Williams v. Aristocratic Restaurants

Williams v. Aristocratic Restaurants
Collection
Supreme Court Judgments
Date
1951-06-27
Report
[1951] SCR 762
Judges
Rinfret, Thibaudeau; Kerwin, Patrick; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Estey, James Wilfred; Locke, Charles Holland; Cartwright, John Robert
On appeal from
British Columbia
Subjects
Labour law
Decision Content
Supreme Court of Canada
Williams v. Aristocratic Restaurants, [1951] S.C.R. 762
Date: 1951-06-27
Robert Williams et al (Defendants) Appellants;
and
Aristocratic Restaurants (1947) Ltd. (Plaintiff) Respondent.
1951: February 13, 14, 15; 1951: June 27.
Present: Rinfret C.J. and Kerwin, Rand, Kellock, Estey, Locke and Cartwright JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Picketing—Labour—Certified union having no members among employees—No strike—Patrolling with truthful placards—Whether criminal offence—Whether common law nuisance—Trade-unions Act, R.S.B.C. 1948, c. 342, ss. 3, 4—Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, c. 155—s. 501 of the Criminal Code. A trade union, certified pursuant to the Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, c. 155, as the bargaining authority for the employees of one of the employer's five restaurants, known as unit No. 5, failed to negotiate a collective agreement with the employer. Conciliation proceedings were then taken pursuant to the Act but the report made thereunder was rejected by the union. Although under the Act the union remained the bargaining agent for unit No. 5, it lost all its members among the employees therein; and none of the employees in unit 6 and 7 was a union member. The union picketed these three restaurants by having two men walk back and forth on the sidewalk in front of them each bearing a placard to the effect that the employer did not have an agreement with the union. No strike vote was taken among the employees and in fact no strike occurred. The action by the employer to enjoin this picketing and for damages was dismissed by the trial judge but was maintained by a majority in the Court of Appeal for British Columbia.
Held, reversing the judgment appealed from and restoring the judgment at the trial, that the picketing did not amount to a criminal offence or to a common law nuisance. It was authorized by s. 3 of the Trade-unions Act, R.S.B.C. 1948, c. 342 and was unaffected by the provisions of the Industrial Conciliation and Arbitration Act.
Per the Chief Justice and Locke J. (dissenting): The conduct complained of constituted a private nuisance which should be restrained by injunction.
APPEAL from the judgment of the Court of Appeal for British Columbia[1] , reversing, Robertson J.A. dissenting, the decision of the trial judge which had dismissed the action to enjoin the picketing and for damages.
John L. Farris K.C. for the appellants.
David A. Freeman for the respondent.
The dissenting judgment of the Chief Justice and Locke J. was delivered by:—
LOCKE J.:—In this action the respondent company, the operator of five restaurants in the City of Vancouver, sought to restrain the appellant union, its officers, servants and agents from watching, besetting and picketing its premises; for a declaration that the appellants had unlawfully combined to injure the respondent in its trade by illegal means, that they had created a nuisance in and adjacent to the said premises, and for damages. On the ex parte application of the respondent supported by affidavits, Wilson, J. granted an interim injunction restraining the defendants from watching, besetting or picketing the premises until further order. On the application of the appellants to set aside the interim injunction supported by affidavits filed on the defendant's behalf, the matter was by arrangement treated as a motion for judgment and Wilson, J., while granting an injunction restraining the defendants from:—
establishing a line about the plaintiff's places of business and from stating to prospective patrons that there is a picket line about the said places of business,
dismissed the other claims advanced in the action. No oral evidence was taken and there was no cross-examination upon any of the affidavits.
By the judgment of the Court of Appeal[2] which reversed this finding, it was directed that judgment be entered in favour of the respondent:—
restraining and enjoining the defendants from watching, besetting and picketing any of the places of business of the plaintiff and from engaging in any activity intended to restrict or limit the plaintiff's business and by directing that the plaintiff recover from the defendants damages to be assessed and by directing that the plaintiff recover from the defendant the costs of the trial and of the assessment of damages.
The action raises questions of great importance affecting the relations of employers of labour and trade unions and their members in the Province of British Columbia and it is necessary in determining them that there be a clear appreciation of the facts disclosed by the material.
The appellant union is a trade union within the meaning of that term as used in the Industrial Conciliation and Arbitration Act (R.S.B.C. 1948, c. 155). Under the provisions of that Statute the Labour Relations Board (B.C.) on September 21, 1949, certified the union as the bargaining authority for all the employees in one of the respondent's restaurants referred to as Unit No. 5 at 2501 Granville Street in Vancouver, except those excluded by the Act. Following this, negotiations were carried on between the union and the employer for a collective agreement without result. The Board then acting under the provisions of the Statute appointed a Conciliation Officer to confer with the parties, and, no agreement being reached, a Board of Conciliation was appointed consisting of a chairman and one nominee of the employer and one of the employees. This Board met and the union presented what it said was a standard form of agreement which the employer had declined to sign. The chairman and the employer's nominee in a majority award recommended that an agreement be made between the parties, differing substantially from that thus proposed by the union. In place of a clause designated a closed shop clause by the majority but a union shop clause by the representative of the employees, the agreement recommended by the majority would embody a preferential hiring clause. The award recited that the union's representative had stated that all the members of the union who voted at the time of certification were no longer in good standing and that the union was unable to supply the necessary help, and further that, as there were no present members of the union employed in the unit, a maintenance of membership clause would have no value. It further stated that the wage rates requested by the union applied only to some twenty out of seven hundred restaurants in Vancouver and that, as the company had operated at a loss for the past year the existing rates should be continued, and in other respects recommended variations in the proposed agreement. The employees' representative delivered a minority report recommending that the standard agreement should be executed.
According to an affidavit filed on the motion to dissolve the injunction made by A. R. Johnstone, the International Vice-President and General Organizer of the union, he had some further negotiations with the employer following the award of the Conciliation Board. Referring to a conversation which he had with Mr. Freeman, the solicitor for the respondent, he said that he informed the latter that the local union, having rejected the award:—
the next natural action of Local 28 would be to request that Aristocratic operations be placed on the unfair list of the Vancouver District Trades and Labour Council,
and that if this was done the trade unionists and their friends in the City of Vancouver would be requested not to patronize the Aristocratic operations and that:—
if the request did not have the effect that we hoped and expected that we might use the medium of picketing to bring the matter more vividly to the attention of the trade unionists in Vancouver. According to Johnstone, not having heard from the employer after a lapse of some twelve days, he:—
arranged to engage in picketing activity as of May 15th.
What followed thereafter is described in the affidavits filed on behalf of the respondent on the motion for the interim injunction. On the morning of May 15 two men commenced to walk back and forth in front of the two restaurants of the respondent designated as Units Nos. 6 and 7 bearing placards which read:—
Aristocratic Restaurants have no union agreements with Hotel and Restaurant Employees' International Union, Local 28 affiliated with Vancouver and New Westminster Trades and Labour Council.
The union was not the bargaining representative of the employees in either of these restaurants. In conversation with the men engaged in what was obviously regarded both by the union and the employer as picketing, Alder Hunter, the respondent's manager, was informed that they were members of the Seamen's Union and had been told that the picketing would continue until 10:00 at night, that there were two shifts of pickets and that they were being paid at the rate of one dollar per hour for their work. Later in that day the pickets left Unit No. 7 and moved to Unit No. 5 and thereafter from 9:00 a.m. until 10:00 p.m. Units Nos. 5 and 6 were picketed on May 16 and 17 and on May 18 until the interim injunction was granted. There is some dispute as to the activities of the so-called pickets. Walter Jansen, the manager of the respondent's Unit No. 6, stated that he had observed the men talking to people who were apparently intending to enter the restaurant some of whom turned and went away, and on one occasion these pickets were joined by from one to three other persons who walked with them for short intervals. Another employee of Unit No. 6 said that on May 15 she had heard the pickets speaking to people coming to the door of the restaurant using words to the following effect :—
You are not supposed to go in there. This is a picket line,
and that the pickets commenced to accost customers in this fashion at about 8:00 p.m. that evening and a substantial number of the people approached turned away. George Cooke, one of the seamen employed by the union, however denied that he had told anyone that they were not supposed to go in to the restaurant, or words to that effect, and said that the only satement he had made was "This is a picket line," except that he had answered questions directed to him by persons who first spoke to him. An affidavit by George Hotra, one of the other seamen who accompanied Cooke, was to the same effect and both of these men swore that their actions in walking back and forth along the sidewalk did not constitute an impediment to the flow of pedestrian traffic.
Wilson, J. considered that there was no evidence of a conspiracy to injure the plaintiff but, being of the opinion that to state to a man "This is a picket line," suggested a state of siege or even of peril in the act of crossing the line and was unlawful, he granted an injunction against a repetition of such acts or of any acts of intimidation or coercion. In rejecting the claim of the respondent that the other actions of the so-called pickets amounted to a nuisance, he said that to establish this it would be necessary to prove not merely that these persons obstructed traffic but that they did so in such a way as to cause the plaintiff damage and that neither had been proved. The learned trial judge was further of the opinion that the actions of the appellants in the present matter, with the above noted exceptions, were in any event permitted by the provisions of section 3 of the Trade-unions Act, R.S.B.C. 1948, c. 342, which reads as follows:—
No such trade-union or association shall be enjoined, nor shall any officer, member, agent, or servant of such trade-union or association or any other person be enjoined, nor shall it or its funds or any such officer, member, agent, servant, or other person be made liable in damages for communicating to any workman, artisan, labourer, employee, or person facts respecting employment or hiring by or with any employer, producer, or consumer or distributer of the products of labour or the purchase of such products, or for persuading or endeavouring to persuade by fair or reasonable argument, without unlawful threats, intimidation, or other unlawful acts, such last—named workman, artisan, labourer, employee or person, at the expiration of any existing contract, not to renew the same with or to refuse to become the employee or customer of any such employer, producer, consumer, or distributor of the products of labour.
O'Halloran, J.A. expressed the view that there was nothing either in section 3 or section 4 of the Trade-unions Act which justified the form of picketing patrol employed. Dealing with a different aspect of the matter, he considered that any immunities in respect to picketing granted by the Trade-unions Act, assuming what took place here came within the meaning of that statute, were suspended by the Industrial Conciliation and Arbitration Act until a strike vote of the employees had been taken under section 33 of that Act and the majority of the employees had voted to strike and that any such activities were prohibited until this had been done. Since the majority report of the Conciliation Board had never been submitted to the employees for their acceptance or rejection, he considered that no right to picket by anyone had arisen at the times in question and could not arise in any event until the majority vote of the employees was first obtained favouring the strike. Sidney Smith, J.A. did not consider that the matter was to be determined under the provisions of the Industrial Conciliation and Arbitration Act but, considering that at common law picketing is watching and besetting and as such illegal, said that any justification for it must be found in some statute and that there was no such justification in the Trade-unions Act. Robertson, J.A. who dissented, found that there was no nuisance committed and agreed with the learned trial judge that there was no evidence of a tortious conspiracy and that the matter was not affected by the provisions of the Industrial Conciliation and Arbitration Act. In his opinion, section 3 of the Trade-unions Act applied and was a defence to the action.
In my opinion, the decisive point in the case is as to whether the actions authorized by the defendants amounted in law to a nuisance causing damage to the respondent. I think it is unnecessary for the dispostion of the matter to consider whether there was evidence of a conspiracy to injure the respondent of the nature referred to in Crofter v. Veitch[3] . In the absence of other evidence than that contained in the material, if there was a nuisance it was, in my opinion, a private one. The question of nuisance or no nuisance is one of fact but as the matter was disposed of upon affidavit evidence alone, we are in an equally good position to determine that question as was the learned trial judge.
A private nuisance is a civil wrong and in the exercise of the equitable jurisdiction of the courts its continuance may be restrained by injunction whenever substantial dam- age might be recovered in respect of it by an action at law (Crump v. Lambert[4] ). That the establishing of the patrol of pickets resulted in damage to the respondent is established by the affidavits. It is, I think, of some significance that in the reasons for judgment at the trial it is said that the actions of the pickets who warned prospective patrons that "this is a picket line" were unlawful and that to say this suggested a state of siege, an element of wrongfulness or even of peril in the act of crossing the line. The learned trial judge said further as to this:—
The words, "This is a picket line" are words of intimidation. Pickets have no right to establish a line about an employer's place of business. This action of the picketers was unlawful and the repetition of similar acts and the doing of any acts of intimidation or coercion are enjoined.
The formal judgment entered following these reasons restrained the appellants from, inter alia:—
establishing a picket line about the plaintiff's places of business and from stating to prospective patrons that there is a picket line about the said places of business.
There is no appeal against this portion of the judgment and indeed in the appellant's factum it is said that they had never asserted any right to so conduct themselves and never objected to an injunction in that form.
It is abundantly clear from the affidavit of Johnstone above referred to that he at least considered that the establishment of the patrols outside of the respondent's premises was "picketting activity" intended apparently, to adopt his language, to be carried on for the purpose of bringing the matter more vividly to the attention of the trade unionists in Vancouver. To trade unionists and their friends and indeed, in my opinion, to the vast majority of the people in the City of Vancouver, the establishment of the patrol, with two men constantly walking up and down outside the premises bearing these placards, would be regarded as a picket line in exactly the same manner as if the placards declared that it was a picket line, or the men carrying them told prospective customers or other persons that it was a picket line. Looking at the matter from a practical standpoint I am unable, with respect, to appreciate the distinction. In considering whether or not this conduct amounted to a private nuisance, the intention or purpose of those responsible for the conduct of the so—called pickets is to be borne in mind. In Clerk and Lindsell on Torts, 10th Ed. p. 544, the learned authors essay to define nuisance thus:—
Nuisance is an act or omission which is an interference with, disturbance of or annoyance to a person in the exercise or enjoyment of (a) a right belonging to him as a member of the public, when it is a public nuisance, or (b) ownership or occupation of land or of some easement, quasi-easement or other right used or enjoyed in connection with land, when it is a private nuisance.
Salmond on Torts, 10th Ed. p. 221, says:—
The generic conception involved in nuisance may, however, be found in the fact that all nuisances are caused by an act or omission whereby a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land; whether by physical damage to the land or by other interference with the enjoyment of the land or with his exercise of an easement, profit or other similar right or with his health, comfort or convenience as the occupier of such land.
As to the nature of the damage sufficient to support the action, it is said that any such interference with the physical comfort or convenience of persons occupying the premises is a sufficient interference with the beneficial use of them upon which to found the claim. In Pollock, 14th Ed. pp. 322, 323, the learned author says that in the modern authorities nuisance includes all injuries to an owner or occupier in the enjoyment of the property of which he is in possession, and quotes Blackstone's phrase that it is "anything done to the hurt or annoyance of the land, tenements, or hereditaments of another" done without any lawful ground of justification or excuse. These statements by leading text book writers appear to me to accurately state the result of the authorities.
In determining whether or not the conduct of the appellants should be so classified, little assistance is to be obtained from the authorities. In Lyons v. Wilkins[5] , there are, however, some general statements of the law which are of assistance. Lindley, M.R. at p. 267, referring to the expression "watching and besetting" which appears in section 7 of the Conspiracy and Protection of Property Act 1875, said that such conduct seriously interferes with the ordinary comfort of human existence and ordinary enjoyment of the house beset and would support an action at common law, referring to Bamford v. Turnley[6] ; Broder v. Saillard[7] ; and Walter v. Selfe[8] . Chitty, L.J. at 271, expressed the opinion that the conduct of the so-called pickets who use no violence or intimidation or threats constituted a nuisance and that:—
To watch or beset a man's house for the length of time and in the manner and with the view proved would undoubtedly constitute a nuisance of an aggravated character.
In Quinn v. Latham[9] , Lord Lindley said that picketing is a distinct annoyance and if damage results is an actionable nuisance at common law, but that if confined merely to obtaining or communicating information it was rendered lawful by section 7 of the Act above mentioned.
If the matter be considered as if the rights of the parties were to be determined by the common law unaffected by statute, I think it to be clear that the conduct of the appellants amounted to a private nuisance. It is not, I think, oversimplifying the matter to consider whether such conduct would be restrained by injunction if the picketing was carried out at the private house of an employer or other person instead of at business premises. If, by way of illustration, a trade union formed for the purpose of advancing the interests of domestic servants were to organize patrols to walk up and down before the residence of a private individual who employed a servant who did not belong to the union, bearing placards stating that the individual, naming him, did not employ a member of the union, or that the person employed was not a member of the union, it cannot be doubted that such an interference with the peaceful enjoyment of his home by the owner would be restrained by injunction. The expression "watching and besetting" in section 501 of the Criminal Code and in section 7 of the Conspiracy and Protection of Property Act is not defined in either statute, and by that name does not appear to have been a criminal offence at common law. "Watching", as pointed out by Pallas, C.B., in Rex. v. Wall[10] , implies something more continuous and less temporary than "merely attending" within the meaning of that expression in the Trade Disputes Act 1906, s. 2(1). To conduct such a continuous patrol outside a man's house would, in my view, fall within the meaning of that expression. The legal meaning to be assigned to the word "besetting", originally a military term, appears to me to be unsettled. It is not, however, necessary that the conduct complained of should fall within the meaning of those terms as used by Lindley, M.R. in Lyons' case above referred to. To have one or more men parading up and down outside the owner's property hour after hour bearing placards with statements of this nature, however truthful, would be, in my opinion, such an interference with the comfort and convenience of the occupier of the land as a court would restrain by injunction.
In the case of business premises the pickets patrolling outside of the employer's premises, though merely carrying placards stating that the Aristocratic Restaurants had no agreements with the union, continuing parading throughout the day, constituted, in my opinion, a picket line and would be understood as such by the general public including members of trade unions and was intended to be such by the officers of the union, as indicated by the affidavit of Mr. Johnstone. The effect of such a picket line and the effect which it was intended to produce would be to drive away customers from the respondent's premises, both members of trade unions and their friends who would not cross a picket line and others who, seeing such a line established, would be apprehensive of crossing it, and also people who might consider that their own business or professional interests would be jeopardized by patronizing the restaurants under the eyes of the pickets. I think that, as in the case of a private house, this continuous watching of the respondent's premises by a patrol conducted in the manner described in the material was at common law a private nuisance.
The terms of section 3 of the Trade-unions Act of British Columbia are as above stated. The statute in substantially its present form was first enacted by the Legislature of British Columbia by chapter 66 of the Statutes of 1902, following the decision of the House of Lords in Taff Vale Railway Company v. Amalgamated Society of Railway Servants[11] , and presumably in consequence of it. Section 3 by its terms exempts a trade union, its officers, agents or servants from liability for communicating facts respecting employment or hiring by or with any employer to "any workman, artisan, labourer, employee or person." I think it unnecessary to decide whether the "person" referred to is to be construed ejusdem generis with the words immediately preceding it, as to which there has been disagreement in decisions of the courts of British Columbia. While that portion of the section which excludes liability for "persuading or endeavouring to persuade by fair or reasonable agreement without unlawful threats, intimidation or other unlawful acts" such persons "at the expiration of any existing contract" does not affect the present matter, where there had been no contract, I think the concluding portion of the section reading:
to refuse to become the employee or customer of any such employer, producer, consumer, or distributor of the products of labour.
applies. Section 4 reads:—
No such trade-union or association, or its officer, member, agent, or servant, or other person, shall be enjoined or liable in damages, nor shall its funds be liable in damages, for publishing information with regard to a strike or lockout, or proposed or expected strike or lockout, or other labour grievance or trouble, or for warning workmen, artisans, labourers, or employees or other persons against seeking, or urging workmen, artisans, labourers, employees, or other persons not to seek, employment in the locality affected by such strike, lockout, labour grievance or trouble, or from purchasing, buying, or consuming products produced or distributed by the employer of labour party to such strike, lockout, labour grievance or trouble, during its continuance.
If the appellants were justified in establishing and maintaining the picket line here complained of, the justification must be found in this legislation. While it was true that none of the employees of the respondent were members of the appellant union, it still retained its status as the bargaining authority of the employees of Unit No. 5 under the provisions of the Industrial Conciliation and Arbitration Act. The majority award of the Board of Conciliation was unacceptable to the union and in its capacity as bargaining representative it maintained the attitude that the standard form of agreement should be signed by the employer. I think this was a labour grievance within the meaning of that expression where used in section 4. While the affidavit of Johnstone, in which he described the reasons that led him to instruct the picketing, stated the reason as being that, as the union had standard agreements with some twenty restaurant operations in the City of Vancouver where the wage rates were considerably above those paid by the respondent and the operators of these had made representations to the union, saying that their agreements requiring them to pay a higher wage placed them at a disadvantage in competition with non-union operators:—
and that to protect the union operators and to protect the wage rates of the employees in the union shops, we were obligated to bring to the attention of the trade unionists and their friends in Vancouver the status of the various operations of the plaintiff company.
and fails to state that they were endeavouring to advance the interests of those employees of the respondent whose bargaining representative the union was, I think it should be taken that this was one of the union's reasons for the course of action followed.
Sections 3 and 4, while exempting unions, their officers and servants from liability for communicating information of the nature described for the defined purposes, makes no attempt to define the manner in which this may be done. The British Columbia Act was followed in 1906 by the enactment in England of the Trade Disputes Act. Section 2 of that Act provided that it should be lawful for one or more persons acting on behalf of a trade union to attend "at or near a house or place where a person resides or works or carries on business or happens to be" if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working." Neither sections 3 or 4 of the British Columbia Act contain the above quoted language but I think, in order to give the sections a reasonable interpretation, they should be construed as if they were included. While the statements contained on the placards carried by the pickets conveyed certain information "respecting employment or hiring by the respondent" and the statements were true, to convey the information in the manner adopted is not, in my opinion, authorized by the statute. The language of the sections is not capable of interpretation as meaning that such information might be conveyed in a manner which would be at common law a private nuisance. Very clear language indeed would be required to justify any such invasion of the common law rights of employers and none such is to be found, in my judgment, in the Trade-unions Act. I think the injunction granted by the Court of Appeal should be continued and the appeal dismissed with costs. In the view that I take of this appeal, it is unnecessary to consider the other questions which were so fully and ably argued by counsel for both parties.
The judgment of KERWIN and Estey, JJ. was delivered by:
KERWIN J.:—The respondent, Aristocratic Restaurants (1947) Ltd. operates five restaurants in Vancouver known as units 5, 6 and 7. It is the plaintiff in an action in the Supreme Court of British Columbia and the defendants appellants are Robert Williams and D. P. Morrison, on behalf of themselves and all others, members of Hotel and Restaurant Employees' International Union, Local 28, and as officers and trustees of the said local, and the local itself. Williams and Morrison are respectively President and Secretary of local 28. An ex parte injunction having been granted by Wilson J., a motion before him for its dissolution was by consent treated as the trial of the action upon the pleadings and the affidavits filed. The result of that trial was as follows: (1) An injunction was granted restraining the establishing of a line about the respondent's places of business and from stating to prospective patrons that there is a picket line about the said places of business: (2) The respondent's claim to a perpetual injunction restraining the appellants and each of them, their servants and agents, from watching, besetting and picketing any of the restaurant units operated by the respondent in the City of Vancouver was dismissed. (3) The respondent's claim to a declaration that the appellants did unlawfully combine, conspire and agree with each other and others wilfully together to injure the respondent in its trade, and to advance their own interests by illegal means and to watch, beset and picket the places of business of the respondent with the intention of compelling the respondent to enter into an agreement with them, was dismissed: (4) The respondent's claim to a declaration that the appellants, their, and each of their servants or agents, have unlawfully injured the respondent in its trade, by creating a nuisance in and adjacent to the premises occupied by the respondent at the City of Vancouver, and by watching, besetting and picketing the respondent's premises was dismissed: (5) The respondent's claim to damages from the appellants was dismissed: (6) Each party was ordered to bear his own costs.
In the Court of Appeal[12] , Robertson J. A. would have dismissed the appeal but the majority, consisting of O'Halloran J.A. and Sidney Smith J.A. allowed the appeal with costs and the order made was that judgment be entered in favour of the respondent restraining and enjoining the appellants from watching, besetting or picketing any of the places of business of the respondent and from engaging in any activity intended to restrict or limit the respondent's business, and that the respondent recover from the appellants damages to be assessed, and that the respondent recover from the appellants the costs of the trial and of the assessment of damages. From that judgment the present appeal is taken.
The Court of Appeal and the trial judge do not differ as to the facts as shown by the affidavits. On September 21, 1949, pursuant to the British Columbia Industrial Conciliation and Arbitration Act, R.S.B.C. 1948, c. 155, hereafter referred to as the Conciliation Act, the local union was certified by the Provincial Labour Relations Board as bargaining agent for the employees of respondent's unit 5. Thereupon the local and the respondent entered into negotiations with a view to reaching an agreement concerning rates of pay and conditions of service in that unit. Upon the failure of these negotiations and following the procedure laid down in the Conciliation Act, a Board of Conciliation was appointed to try to negotiate an agreement and, failing that, to recommend terms upon which the local and the respondent should agree. No agreement was reached, and in February, 1950, majority and minority recommendations of the Board were issued. The union did not accept the majority report, nor did it hold a strike vote amongst its members who were employees in unit 5, as provided for by section 31 of the Conciliation Act and in fact no strike occurred. Either because the employees dropped their union membership, or because they resigned and were replaced by non-union workers, by May 15, 1950, no employee of unit 5 was a member of the local. While by virtue of the first sentence in subsection 7 of section 7 of the Conciliation Act, the Board might at any time cancel the certification of the union, if it was satisfied that the union had ceased to be a labour organization or that the employer had ceased to be the employer of the employees in unit 5, neither of these conditions existed. However, the second sentence of the subsection applied, by which the Board might cancel the certification of the union, but only after the expiration of ten months from its date, if the Board were satisfied that the union had ceased to represent the employees in the unit. As that period had not expired at the relevant date, the union continued to be the bargaining agent for unit 5. As to units 6 and 7, not one of the workmen therein was a union member.
On May 15, 1950, persons employed and paid by the local, and therefore its agents, commenced to picket not only unit 5 but also units 6 and 7. At unit 6 two men walked back and forth in front of the restaurant each carrying a placard bearing these words "Aristocratic Restaurants have no union agreements with Hotel and Restaurant Employees' International Union, Local 28, affiliated with Vancouver and New Westminster Trades and Labour Council." At the same time the picketers accosted prospective customers and said to them: "You are not supposed to go in there. This is a picket line", or merely, "This is a picket line". Units 5 and 7 were also picketed by two men, in each case, but they did not address any words to prospective customers. As a result of the picketing the respondent suffered damage through a falling off in its business.
Upon these facts the appellants admit they were not justified in establishing a picket line about respondent's place of business and in stating that there was such a line; that is, the admission is that the statement combined with the picketing was unlawful and not that peaceful picketing per se was unlawful. Reading in that way what I have described as (1) in the trial judge's order, no question arises as to its propriety. On the other hand, the third item in that order is not now disputed by respondent, that is, that there was no evidence of unlawful conspiracy on the part of the appellants. With these two clauses out of the way there still remain to be determined important questions touching the rights of labour unions and employers of labour in British Columbia.
So far as the criminal law is concerned, the matter is dealt with by section 501 of the Criminal Code, R.S.C. 1927, chapter 36, the relevant part of which, as amended by section 12 of chapter 47 of the Statutes of 1934, reads as follows:—
501. Every one is guilty of an offence punishable on indictment or on summary conviction before two justices and liable on conviction to a fine not exceeding one hundred dollars, or to three months' imprisonment with or without hard labour, who, wrongfully and without lawful authority, with a view to compel any other person to abstain from doing anything which he has a lawful right to do, or to do anything from which he has a lawful right to abstain,
***
(f) besets or watches the house or other place where such other person resides or works, or carries on business or happens to be;
(g) attending at or near or approaching to such house or other place as aforesaid, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section.
Since the appellants are not charged with having committed an offence, we are not directly concerned with this section but it is important to note that one who besets or watches within clause (f) with a view to compelling any other person to abstain from doing anything which he has a lawful right to do, or to do anything from which he has a lawful right to abstain, is guilty of an offence if he does so wrongfully and without lawful authority. In Reners v. The King[13], it was decided that such actions were wrongful and without lawful authority if they amounted to a nuisance or to a trespass or if those engaged constituted an unlawful assembly. That was before clause (g) was added by the 1934 amendment although, as appears at p. 505, because of the facts in that case, it would have had no application.
By chapter 111 of the Revised Statutes of British Columbia, 1948, the civil law of England as it existed on November 19, 1858, if not inapplicable from local circumstances is in force in the province but modified by all legislation having the force of law. The position in England as of 1858 was that the Statute of Labourers and the Com- bination Acts had been repealed in 1825 although the enactment of that year left unrepealed that part of the common law under which it was generally held at the time that the combination or agreement to alter conditions of work was a conspiracy because it was a combination in restraint of trade. This statute repealed one of the preceding year which had been more helpful to trade unions and workmen than the Act of 1825. Of course, the various English statutes subsequent to 1858 never were in force in British Columbia.
The English Trade Disputes Act of 1906 amending the 1875 Conspiracy and Protection of Property Act was anticipated in British Columbia in some respects by the Trade unions Act chapter 66 of 1902, which with immaterial verbal changes is now R.S.B.C. 1948, chapter 342. The present Act consists of four sections, of which the first merely gives the short title, and in view of the result reached we are not concerned with section 2 which deals with the nonliability for damages of trade unions and their trustees for any wrongful act in connection with any strike,