International Brotherhood of Electrical Workers v. Town of Summerside et al., [1960] SCR 591

Supreme Court of Canada

International Brotherhood of Electrical Workers v. Town of Summerside et al., [1960] S.C.R. 591

Date: 1960-05-16

Local Union Number 1432 of the International Brotherhood of Electrical Workers (Plaintiff) Appellant;

and

The Town Of Summerside (Defendant) Respondent.

1960: February 23; 1960: May 16.

PRESENT: Kerwin C.J. and Cartwright, Martland, Judson and Ritchie JJ.

ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND.

Labour—Collective bargaining—Refusal of town to bargain—Mandamus— Whether Trade Union Act superseded by powers of town council under its Act of incorporation—Legality and applicability of Trade Union Act, R.S.P.EJ. 1951, c. 164, ss. 2, 3(1)—The Town of Summerside Incorporation Act, 1903 (P.E.I.), c. 18.

The plaintiff union applied for an order of mandamus to compel the defendant municipality to bargain collectively. The defence of the municipality was that the Trade Union Act was ineffective to legalize trade union activities in the province, and that in any event it did

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not apply to the municipality's employees in view of the more specific powers it had under its Act of incorporation respecting hiring, dismissal and remuneration of employees. The action was dismissed by the trial judge on the ground that the Trade Union Act did not apply. The Court of Appeal held that the Trade Union Act was valid and effectual to authorize collective bargaining and was available for that purpose between the parties, but that it did not apply on the topics of wages and dismissals which were reserved to the municipality under its Act of incorporation. The union appealed to this Court and the municipality cross-appealed.

Held: The appeal should be allowed and the cross-appeal dismissed.

Sections 2 and 3(1) of the Trade Union Act effectively constitute valid legislative authority for trade unions to organize and bargain collectively in the province.

There was no repugnancy between the Trade Union Act and the municipality's Act of incorporation. By the terms of s. 62 of the Act of incorporation, that Act applied only to "officers" appointed by the Council, a subject which is outside the jurisdiction of the Trade Union Act. The power to make by-laws given by s. 70 of the Act of incorporation includes the power to make such by-laws as may be deemed proper to comply with the terms of an agreement regulating the conditions of employment of the employees, provided that such provisions are not contrary to the terms of the enabling statute. There were no reasons at law why the powers vested in the Council could not be used to enable it to conclude a binding collective agreement with the union representing its employees.

APPEAL and cross-appeal from a judgment of the Supreme Court of Prince Edward Island, in banco [1], modifying a judgment of Tweedy J. Appeal allowed and cross-appeal dismissed.

W. E. Bentley, Q.C., and J. P. Nicholson, for the plaintiff, appellant.

J. O. Campbell, Q.C., and E. H. Strong, Q.C., for the defendant, respondent.

G. R. Foster, Q.C., for the Attorney-General of Prince Edward Island.

The judgment of the Court was delivered by

RITCHIE J.:—This action was commenced by writ of summons dated January 31, 1955, claiming a mandamus to compel the town of Summerside to bargain collectively with the appellant union. The writ was endorsed in the terms following:

The plaintiff's claim is for a Mandamus commanding the defendant to comply with the provisions of Section 3 of the Trade Union Act and to recognize the bargain collectively with the members of the plaintiff

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trade union representing the majority choice of the employees of the defendant in its electric light and power department eligible for membership in the plaintiff trade union, the Provincial Secretary having, under the provisions of the said Act, determined that a unit of employees of the defendant's electric light and power department is appropriate for collective bargaining under the said Act, and having also determined that a majority of the employees of the defendant in such unit are members in good standing of the plaintiff trade union, and that a majority of them have selected the plaintiff to be a bargaining agent on their behalf, and having certified the plaintiff as such bargaining agent, of all of which notice was duly given by the plaintiff to the defendant, the defendant having, after receiving such notice, and after having been duly requested by the duly chosen officers of the plaintiff so to bargain, neglected and refused to do so.

The statement of claim and reply amplify this endorsement, but the present appeal is only concerned with the points of law raised in the defence and rejoinder which are adequately summarized for the present purposes by Campbell C.J., speaking on behalf of the Supreme Court of Prince Edward Island in banco[2], in the course of rendering the decision from which this appeal is asserted. He there said at p. 27:

The two groups of objection in point of law which occupied the attention of both Courts may be summarized as follows:

(1) That the Trade Union Act of Prince Edward Island is ineffective to legalize trade union activities in the province;

(2) That even if the Trade Union Act has made trade unions lawful, its provisions cannot be construed to derogate from the more special provisions of the respondent's Act of Incorporation (Town of Summerside Act, 1903, Prince Edward Island, c. 18) and By-laws respecting the terms of employment of its officers and employees.

It was agreed between the parties that these points of law should be heard and determined before any issues of fact raised by the pleadings and by Order of the Court they were set down for hearing before Tweedy J. on September 22, 1955.

In his decision rendered on November 25, 1955, Tweedy J. stated that although he was not satisfied that the Trade Union Act, R.S.P.E.I. 1951, c. 164, as amended, by 1953 (P.E.I.), c. 3, was invalid, he was nonetheless of opinion that "it does not and cannot apply to the employees

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of the Town of Summerside in the electric light and power department" and an Order thereupon issued which read in part as follows:

. . . the Court being of opinion that the decision of such points of law substantially disposes of the whole action, HEREBY DISMISSES this action.

This opinion was obviously based on the proposition that the terms of employment of the employees of the town of Summerside were exclusively controlled by the Town of Summerside Incorporation Act, 1903 (P.E.I.), c. 18, and the by-laws passed thereunder and that the Trade Union Act, being a general statute, did not apply to a relationship which was governed by the terms of a special Act.

On December 8, 1955, the appellant gave notice of appeal from this decision insofar as the same declared that the Trade Union Act did not apply in the circumstances, and in that notice stated that the Court of Appeal would be moved on a date to be fixed by it for an Order setting aside and reversing that part of the decision.

For some reason which does not appear in the record, the date which the Court of Appeal fixed for the hearing of this motion (i.e., November 1, 1956) was almost eleven months after the date of the notice of appeal and when that day came the Chief Justice was unable to be present and the Court adjourned until the 19th of December when argument was heard and the case "taken under advisement and decision reserved to a day to be fixed". The next entry concerning this case according to the record before this Court is that after a lapse of approximately nine months the Chief Justice addressed a letter to the solicitors for both parties under date of September 12, 1957, which read as follows:

The members of the Court in banco have reached the following opinion as to the point already argued on this appeal:

We feel, that though we agree with the general principle enunciated by Mr. Justice Tweedy to the effect that the particular provisions of the Summerside Incorporation Act and By-laws should prevail over the more general provisions of the Trade Union Act, nevertheless there is a certain portion of the field in which the two courses of legislation may have concurrent effect. In other words, we are of the opinion that the provisions of the Summerside Incorporation Act and By-laws preclude the operation of the Trade Union Act in matters relating to the employment,

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remuneration and dismissal; but that at the same time there remains a limited field for collective bargaining in such matters as hours of work, safety precautions, holidays, social security, etc.

We are, however, in doubt as to the propriety of pronouncing judgment on the foregoing point while the other, and broader, questions remains undecided. It would, for instance, be mere dictum for the Court of Appeal to say that a certain portion of the field is open for collective bargaining, while it is still open for argument that the Trade Union Act is entirely invalid.

Counsel are therefore invited to attend before the Court on Friday, September 20th inst., at the close of the hearing scheduled for that date, to discuss the following questions: (a) whether, in view of the Court's opinion on the effect of the Summerside Incorporation Act, the parties still wish to have the broader question of the validity of the Trade Union Act argued and decided; (b) if the answer to question (a) is in the affirmative, what is the most appropriate method of arriving at a determination of the broader questions?

Counsel duly appeared on September 20 and addressed the Court after which the appeal was adjourned until November 12, but on that day the Court merely met for the purpose of adjourning until December 13, at which time a representative of the Department of the Attorney-General appeared, and after argument the hearing was further adjourned until January 9, 1958, when the argument was concluded.

On April 3, 1958, a memorandum was issued, signed by the Chief Justice and MacGuigan J., and reading as follows:

The Court is of the opinion that the Trade Union Act, now R.S., P.E.I., Chapter 164, is valid and effectual to authorize collective bargaining, and is available for that purpose as between the Town of Summerside and its employees except on the topics of wages, salaries, and dismissals, which are reserved to the Town Council by virtue of the Act of Incorporation of the Town of Summerside and by-laws passed thereunder.

Reasons and consequent directions to be given later.

The reasons of Campbell C.J., having been filed on July 25, the formal Order of the Court was granted on October 24, 1958, which read in part as follows:

This Court doth order and adjudge that the above recited judgment pronounced before Mr. Justice Tweedy be modified to the following extent, namely: that the Respondent's objections in point of law do not preclude the Appellant from obtaining, in proper circumstances, an order of mandamus requiring the Respondent to recognize and bargain collectively with the Appellant with respect to the terms and conditions of employment by the Respondent of its electric light and power employees who are members of the Appellant or with respect to other relevant matters; except on the

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topics of appointments or hirings, remunerations, and dismissals, which are reserved to the Town Council of the Respondent by virtue of its Act of Incorporation and by-laws passed thereunder.

The Court doth further order and adjudge that the action be referred back to the Court from which the appeal was taken for appropriate proceedings in the context of this judgment.

From this judgment the appellant has appealed to this Court, limiting his appeal however

... to the part of the said Judgment appealed from which purported to refer the said Action back to Mr. Justice Tweedy, and to the failure and omission of this Court to grant to the Appellant the Order of Mandamus for which the Action was brought, and to the part of the said Judgment which purports to exclude and except from the subjects of collective bargaining the topics of appointments or hirings, remunerations and dismissals.

A cross-appeal was entered by the respondent from that part of the decision which held that the Trade Union Act of Prince Edward Island was effective to legalize trade union activities in the province and also from that part which held that the legal objections raised by the respondent did not preclude the appellant from obtaining an Order of mandamus.

At the opening of the appeal before this Court it was suggested by the Chief Justice that in order to obviate any difficulty in the event that the judgment below should be considered not to be a final judgment, it might be advisable for the Court to make an order permitting the appellant to appeal and the respondent to cross-appeal. Counsel for all parties agreed to this suggestion and the order was thereupon made. The Attorney-General of Prince Edward Island was represented by counsel before the Court but took no part in the argument.

As to the cross-appeal, I am in complete agreement with the learned Chief Justice of Prince Edward Island in holding that "the Trade Union Act of Prince Edward Island is effective to legalize trade union activities in the province".

The argument presented on behalf of the town of Summerside in support of the cross-appeal was to the effect that the taint of illegality which attached to trade unions in England in the 18th century was imported to Prince Edward Island with the original colonists and that as it has

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never been removed by sufficiently explicit legislative language it remains, although unwritten and unrecognized for upwards of 200 years, so much a part of the common law of Prince Edward Island as to make the Trade Union Act, supra, ineffective and to preclude trade unions from the legal right to organize and bargain collectively in that province.

The provisions of ss. 2 and 3(1) of the Trade Union Act read as follows:

2. Employees may form themselves into a trade union, and join the same when formed.

3. (1) Employees may bargain collectively with their employer or employers and members of a trade union may conduct such bargaining through the trade union and through the duly chosen officers of such trade union. Every employer shall recognize and bargain collectively with the members of a trade union representing the majority choice of the employees eligible for membership in said trade union, when requested so to bargain by the duly chosen officers of said trade union, and any employer refusing so to bargain shall be liable to a fine upon summary conviction of One Hundred Dollars for each such offence, and in default of payment to thirty days imprisonment.

In my opinion these provisions effectively constitute valid legislative authority for trade unions to organize and bargain collectively in the province of Prince Edward Island.

As to that part of the notice of appeal which objects to the case being referred back to Mr. Justice Tweedy and to the failure of the Court of Appeal to grant the Order of mandamus, I am of opinion that neither of these objections can be sustained. The questions before this Court are limited to the points of law which were set down for hearing and determination before Tweedy J. Under the procedure here adopted and for the limited purpose of determining these questions, it must be taken that the statements of fact alleged in the appellant's pleadings are true, but this does not mean that they can be accepted for the purpose of granting the Order for mandamus. Although this action was started more than five years ago, no evidence has yet been taken, and as the Court appealed from held that

the respondent's objections in point of law do not preclude the appellant from obtaining, in proper circumstances, an Order for Mandamus . . .

it had no alternative but to refer the matter back to the learned judge of first instance.

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The really substantial ground of appeal to this Court is from that part of the Order and decision

which purports to exclude and except from the subjects of collective bargaining the topics of appointments or hirings, remunerations and dismissals.

The reasoning of the learned Chief Justice of Prince Edward Island was that the Trade Union Act was inconsistent with the Town of Summerside Incorporation Act in that the above subjects were specifically dealt with by By-law 326 which was validly passed under the latter statute. This by-law reads as follows:

The salaries of Town Officials, Firemen and all other Employees of the Town shall be such as the Town Council may from time to time determine and fix by resolution, and they shall remain in office during the pleasure of the Council, and should any vacancies occur, the Council may appoint others to take their place at any meeting of the Council.

Campbell C.J. appears to have taken the view that by the provisions of this by-law "the topics of appointments or hirings, remunerations and dismissals" of employees were reserved to the Town Council and that the collective bargaining provisions of the Trade Union Act had the effect of trespassing in some manner on this reservation and were, therefore, to this extent inapplicable to the Town because they formed part of a general statute which must give way to the special provisions of the Summerside Incorporation Act.

Much was said at the argument before this Court about the principle which is embodied in the maxim "generalia specialibus non derogant" and the learned judge of first instance devoted a large part of his decision to the citation of textbook and other authority in this regard, but the matter appears to me to have been most clearly stated by Duff J. (as he then was) in Toronto Railway Company v. Paget[3], where he said:

One possible view is that in such cases the provision in the general Act is to be wholly discarded from consideration; the other is that both provisions are to be read as applicable to the undertaking governed by the special Act so far as they can stand together, and only where there is repugnancy between the two provisions and then only to the extent of such repugnancy the general Act is to be inoperative.

I think the latter is the correct view…

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This view was reaffirmed by Rinfret J., speaking for the majority of this Court in City of Ottawa v. Town of Eastview[4], and in my opinion it correctly states the law which governs this branch of the case.

The learned judge of first instance approached the problem by saying:

Now the question to decide is, does the Trade Union Act which is a general Act repeal the Town of Summerside Act which is a special Act?

and it was apparently by answering this question in the negative that he reached the opinion that the Trade Union Act did not and could not apply to the employees of the town of Summerside in the electric light and power department. With the greatest respect, I am of opinion that, having regard to what was said by Sir Lyman Duff in the case above noted, the learned judge addressed himself to the wrong question, and should rather have asked himself how far the two statutes could stand together in relation to their effect on the desire of the employees in question to bargain collectively with the town of Summerside through their union representatives.

Chief Justice Campbell adopted the approach which was approved in Toronto Railway Company v. Paget, supra, but, as has been indicated, he appears to have considered that the collective bargaining provisions of the Trade Union Act were repugnant to the Summerside Incorporation Act and particularly the aforesaid by-law insofar as the "topics of appointments or hiring, remunerations and dismissals" were concerned.

With all respect, I am of opinion that there is no repugnancy between these two statutes.

By s. 62 of the Town of Summerside Incorporation Act it is provided that "officers" may be appointed by the Town Council and "shall hold office during pleasure" and that their removal, replacement and remuneration shall be at the pleasure of the council, but the Trade Union Act does not apply to "officers, officials or other employees employed in any confidential capacity" and the Town of Summerside Incorporation Act contains no such restrictions with respect to employees generally. In fact, the only

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reference in that Act to the employment of employees deals specifically with those employed in the town electric plant and system and is in the following broad language:

163. (2) The Town is empowered to employ such engineers, experts, agents and workmen as may be deemed necessary in surveying, evaluating, constructing, improving, extending and maintaining any such plant or system, and operating the same, and to lease, purchase or otherwise acquire such lands, rights, easements or privileges as may be deemed necessary for the purposes hereof.

It is true that By-law 326 is a by-law which is capable of being construed as regulating conditions of employment of employees of the town and as dealing with "topics of appointments or hirings, remunerations and dismissals", and it is also true that all such by-laws "shall be as legal and binding as if incorporated in and forming part of the Act" (s. 70) so long as they remain in force. It must be remembered, however, that the Council is clothed by s. 70 of the Act with full authority "to make, ordain, enact, revise, alter and amend such by-laws as they may deem proper . ..", and this power, in my view, includes the power to make such by-laws as may be deemed proper to comply with the terms of an agreement regulating the conditions of employment of its employees, provided that such provisions do not run contrary to the terms of the enabling statute. If the Town Council purported to pass a by-law changing the terms of the employment of "officers" who are by statute declared to hold office "during pleasure" other considerations might well apply, but in regulating the employment of the employees here in question there is no statutory restriction on the powers of Council who may make such by-laws to that end "as they may deem proper".

The requirement of the Trade Union Act that an employer shall bargain collectively with a union representing its employees does not have the effect of compelling either party to conclude an agreement against his will, but collective bargaining would be a mere sham if it were conducted by an employer having no power or authority to conclude such an agreement. I can, however, see no reason at law why the powers vested in the Town Council cannot

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be employed in such manner as to enable the town to conclude a binding collective agreement with the union acting on behalf of its employees.

It will accordingly be apparent that in my view there is nothing in the Town of Summerside Incorporation Act to exclude the respondent from being required to bargain collectively and without restriction with the appellant in accordance with the Trade Union Act, and I am of opinion that if it can be shown that all the requirements of the Trade Union Act have been complied with by the appellant, a mandamus should issue to compel the respondent so to bargain.

In view of all the above, I am of opinion that this appeal should be allowed, the cross-appeal dismissed, the judgment of the Supreme Court of Prince Edward Island in banco and of Tweedy J. set aside and the case remitted to Mr. Justice Tweedy for trial and determination of the issues of fact raised by the pleadings.

Counsel for the appellant entered a vigorous protest against the delays which took place between the hearing before Tweedy J. and the disposition of this case by the Supreme Court in banco, and it is for this reason that the course of events was traced in such detail at the outset of this decision. Having regard to all the circumstances, it is my view that the town of Summerside should immediately pay the appellant its costs of all the proceedings in this matter from the close of the pleadings to the issuance of the formal order on this appeal and cross-appeal, whatever the final result of the trial may be. There should be no costs for or against the Attorney-General of Prince Edward Island.

Appeal allowed and cross-appeal dismissed with costs.

Solicitor for the plaintiff, appellant: W. E. Bentley, Charlottetown.

Solicitor for the defendant, respondent: J. O. C. Campbell, Charlottetown.

Solicitor for the Attorney General of Prince Edward Island: R. R. Bell, Charlottetown.