellant's submission cannot be entertained.

A substantial question, however, is whether mandamus proceedings can be taken against a voluntary association such as is appellant union. In Comtois v. L'Union locale 1552 des Lambrisseurs de Navires4, the Court of Appeal, relying on 1938 (Que.), 2 Geo. VI, c. 96, reproduced in R.S.Q. 1941, c. 342, as ss. 28 and 29, affirmatively answered the question. The point is dealt with by Mr. Justice Casey, at page 679, and his opinion in the matter is concurred in by Chief Justice Galipeault, Barclay and St-Germain, JJ.,

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the latter after much hesitation. The Report makes no mention of the view of Mr. Justice Pratte. The statute relied on allows a group of persons, like appellant union, which, as a group, has no collective civil personality recognized by law, to be sued in the name of one 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. Having referred to ss. 28 and 29 of the statute, Mr. Justice Casey said:

It cannot be denied therefore, that the statute gave to such groups generally, an existence separate and distinct from that of its individual members.

This legal existence and this availability of assets evidence the intention of the Legislature that these groups should be as amenable to the Courts as any other artificial person, should one seek to exercise against them "any recourse provided by the laws of the Province". This in my opinion is sufficient to make such a group subject to par. 2 of art. 992 C.P., and to expose it to the sanction of art. 1001 of the same Code.

This, in effect, is to say that these groups are thus given a status equal to that of a corporation, with the consequence that a voluntary unincorporated trade union is to be treated, as if it were, for all legal purposes, a corporation subject to the restraints and disabilities imposed by law upon artificial persons.

With deference, however, this view is in conflict with that expressed in this Court by Rinfret J., as he then was, with the concurrence of Crockett, Kerwin, Hudson and Taschereau JJ., in International Ladies Garment Workers Union v. Rothman5, a decision which does not appear to have been brought to the attention of the Court of Appeal when it dealt with the Comtois case, supra. Chief Justice Rinfret said, at page 393:

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 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 decision of the Court of Appeal in the Comtois case, supra, does not appear to have settled the question, in the Provincial Courts, as is shown particularly by the subsequent decision of the Superior Court in Dupont v. Steam-

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ship Checkers et al.6 Indeed the point is still debated, as may be seen in "Les conflits de droit dans les rapports collectifs du travail", Marie-Louis Beaulieu, pp. 132 et seq. and 288 et seq.

In this Court, the matter has been finally disposed of by what was said in International Ladies Garment Workers Union v. Rothman, supra.

In 1960, the provisions of the 1938 statute have been incorporated in the Code of Civil Procedure, as s. 81a by 8-9 Elizabeth II, c. 99. Also added to the Code, on the same occasion, was s. 81b. The latter gives the right to such group of persons, which constitutes an association of employees within the meaning of the Labour Relations Act, to act as plaintiff in judicial proceedings. Nothing in s. 81b can affect the conclusion reached in this Court, with respect to s. 81a, in International Ladies Garment Workers Union v. Rothman, supra. These amendments to the general law are inapt to give to these groups a legal entity separate from that of their members. The object of these amendments is to allow them to sue or to be sued, and permit that judgments, which might be rendered against them, be executory against all the moveable and immoveable property of the group. To this extent only was the general law altered. The following comments, which are found in Maxwell, "On Interpretation of Statutes", 10th ed., at page 81, find here their application:

There are presumptions against implicit alteration of the law. One of these presumptions is that the Legislature does not intend to make any substantial alteration, in the law beyond what it explicitly declares, either in express terms or by clear implication or, in other words, beyond the immediate scope and object of the statute.

Hence, with deference, mandamus proceedings against appellant union cannot be justified on the basis of the provisions of s. 2 of art. 992.

One must consider, however, s. 5 of that article, which authorizes mandamus "in all other cases in which the plaintiff is interested in requiring the performance of any act or duty which is not of a merely private nature." The nature of the act or duty, of which the performance by appellant is here sought by respondent, may be determined by the nature of the right of which the latter is seeking active recognition. This right is the right to be reinstated in all

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union membership privileges. Union mark for members of the working classes is now a requisite to obtain work. This requisite is clearly essential in cases of closed shop and virtually so in nearly all of the other cases. In the words of Mr. Justice Rand in Orchard et al. v. Tunney7:

Membership is the badge of admission and continuance and, vis-à-vis the employer, to remove the badge is directly and immediately to defeat the right.

These are facts that are now given effective recognition in labour and industrial laws where labour relations, labour conditions, collective agreements and industrial peace are, amongst other matters, dealt with. The right here involved is the right which respondent shares with any other member of the working classes to maintain himself in a position to obtain work and, for all practical purposes, it is the right to earn his living. And those who exercise a control over union membership hold, towards the working classes, a position which the law effectively raises above the level of a merely private nature.

Under like conditions, the right claimed by respondent and the duty required to be performed by appellant cannot be of a merely private nature. On these views mandamus can obtain under s. 5 of art. 992 and respondent was entitled to the order of reinstatement made in the Superior Court and affirmed in the Court of Appeal.

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

Appeal dismissed with costs.

Attorneys for the defendant, appellant: Hyde & Ahern, Montreal.

Attorney for the plaintiff, respondent: J. M. Schlesinger, Montreal.