Gagnon et al. v. Foundation Maritime Ltd.

Gagnon et al. v. Foundation Maritime Ltd.
Collection
Supreme Court Judgments
Date
1961-04-25
Report
[1961] SCR 435
Judges
Kerwin, Patrick; Locke, Charles Holland; Cartwright, John Robert; Judson, Wilfred; Ritchie, Roland Almon
On appeal from
New Brunswick
Subjects
Labour law
Decision Content
Supreme Court of Canada
Gagnon et al. v. Foundation Maritime Ltd., [1961] S.C.R. 435
Date: 1961-04-25
E. Gagnon and Others (Defendants) Appellants;
and
Foundation Maritime Limited (Plaintiff) Respondent.
1960: October 17, 18; 1961: April 25.
Present: Kerwin C.J. and Locke, Cartwright, Judson and Ritchie JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION
Labour—Request of unregistered unions for recognition refused—Subsequent picketing resulting in work stoppage—Unlawful strike constituting tortious conspiracy—Labour Relations Act, R.S.N.B. 1952, c. 124, ss. 22(1), 23.
While the plaintiff company was engaged in the construction of a wharf at St. John, New Brunswick, under a contract with the Department of Public Works, certain union organizers, who claimed that they repre- sented more than fifty per cent of the employees, asked for recognition of their unions. The company refused their request on the ground that the unions had not been certified under the Labour Relations Act. The subsequent establishment of a picket line brought the entire operation to a halt, and the work stoppage continued until an interim injunction was obtained to stop the picketing. At the trial, the plaintiff was awarded damages and an injunction restraining all picketing. On appeal, the damages were reduced but the injunction was affirmed. The defendants appealed to this Court.
Held (Judson J. dissenting): The appeal should be dismissed.
Per Kerwin C.J. and Cartwright and Ritchie JJ.: The submission that the prohibition with respect to striking contained in s. 22(1) of the Labour Relations Act only applied to employees on whose behalf an application for certification was pending before the Board was rejected.
The defendants not only formed a common design to obtain recognition for their uncertified unions, which would not of itself have been unlawful, but agreed to achieve this end by organizing a stoppage of work, which constituted a "strike" within the meaning of the Act on the part of a group of employees who were prohibited from striking by the terms of s. 22(1).
It was unnecessary to determine whether or not a breach of s. 22(1) gave rise to a statutory cause of action because when inquiry was "made of the statute law" it disclosed that the means here employed by the defendants were prohibited, and this of itself supplied the ingredient necessary to change a lawful agreement which would not give rise to a cause of action into a tortious conspiracy, the carrying out of which exposed the conspirators to an action for damages if any ensued therefrom. Therien v. International Brotherhood of Teamsters, [1960] S.C.R. 265, referred to.
It was not necessary for the plaintiff to prove that actual breaches of contract took place in order to sustain the plea of conspiracy because the evidence supported the allegation that the defendants wrongfully conspired to procure, cause and induce the employees of the plaintiff to abstain from work.
Per Locke J.: The action of the defendants in causing or inducing the employees to cease to work was a tortious act for which they were liable in damages. It was clear that their actions in setting up the picket line were carried on in combination for the purpose of causing injury to the plaintiff by unlawful means.
At the time the picket line was established the plaintiff, by virtue of its contract, was entitled and was required to enter upon the premises of the Crown for the purpose of carrying on the work of construction and to do so, in the circumstances then existing, without interference by the defendants or anyone else with the entry of its employees upon the premises. In these circumstances the conduct of the defendants was a private nuisance and, as damage resulted, actionable. Lumley v. Gye (1853), 2 E. & B. 216; Quinn v. Leathern, [1901] A.C. 495; Lyons v. Wilkins, [1899] 1 Ch. 255, referred to; Williams v. Aristocratic Restaurants (1947) Ltd., [1951] S.C.R. 762, distinguished.
Per Judson J., dissenting: The prohibitions of s. 22 of the Act applied only where an application for certification was pending, and the only other prohibition against striking was contained in s. 23 which did not touch this case. Therefore there was no breach of the Act which could turn the conduct here complained of into a tortious conspiracy. The conspiracy as found by the Court of Appeal was never pleaded. It was not open to that Court to base its judgment, of its own mere motion, on a conspiracy which had never been pleaded and which the defendants had no opportunity to answer.
The defendants in pursuit of the legal object of union recognition employed means which were neither criminal nor tortious in themselves but which, on one reading of the Act, could be held to be prohibited conduct. This did not make them guilty of the tort of conspiracy. In the law of civil conspiracy the unlawful means must be found in nominate torts or crimes.
There was no question of doing something lawful by unlawful means. If the conduct of the defendants was held to be contrary to the legislation, then the conspiracy was to do something forbidden by the Act. They should have been prosecuted for this breach, with leave of the Board, or if the plaintiff wanted damages, its claim was to be founded on a breach of the Act and no more—not on conspiracy.
APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division1, varying a judgment of Ritchie J. as to damages but affirming injunction granted. Appeal dismissed, Judson J. dissenting.
I. P. Macklin, for defendants, appellants.
A. B. Gilbert, Q.C., P. M. Laing, Q.C., and T. L. McGloan, for the plaintiff, respondent.
The judgment of Kerwin C. J. and of Cartwright and Ritchie JJ. was delivered by
Ritchie J.:—The evidence in this case discloses that in the early days of July 1958, at a time when the respondent company was employing some 190 workmen without labour difficulty, dispute or complaint of any kind, on the construction of a wharf for the Department of Transport at Saint John, New Brunswick, the three appellants Gagnon, Black-man and Merloni, accompanied by others, called on the superintendent on this job, asking that the company recognize certain unions which they claimed to represent. The superintendent told these men that the matter was one which would have to be decided by other company officials who would be in Saint John during the following week, and, accordingly, on July 15 the same three appellants and some other persons called on the company's construction manager who describes the interview in the following terms:
Mr. Merloni appeared to be the spokesman for the group. He asked if we would be prepared to recognize their union and sign an agreement with them. I asked him if their unions were certified and they were the legal bargaining agents and he replied they were not certified under the New Brunswick laws but had more than fifty per cent of the men who had signed cards with their groups and would we recognize them on that basis. I said "No," they should be certified under the law and we would not recognize them or sign an agreement with them on that basis.… The discussion I had was with Mr. Merloni. He was the spokesman. When I told him we would not recognize them or sign an agreement with them, the discussion ended and they left. When leaving Mr. Merloni said they were willing at this time to discuss the matter with us but there would come a time when we would have to bargain with them on their terms.
The superintendent, who was also present at the meeting, recounts Merloni's parting words as being, "the time will come when you will recognize us on our basis and there will be no discussion."
On the morning of July 23 (eight days after the meeting) it became apparent that the means which Gagnon, Black-man and Merloni had decided to adopt to achieve recognition without certification under the Labour Relations Act, R.S.N.B. 1952, c. 124, was to bring about a cessation of work at the company's premises by persuading the other appellants to parade outside the entrances thereto, carrying placards which read "Engineers, Teamsters & Labourers on strike against Foundation Maritime Limited". Although the picketing itself was, in my opinion, peaceful, it would be totally unrealistic to regard it as an exercise of any right of employees to peacefully inform other persons that they were on strike. There is no evidence that there was anything in the nature of a strike in progress before the placards were paraded and the picket line established. The purpose of the picketing and parading of placards was not to inform other people that a strike existed but rather to create a situation which would result in a cessation of work, constituting a strike within the meaning of the Labour Relations Act, s. l(p), and thus to achieve recognition for unions which were not prepared to comply with the provisions of the statute regarding certification.
The result of these activities was that none of the company's employees (except office workers and supervising staff) crossed the picket line although there were employees who otherwise would have been willing to return to work. Work ceased entirely until July 28th, when, after an interlocutory injunction had been granted to restrain the picketing, some 30 per cent of the men returned to work to be followed by others during the next seven days. The judgment of the learned trial judge which declared the strike and picketing to have been unlawful, awarded damages in the sum of $22,712.39 and granted an order restraining the appellants from picketing, was based on the grounds that the employees had been intimidated by the pickets, that there had been a tortious interference with the company's contractual relations with its employees and with the Department of Public Works, and that any picketing in furtherance of an illegal strike should be restrained.
In affirming the decision of the learned trial judge, subject to a reduction of the damages to the amount of $12,500, the Appeal Division of the Supreme Court of New Brunswick2 based its decision on the ground that the appellants had brought about a strike in contravention of the Labour Relations Act and had thus employed unlawful means to achieve their object so as to make them parties to an actionable conspiracy and liable for the damages flowing therefrom and subject to restraint by injunction from repetition of any acts in furtherance of such unlawful means.
In resting his decision on this ground, Bridges J.A., speaking on behalf of the Appeal Division, said:
In an action based on conspiracy we do not think it necessary for the plaintiff to prove that actual breaches of contracts took place. In the case at bar the plaintiff's employees were induced to abstain from work, which, in our view, is sufficient.
In our opinion, Gagnon, Blackman, Merloni and the other defendants who acted as pickets combined in inducing workmen of the plaintiff to refrain from working. Their object was to obtain recognition of the Unions without certification, which, in itself, was not unlawful but the means they used, a strike in violation of the Labour Relations Act, was and they have therefore no defence to the action. Any act done in furtherance of the unlawful means should, in our opinion, be restrained. The plaintiff was therefore entitled to an injunction against picketing in addition to damages.
A conspiracy consists, not merely in the intention of two or more but in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. The essence of the crime of conspiracy lies in the agreement itself which may be punishable, although no action has been taken pursuant to it, but the tort of conspiracy sounds in damages and is concerned only with the effect upon others of steps taken to carry out such an agreement. It is apparent from the language used by Merloni, coupled with the stoppage of work for which he, Blackman and Gagnon were primarily responsible, not only that they had formed a common design to obtain recognition for their uncertified unions, which would not of itself have been unlawful, but that they had agreed to achieve this end by organizing and creating a stoppage of work at the respondent's premises. In carying out this design, they enlisted the aid of the other appellants who thus became parties to the agreement. There can be no doubt that the means employed by the appellants resulted in damages to the respondent, but the question which bears further examination is whether or not these means were unlawful in such manner as to taint the whole agreement with the tortious quality necessary to give rise to liability.
Both the learned trial judge and the Appeal Division were satisfied that this stoppage of work constituted a strike which was in contravention of s. 22(1) of the Labour Relations Act and therefore unlawful, but as there is a wide difference between the parties to this appeal as to the true meaning to be attached to this subsection, it becomes necessary to analyze its provisions in the framework of the statute as a whole. Section 22 reads as follows:
22. (1) No employee in a unit shall strike until a bargaining agent has become entitled on behalf of the unit of employees to require their employer by notice under this Act to commence collective bargaining with a view to the conclusion or renewal or revision of a collective agreement and the provisions of section 20, or as the case may be, have been complied with.
(2) No employer shall declare or cause a lockout of employees while an application for certification of a bargaining agent to act for such employees is pending before the Board.
The conditions under which a bargaining agent may become entitled to require an employer by notice to commence collective bargaining are prescribed in s. 11 of the Act which reads as follows:
11. Where the Board has under this Act certified a trade union as a bargaining agent of employees in a unit and no collective agreement with their employer binding on or entered into on behalf of employees in the unit, is in force,
(a.) the bargaining agent may, on behalf of the employees in the unit, by notice require their employer to commence collective bargaining; or (b) the employer or an employers' organization representing the employer may, by notice, require the bargaining agent to commence collective bargaining;
with a view to the conclusion of a collective agreement.
That it is an essential prerequisite to certification of a bargaining agent that the Board shall have first determined whether or not the "unit" in respect of which application for certification is made is "appropriate for collective bargaining" appears from the following provisions of s. 8(1):
8. (1) Where a trade union makes application for certification under this Act as bargaining agent for employees in a unit, the Board shall determine whether the unit in respect of which the application is made is appropriate for collective bargaining and the Board may before certification, if it deems it appropriate to do so, include additional employees in, or exclude employees from, the unit, and shall take such steps as it deems appropriate to determine the wishes of the employees in the unit as to the selection of a bargaining agent to act on their behalf.
Some assistance as to the intent of the legislature can also be derived by reading s. 22(1) in conjunction with s. 20, bearing in mind that the former section provides inter alia that "No employee in a unit shall strike until … the provisions of section 20, or as the case may be, have been complied with." The latter section reads:
20. Where a trade union on behalf of a unit of employees is entitled by notice under this Act to require their employer to commence collective bargaining with a view to the conclusion or renewal or revision of a collective agreement, the trade union shall not take a strike vote or authorize or participate in the taking of a strike vote of employees in the unit or declare or authorize a strike of the employees in the unit, and no employee in the unit shall strike, and the employer shall not declare or cause a lockout of the employees in the unit, until
(a) the bargaining agent and the employer, or representatives authorized by them in that behalf, have bargained collectively and have failed to conclude a collective agreement; and either
(b) a Conciliation Board has been appointed to endeavour to bring about agreement between them and seven days have elapsed from the date on which the report of the Conciliation Board was received by the Minister; or
(c) either party has requested the Minister in writing to appoint a Conciliation Board to endeavour to bring about agreement between them and fifteen days have elapsed since the Minister received the said request, and
(i) no notice under sub-section (2) of section 27 has been given by the Minister, or
(ii) the Minister has notified the party so requesting that he has decided not to appoint a Conciliation Board. The respondent contends that the purpose and effect of s. 22(1) is to prohibit all employees from striking unless and until a bargaining agent has been certified to act on their behalf and until the collective bargaining and conciliation procedures established by the Act have failed.
On the other hand, it is argued on behalf of the appellants that the prohibition is only directed against employees who are members of a group on behalf of which application for certification has been made to the Board and that it is only effective during the time when those employees are waiting for the Board's decision.
In support of this contention it is urged that the words "no employee in a unit shall strike …" as used in s. 22(1) should be construed as meaning "no employee in a unit appropriate for collective bargaining shall strike", and that a unit on whose behalf an application for certification has been made is to be regarded as a "unit appropriate for collective bargaining". It is upon this basis that the appellants' counsel contends that the prohibition does not extend to the strike organized by them because at the time of the strike no application for certification had been made on behalf of the employees concerned.
It will accordingly be seen that it is of fundamental importance to determine the meaning which the legislature intended to be attached to the word "unit" as it first appears in s. 22(1), and in so doing it is necessary also to determine the purpose and function of this subsection as a part of the legislative scheme embodied in the statute.
The word "unit" is defined in s. 1(3) of the Act as follows:
1. (3) For the purposes of this Act, a "unit" means a group of employees, and "appropriate for collective bargaining" with reference to a unit, means a unit that is appropriate for such purposes whether it be an employer unit, craft unit, technical unit, plant unit, or any other unit and whether or not the employees therein are employed by one or more employers.
As the meaning attached to the words "appropriate for collective bargaining" by s. 1(3) is confined to their use "with reference to a unit" and as these words are not used at all in s. 22, it seems to me that the meaning attributed to them in this definition has no relevance in the context of s. 22(1). As has been seen, the opening words of s. 8(1) indicate that the question of whether or not a group of employees is appropriate for collective bargaining is a matter for the Board and in this regard the provisions of s. 55 appear to me to be significant. That section provides:
55. (1) If in any proceeding before the Board a question arises under this Act as to whether
* * *
(f) a group of employees is a unit appropriate for collective bargaining;
* * *
the Board shall decide the question and its decision shall be final and conclusive for all the purposes of this Act.
It seems to me, therefore, that when an application is made to the Board for certification, the "unit" on whose behalf it is made must be regarded for the purposes of this Act as simply being "a group of employees" until such time as the Board has determined that it is "a unit appropriate for collective bargaining". It is true that when the application is first made, the unit concerned is one which the applicant trade union is claiming to be "appropriate for collective bargaining" (see s. 6), but the whole scheme of the collective bargaining sections of the Act seems to me to contemplate that a "unit" cannot have the status of one which is "appropriate for collective bargaining" until the Board has decided the question.
In view of the above, and with the greatest respect for those who hold a different view, I am of opinion that when the Act is read as a whole its language gives no support to the contention that the legislature intended the word "unit" as first used in s. 22(1) to have the limited meaning of "a unit appropriate for collective bargaining" nor do I think that, for the purposes of this Act, "a group of employees" becomes "a unit appropriate for collective bargaining" simply because a trade union claims that it has that character when making application for certification under s. 6. I cannot, therefore, agree with the submission made on behalf of the appellants that the prohibition contained in s. 22(1) only applies to employees on whose behalf an application for certification is pending before the Board.
Insofar as this Act is designed to secure a greater measure of industrial peace to the public by encouraging collective bargaining and conciliation procedures rather than strikes as a method of resolving industrial disputes, the attainment of its purpose would, it seems to me, be gravely hampered if, as appellants' counsel contends, the effect of the language used in s. 22(1) is that in the Province of New Brunswick employees who ignore the Act can strike without offending against its provisions, and that those on whose behalf a bargaining agent has been appointed can strike under the circumstances outlined in s. 20 while those and only those whose application for certification is pending before and being held up by the Board are absolutely prohibited from striking between the time when the application is made and the time when it is granted or refused.
A consideration of s. 23 of the Act also appears to me to weigh heavily against the contention made on behalf of the appellants. This section reads:
23. A trade union that is not entitled to bargain collectively under this Act on behalf of a unit of employees shall not declare or authorize a strike of employees in that unit.
If effect were given to the construction sought to be placed on s. 22(1) by the appellants' counsel, it would mean, when read in conjunction with the last-quoted section, that the legislature intended to exercise no control whatever over strikes by employees who are not members of any trade union while prohibiting strikes by trade unions which have not been certified as bargaining agents. That the legislature should have intended this result seems to me to be inherently unlikely, having regard to the recognition accorded to trade unions by the other provisions of the Act.
It is further said, however, on behalf of the appellants that to read s. 22(1) as prohibiting all strikes by employees until a bargaining agent has been certified on their behalf is to attribute to the legislature the intention of creating one standard for the employee and another for the employer because s. 22(2) only prohibits "a lockout" while an application for certification is pending before the Board and the employer is left free to declare or cause a lockout at any earlier time, although, of course, after certification this right is restricted by ss. 20 and 21. This objection must be viewed in light of the fact that the Act provides an elaborate and workable procedure whereby employees may compel their employer to bargain collectively with them with a view to concluding a collective agreement as to terms and conditions of employment, whereas no such right and no such procedure is provided for the employer unless and until a bargaining agent has been certified at the instigation of his employees.
It must be emphasized that the only statute in question in this appeal is the Labour Relations Act of New Brunswick, and that this Court is not here concerned with the statutes existing in other provinces concerning labour relations which, in many cases, are differently framed and worded.
The regulation of a system whereby collective bargaining and conciliation procedures are to be exhausted before resorting to strikes appears to me to be one of the chief functions which this Labour Relations Act purports to accomplish, and I am unable to agree that by using the phrase "No employee in a unit shall strike …" instead of "No employee shall strike …", the legislature intended s. 22(1) to have the effect of relieving employees who disregard the Act from any obligation to make use of those procedures for which such elaborate provision is made elsewhere.
Adopting this view, I have concluded that the appellants organized, directed and participated in a cessation of work constituting a "strike" within the meaning of the Act on the part of a group of employees who were prohibited from striking by the terms of s. 22(1). The appellants Gagnon, Blackman and Merloni designedly and deliberately adopted this unlawful means of achieving their object, and for the reasons hereinafter specified I am of opinion that they, together with those who were persuaded to join their enterprise, must bear responsibility for any damage which ensued to the respondent.
Section 40 of the Act provides a penalty for breach of s. 22(1), and although it is true that "No prosecution for an offence under this Act shall be instituted except with the consent in writing of the Board" (s. 44(1)) this does not, in my view, alter the fact that s. 22(1) constitutes a mandatory prohibition enforceable by penalty if the Board deems it appropriate to consent to such method of enforcement.
In the case of Therien v. International Brotherhood of Teamsters3, Mr. Justice Sheppard of the British Columbia Court of Appeal had occasion to consider whether breaches of the Labour Relation Act of that province by the defendant constituted "illegal means" whereby the company there in question was induced to cease doing business with the plaintiff. In the course of his decision, Mr. Justice Sheppard said at p. 680:
In relying upon ss. 4 and 6 of the statute the plaintiff is not to be taken as asserting a statutory cause of action. The plaintiff is here founding upon a common law cause of action within Hodges v. Webb [1920] 2 Ch. 70 which requires as one of the elements that an illegal means be used or threatened. To ascertain whether the means was illegal enquiry may be made both at common law and at statute law.
When the Therien case4, reached this Court, Mr. Justice Locke, speaking on behalf of the majority of the Court, said at p. 280:
I agree with Sheppard J.A. that in relying upon these sections of the Act the respondent is asserting, not a statutory cause of action, but a common law cause of action, and that to ascertain whether the means employed were illegal inquiry may be made both at common law and of the statute law.
In light of these observations, it becomes unnecessary to embark upon the difficult exercise of determining whether or not a breach of s. 22(1) of the Labour Relations Act gives rise to a statutory cause of action because when inquiry is "made of the statute law" in the present case it discloses, as has been said, that the means here employed by the appellants were prohibited, and this of itself supplies the ingredient necessary to change a lawful agreement which would not give rise to a cause of action into a tortious conspiracy, the carrying out of which exposes the conspirators to an action for damages if any ensue therefrom. The only plea of conspiracy in this case is contained in para. 10 of the statement of claim which reads as follows:
10. In the alternative the Defendants wrongfully and maliciously conspired and combined amongst themselves to procure, cause and induce the employees of the Plaintiff to break their contracts of employment with the Plaintiff and to leave its service and to abstain from continuing therein.
I agree with Bridges J.A. that it is not necessary for the respondent to prove that actual breaches of contract took place in order to sustain the plea of conspiracy because the evidence supports the allegation that the appellants wrongfully conspired to procure, cause and induce the employees of the respondent to abstain from work. Although the wrongful means are not specifically alleged in the paragraph pleading conspiracy, all the ingredients of an unlawful strike are elsewhere alleged and the pleadings are sufficiently explicit to have made the appellants aware of the fact that the legality of the means which they employed to obtain recognition was being placed in issue.
Thomas Onno never entered an appearance, although his name appears in the notice of appeal to the Appeal Division as one of the appellants. However, as against him the damages awarded by the Appeal Division should be substituted for the amount fixed by the judge of first instance.
Onno and Roy Carr did not appeal to this Court, although named as parties appellant. There should, therefore, be no costs of this appeal as against them. Save for varying the amount of damages as against Onno, the appeal should be dismissed with costs.
Locke J.:—This is an appeal from a judgment of the Appeal Division of the Supreme Court of New Brunswick5 which, with a variation as to the damages to be awarded, affirmed the judgment of Ritchie J. at the trial. The respondent company was on July 15, 1958, engaged in the construction of a wharf for the Department of Transport in the Harbour of St. John, employing on the work some 190 men engaged as labourers, timbermen, carpenters, operating engineers, riggers and a number of office workers.
Some days previous, one Capone and the appellants Merloni, Blackman, Gagnon, and two men name Kaiser and Evans, called upon the superintendent of construction of the work, Gerald H. Lilly, asking that the company recognize certain unions which, they said, they represented. The names of the unions were not stated at that time. Lilly told them that he had no authority to deal with the matter but told them that other company officials would be in town on the following week when they could discuss the matter.,
On July 15 these men came again to the company's office, together with one Murray Stanton and some other official of the carpenters' union, and presented the same request to Lilly and J. A. Marshall, the construction manager of the company. They asked Marshall if the company would recognize their unions and, according to Lilly, when asked if they were certified by the Labour Relations Board, they said they were not but that they would produce cards of fifty per cent of the men if the company "would recognize them on that basis." According to Marshall, he informed them that they should be certified under the law and that the company would not recognize them or sign an agreement with them until that was done. Merloni said that the time would come when the company would have to recognize them "on our basis and there will be no discussion", which terminated the interview.
While there was no issue of any kind between the respondent and any of its employees as to wages, hours or any similar matters and nothing to indicate that the employees were not satisfied with the conditions as they were, on July 23 a picket line was established outside the site of the work organized and under the direction apparently of the defendants Gagnon, Blackman and Merloni, exhibiting placards on some of which there appeared the words "Operators, engineers and labourers on strike against Foundation Maritime Ltd." These placards were carried from time to time by the defendants Roach, O'Neill, Morrison, Blackman, Merloni, Michaelson, Onno, Hachey, Armstrong, Lundman and Grant. When the various employees other than the office staff came to work they were faced with this picket line and, in the result, did not enter the premises and the entire operation was brought to a halt, the work stoppage continuing for five days when an injunction in the present action was effective to stop further picketing and work was resumed. There is no evidence that there was any violence employed by the pickets Blackman and Merloni who were, apparently, in charge on the morning of July 23. When Cecil Bellefontaine, a workman employed on a hydraulic jack, was stopped, he was told by them that "there was a strike on and we could not go in to work." Bellefontaine said that he did not go through the picket line saying that "they erupt sometimes." He went back the following morning in a further attempt to go to work and was again stopped and said as to this that he was afraid to go through the picket line.
Arthur Neilson, who was working as a mechanic, endeavoured to go to work on July 23 and was stopped by three pickets who told him that "the company was on strike." He asked Gagnon what the strike was about and he said that they were on strike for recognition. Neilson told him there was no necessity of striking because if they went through the proper channels they would get recognition. He did not go through the picket line and explained this by saying:
Judging from the way that the pickets spoke if a man went through he would be in trouble.
He tried to go to work on the following morning and was again stopped.
By an order made on July 25, 1958, by Ritchie J. certain of the defendants who were engaged in the picketing and some persons who are not now defendants in the action were enjoined from watching, besetting or picketing the premises until July 30. A second order was made by Ritchie J. on July 30 naming the present appellants and continued the injunction until the trial.
It was shown by the evidence of the witness Lilly that on July 23 Gagnon and Blackman represented themselves as officers of the Operating Engineers' union and the International Teamsters' union, respectively. The identity of the union represented by Merloni is not shown.
That the respondent suffered substantial damage from the work stoppage is not and cannot on the evidence be disputed. The argument for the appellants, however, is that the evidence does not disclose a cause of action against the defendants or any of them. The Labour Relations Act of New Brunswick, R.S.N.B. 1952, c. 124, provides the means whereby a trade union may. be certified as a bargaining agent on behalf of employees such as those with whom this case is concerned. and, on their behalf, negotiate with the employer and enter into a collective agreement. It was shown at the trial that none of the unions claimed to have been represented by Capone, Merloni, Blackman and Gagnon had been certified as bargaining agents for any of the employees concerned. Whether any of such employees were members of these unions on July 23, 1958, was not shown, the defendants electing not to give any evidence at the trial.
The word "strike" is defined by s. 1 of the Act to include:
a cessation of work or refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding.
and the expression "to strike" is defined to include:
to cease work, or to refuse to work or to continue to work, in combination or in concert or in accordance with a common understanding.
Section 1(3) reads in part:
For the purposes of this Act, a "unit" means a group of employees.
Section 22(1) reads:
No employee in a unit shall strike until a bargaining agent has become entitled on behalf of the unit of employees to require their employer by notice under this Act to commence collective bargaining with a view to the conclusion or renewal or revision of a collective agreement and the provisions of section 20 (which provides for the appointment of a conciliation board), or as the case may be, have been complied with.
Section 23 reads:
A trade union that is not entitled to bargain collectively under this Act on behalf of a unit of employees shall not declare or authorize a strike of employees in that unit.
Section 39 provides, inter alia, that every trade union that declares or authorizes a strike contrary to the Act is guilty of an offence and liable to a penalty, and s. 40 provides, inter alia, that every person who does anything prohibited by the Act is liable to a fine.
The purpose of this statute and others of the same nature in Canada is the prevention of strikes and lockouts and the maintenance of industrial peace. As none of the unions said to be represented had been certified or, so far as the evidence in this case goes, authorized in any manner to act on behalf of any of the employees, the attitude taken by the officers of the respondent on July 15 was correct.
It is apparent that Merloni, Gagnon and Blackman had decided to ignore the provisions of the Act and to endeavour to compel the respondent to negotiate with their unions by bringing about a stoppage of work. The remaining defendants were apparently duped by these three into taking part in bringing about that stoppage.
Ritchie J. was of the opinion that the cessation of work was a strike and was unlawful as being contrary to the provisions of s. 22(1) of the Act; that to induce and persuade the employees not to report for work was a tortious interference with the contractual relations existing between the plaintiff and its employees; that there was evidence that the employees Neilson and Bellefontaine were intimidated by the picket line and thus prevented from reporting for work, and that the picketing itself in support of an illegal strike was unlawful. He awarded damages in the sum of $22,712.39.
Bridges J.A., who delivered the judgment of the Appeal Division, agreed that there was a strike within the meaning of the Act. He was of the opinion that the evidence did not support the charge of intimidation but considered that there was evidence that the defendants had conspired together to injure the respondent in its trade or business and, further, that as the strike itself was unlawful the picketing was unlawful. He, however, considered that the damages awarded were excessive and they were reduced to $12,500.
There was at the time in question no statute in New Brunswick such as the Trade-unions Act, R.S.B.C. 1948, c. 342, which was considered in the decision of this Court in Williams v. Aristocratic Restaurants (1947) Ltd.6 In that case the trade union had been certified as the bargaining authority for the employees of one of the respondent's five restaurants, but did not represent any of the employees of the other restaurants which were operated in Vancouver. The conduct complained of was to have men walk back and forth on the sidewalk in front of each of the five restaurants, bearing a placard to the effect that the employees did not have an agreement with the union. It was held in this Court, reversing the judgment of the Court of Appeal, that this conduct was permissible under the provisions of ss. 3 and 4 of the Trade-unions Act.
In the present case the statement exhibited in the placards carried by Merloni et al. on the morning of July 23 that there was a strike was untrue, to the knowledge of all of the defendants who took part in the picketing. So far as the evidence goes, at the time the picketing commenced