Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co.

Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co.
Collection
Supreme Court Judgments
Date
1959-01-27
Report
[1959] SCR 271
Judges
Rand, Ivan Cleveland; Locke, Charles Holland; Cartwright, John Robert; Abbott, Douglas Charles; Judson, Wilfred
On appeal from
British Columbia
Subjects
Transportation
Decision Content
Supreme Court of Canada
Patchett & Sons Ltd. v. Pacific Great Eastern Railway Co., [1959] S.C.R. 271
Date: 1959-01-27
A. L. Patchett & Sons Ltd. Appellant (Plaintiff);
and
Pacific Great Eastern Railway Company (Defendant) Respondent.
1958: May 14, 16; 1959: January 27.
Present: Rand, Locke, Cartwright, Abbott and Judson JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Railways—Carriage of goods—Statutory duty of railway—Duty to supply cars and pull loaded cars from siding—Union picketing shipper's nonunion plant—Refusal of railway's employees to cross picket line—Damages to shipper—Whether breach of statutory duty—Nature of duty—The Railway Act, R.S.B.C. 1948, c. 285, ss. 203, 222.
The plaintiff owned and operated a planing mill on lands adjoining the right of way of the main line of the defendant company at Quesnel, British Columbia. A spur line, the switch for which was on the main line, led onto the plaintiff's premises. The International Woodworkers of America, a union of loggers and mill workers, called a strike in the area and, although none of the plaintiff's employees were members of the union, placed pickets at or around the switch used for the spur line. The members of the railway unions were ordered by their officers not to cross the picket lines, and as a result the railway employees refused to spot cars and to pull loaded cars on the siding as required by the plaintiff. They also refused to accept or sign bills of lading for loaded cars.
The plaintiff sued the defendant company for damages alleging failure on the part of the defendant to perform its statutory duties as set forth in ss. 203 and 222 of the Railway Act. The action was maintained by the trial judge, who found that it was not fear of violence from the strikers but rather the orders given by the railway union officers that caused the railway employees to refuse to discharge their duties and those of the defendant company. The company had failed to discharge its statutory duty. This judgment was reversed by a majority in the Court of Appeal.
Held (Locke and Cartwright JJ. dissenting): The action must fail. No liability attached to the defendant railway company.
Per Rand J.: The duty imposed by s. 203(1) (c) of the Railway Act upon a carrier to furnish facilities and to accept goods, is not an absolute duty. That duty is qualified by a characteristic of reasonableness and depends upon all the circumstances. Furthermore, to the duty of the railway to furnish services there is a correlative obligation on the customer to furnish reasonable means of access to his premises.
In the light of all the circumstances, it could not be said that the Court of Appeal was clearly wrong in finding the defendant not liable for the damages claimed. The primary responsibility was on the plaintiff to free its premises of trespassers whose presence was, falsely, a sign of a labour clash and constituted a virtual nuisance vis-a-vis the defendant's employees. These trespassers, in fact, prevented reasonable access to the plaintiff's premises to which the defendant was entitled as a condition of furnishing its services. This obstruction could have been removed by the plaintiff with a minimum of delay and inconvenience. Within the few days of interruption no damage suffered by the plaintiff could be attributed to a breach of duty toward it by the defendant.
Per Abbott J.: The statutory duty imposed upon the defendant was not an absolute duty but was only a relative one to provide services so far as it was reasonably possible to do so. The defendant was under no obligation to ascertain whether the picketing was illegal or not. When an industrial plant is illegally picketed, the primary responsibility for taking legal action to have the pickets removed rests upon the owners of the plant whose operations are those primarily affected. By endeavouring by methods of persuasion to overcome the difficulties and to avoid resort to legal proceedings, the defendant acted reasonably.
Per Judson J.: Since the plaintiff's plant was the primary object of the attention of the pickets, the primary responsibility for the removal of the obstruction rested with the plaintiff. The statutory obligation under s. 203(1) (c) was not an absolute but a relative one.
Per Locke and Cartwright JJ., dissenting: The duty imposed upon the railway by ss. 203 and 222 of the Railway Act is absolute. The obligation to provide adequate and suitable accommodation is not qualified, and is enacted for the protection of the public requiring the services of these carriers.
On the evidence in this case, there was no defence to the action. The union officers ordered their members to disobey the lawful orders of their employer and to commit breaches of their duties under s. 295 of the Railway Act. They directed them to take part in actions which were criminal in their nature and contrary to s. 518 of the Criminal Code; this order was not dependent on their being prevented by violence or threats of violence from doing their duty, or whether or not there was a strike at the plant where cars were to be delivered. The conclusion reached by the trial judge that it was not fear but the order of the union officers which was the reason for the refusal to pass the so-called picket line was completely supported by the evidence and should not have been set aside in the Court of Appeal.
There was no evidence that the pickets trespassed on the plaintiff's property. According to the uncontradicted evidence, they trespassed on the main line of the railway at or near to the switch and there interferred with the railway operations.
The nature of the railway's statutory obligations was completely misconceived by the defendant's officers, who appeared to have thought that the company was helpless. It was upon the defendant that the statutory duty lay and upon its property that the so—called pickets trespassed and impeded or prevented the operations of the railway; it was, therefore, upon the defendant to take steps to prevent the interference with its operations. The plaintiff's right of action cannot be affected by its failure to commence an action to compel the defendant to discharge its duty or to prosecute the pickets for trespass, or under s. 518 of the Criminal Code. Groves v. Wimborne (1898), 2 Q.B. 403.
It is not the law in British Columbia, and it never has been, that the employees of railway companies may decide for themselves whether, and under what circumstances, they will discharge their obligations under s. 295 of the Railway Act and under their contracts of employment. The statutory duty rests upon the company to provide the facilities and upon the employees to render the services necessary to comply with that duty.
There was no threat of a strike by the railway employees, and had there been, it would not have afforded any answer to the plaintiff's claim. Hackney Borough Council v. Doré, [1922] 1 K.B. 437. The defendant must accept responsibility for the conduct of its employees. Lochgelly Iron and Coal Co. v. McMullan, [1934] A.C. 1.
Even if the duty of the railway was merely to make reasonable efforts to furnish the facilities, the evidence disclosed a complete failure to make such efforts.
APPEAL from a judgment of the Court of Appeal for British Columbia[1], reversing a judgment of Manson J. Appeal dismissed, Locke and Cartwright JJ. dissenting.
A. W. Johnson, for the plaintiff, appellant:
J. A. Clark, Q.C., for the defendant, respondent.
RAND J:—The case made against the respondent is based on the sections of the provincial Railway Act dealing with facilities and the acceptance, carriage and delivery of goods: R.S.B.C. 1948, c. 285, ss. 203 and 222. The precise duty is declared by para. (c) of the former:
(c) without delay, and with due care and diligence, receive, carry, and deliver all such traffic;
Mr. Johnson puts his argument in this fashion: the duty to furnish facilities, so far as conduct of employees may affect that, is absolute; and just as the employer is liable for the negligent act of his employee, positive or negative, as for a failure by the employer in his personal duty under the statute, so is he for a deliberate refusal to work by any of them. The question is whether that absoluteness can be attributed to the language of the statute and if not, what, if any, excuse is there when the performance of a public carrier breaks down through cessation or refusal of work by employees because of a labour dispute circumstance. In the case of a general strike of a group of essential employees, since that cessation, assuming appropriate conditions to be present, is a lawful act, it would be out of the question to interpret the Act as creating a liability for not doing what, in the nature of the situation, a carrier is, for the time being, unable to do, and no one has ever suggested it. Would the result be different if the cessation was illegal as in violation of law or in breach of contract?
Whether a strike, say of all trainmen, in sympathy with that of other employees, of the same employer or another, between whom there is no common interest beyond what is viewed as the general interest of workmen, would be within ss. 498 or 518 of the former Criminal Code is beyond our enquiry. Assuming it to be illegal, no civil remedy could effect directly a compulsion to work, and damages, if available, would take much time and involve many difficulties. The illegality could be declared and, in a proper case, criminal prosecution invoked; but that also would take time, during which to hold a railway bound to an absolute obligation would, for the reasons about to be stated, involve a regulation of public services by private agencies toward patrons which, in my opinion, our law does not permit. Under the present conceptions of social organization, apart from criminal law, the settlement of such a dispute must result from the pressure of the interests or necessities of the strikers or the employer or the force of public opinion. In this view I confine myself to the duty of a carrier to furnish facilities and to accept goods: where the carriage has actually begun other considerations may have to be taken into account with which we are not here concerned.
Apart from statute, undertaking a public carrier service as an economic enterprise by a private agency is done on the assumption that, with no fault on the agency's part, normal means will be available to the performance of its duty. That duty is permeated with reasonableness in all aspects of what is undertaken except the special responsibility, of historical origin, as an insurer of goods; and it is that duty which furnishes the background for the general language of the statute. The qualification of reasonableness is exhibited in one aspect of the matter of the present complaint, the furnishing of facilities: a railway, for example, is not bound to furnish cars at all times sufficient to meet all demands; its financial necessities are of the first order of concern and play an essential part in its operation, bound up, as they are, with its obligation to give transportation for reasonable charges. Individuals have placed their capital at the risk of the operations; they cannot be compelled to bankrupt themselves by doing more than what they have embraced within their public profession, a reasonable service. Saving any express or special statutory obligation, that characteristic extends to the carrier's entire activity. Under that scope of duty a carrier subject to the Act is placed.
The examples of these extreme situations furnish guidance for the solution of partial cessations of work associated with labour controversy. The duty being one of reasonableness how each situation is to be met depends upon its total circumstances. The carrier must, in all respects, take reasonable steps to maintain its public function; and its liability to any person damaged by such a cessation or refusal of services must be determined by what the railway, in the light of its knowledge of the facts, as, in other words, they reasonably appear to it, has effectively done or can effectively do to meet and resolve the situation. In weighing the relevant considerations, time may be a controlling factor.
Here the failure commenced on October 28 and continued until the end of November 4, a period of eight days. Within that time what effective steps could the respondent have taken which would have avoided the damages claimed? Admittedly, no measures were taken against the recalcitrant employees; its directing officers, not distinguishing the particular circumstances from those of strikes generally, acting under a vague notion that this was a "strike" which meant marking time, acquiesced in the refusal of service even though the superintendent paid lip service to the demands of the appellant by repeated orders to the train crew to "switch the siding" which they as repeatedly ignored. It was urged that the railway should have applied for an injunction against its own employees; but whatever might be said for that, there was a preliminary question between the railway and the company with which I shall deal in a moment and the determination of which would have obviated any such step.
There was the threat of violence made to the conductor. It is easy to minimize the effect of this in the apparent light of what happened subsequently: but we know too well how vengeance can be wreaked on individuals by ruffians in a community from which a determined public attitude and adequate public protection are absent. To compel an employee so threatened to carry out orders on penalty of dismissal or suspension for refusal might, whether warrantedly or not, have aroused the brotherhood; and, in the circumstances, it would be asking the respondent unnecessarily to face a further real danger of disrupting its services throughout the district.
There is also the question of time. Time is frequently the arbiter of these collisions. Whatever legal action might have been taken, the ordinary course of the mill work including the siding services would have been interfered with and interrupted. As has been aptly remarked, a strike is not a tea-party and it may have consequential impacts on associated interests which cannot be met or disposed of overnight; and it is difficult if not impossible, with these doubtful issues raised, and the possibilities of further complications, to say when the situation would have been cleared up.
That the respondent was able to move against the pickets is doubtful; that they were not on railway property was assumed in the submission of Mr. Johnson; certainly there was no interference with operation on the main line; and if there was a picket line it was across the private siding, which, for the purposes of operation, was the property of the appellant. Even if there was a trespass on railway lands, the imaginary barrier was around the plant, and that brings me to what I consider the primary and decisive factor. To the duty of the railway to furnish services there is a correlative obligation on the customer to furnish reasonable means of access to his premises. There was, in fact, no labour dispute between the I.W.A. and the appellant and the picketting was illegal. That fact was the appellant's, not the respondent's, and on it only the former could, with confidence, act. The appellant thus tolerated on or about its property a disruptive presence which it was known was exerting an obstructive effect on the employees of the railway and the siding operation. The obstacle presented by the pickets was to outbound shipments with inbound deliveries by highway permitted. In these circumstances the first and obvious step was to get rid of the intruders; but the appellant, rather than involve itself with the I.W.A. in litigation, in effect called upon the respondent to take steps against its own employees or the trespassers or both.
If the appellant had asserted its unquestioned rights, the root of the trouble would have been removed as it was by the immediate and voluntary withdrawal of the pickets when on November 4 an interim injunction against the respondent was obtained; a direct move against the pickets by the appellant could not have had less effect than that indirect action. Would the duty on the respondent to service the siding have given it a standing in law to move for an injunction against persons illegally encircling another's property with a symbolic barrier? If the appellant was content to suffer a picket line affecting its own premises, an illegal de facto interference with its rights in carrying on its business, would any court have acted to remove it at the request of another having no interest in the premises, and only a qualified duty in relation to them? At the highest it is extremely doubtful that it would do so; it is not the function of a Railway to clear away obstructions to operations on private premises when the owner acquiesces in them.
In all these circumstances, in the light of the controlling facts as they appeared to the respondent, I am unable to say that the Court of Appeal[2] was clearly wrong in finding the respondent not liable for the damage claimed. The primary responsibility lay with the appellant to free its premises of trespassers whose presence was, falsely, a sign of a labour clash, and constituted a virtual nuisance vis-à-vis the employees of the railway. They prevented, in fact, reasonable access to the appellant's premises to which the railway was entitled as a condition of furnishing its services, and the obstruction they presented could have been removed by the appellant with a minimum of delay and inconvenience. Rather than take that course the appellant sought to place on the respondent the entire burden of breaking up the impasse, entailing the uncertainties and risks of any course of action attempted. Whatever an indefinite continuance of the situation might have called for, within the eight days of interruption no damage suffered by the appellant can be attributed to a breach of duty toward it by the respondent. Had the picketting under the law of the Province been legal, a different situation would have been presented but with that we are not here concerned.
It should not be necessary, but to prevent any misconception of implication from these reasons, I add this: the only question dealt with is the duty of the railway toward the company in the precise situation presented. As between these parties, on whom did the responsibility lie to take the initiative against the de facto obstruction to the ordinary operation of the company's private siding? And my conclusion is as stated.
I would therefore dismiss the appeal with costs.
LOCKE J. (dissenting):—This is an appeal from a judgment of the Court of Appeal for British Columbia[3] which allowed the appeal of the present respondent, the defendant in the action, from the judgment delivered at the trial by Manson J. awarding damages to the present appellant. The appeal was heard by a Court of three members and of these Davey J.A. dissented and, while considering that the damages awarded should be reduced, would have otherwise dismissed the appeal. The case raises questions which are of great importance not only to the communities through which the lines of the respondent company pass in British Columbia and industries operating there, but to shippers of freight, the transcontinental railways and to railway unions throughout Canada.
The action was brought to recover damages for the alleged failure of the respondent to comply with its statutory obligations under ss. 203 and 222 of the Railway Act of British Columbia, R.S.B.C. 1948, c. 285. The respondent was incorporated by a special Act of the Legislature of British Columbia, Statutes of 1912, c. 36, and its operations do not extend beyond the boundaries of the province.
Section 203 reads in part:
(1) The company shall, according to its powers:—
(a) Furnish, at the place of starting, and at the junction of the railway with other railways, and at all stopping-places established for such purpose, adequate and suitable accomodation for the receiving and loading of all traffic offered for carriage upon the railway:
(b) Furnish adequate and suitable accomodation for the carrying, unloading, and delivering of all such traffic:
(c) Without delay, and with due care and diligence, receive, carry, and deliver all such traffic; and
(d) Furnish and use all proper appliances, accomodation, and means necessary for receiving, loading, carrying, unloading, and delivering such traffic.
(2) Such adequate and suitable accomodation shall include reasonable facilities for the junction of private siding or private branch railways with any railway belonging to or worked by the company, and reasonable facilities for receiving, forwarding, and delivering traffic upon and from those sidings or private branch railways, together with the placing of cars and moving them upon and from such private sidings and private branch railways.
Subsection (7) of s. 203 declares that any person aggrieved by the neglect or refusal of the company to comply with the section shall have a right of action against it.
Section 222 which appears under the heading "Traffic Facilities" in part 29 of the Railway Act expresses the obligation though in slightly different terms. So far as it needs consideration, it reads:
(1) All companies shall, according to their respective powers, afford to all persons and companies all reasonable and proper facilities for the receiving, forwarding, and delivering of traffic upon and from their several railways, for the interchange of traffic between their respective railways, and for the return of rolling-stock. The difference between this and subs. (1) of s. 203 is to be noted. The former states the obligation to furnish adequate and suitable accomodation in absolute terms. Whether subs. (2) qualifies this absolute obligation is, in my opinion, a debatable question.
The action raises questions which have not heretofore been dealt with by the Courts of this country. My consideration of the evidence leads me to the conclusion that there is no defence to this action. With great respect, I disagree with the judgments delivered by the majority of the members of the Court of Appeal, both as to the facts which are disclosed by the evidence and as to the law applicable to the obligation of the respondent under the statute.
Most of the evidence given on behalf of the defendant at the trial directed to the issue of liability was, in my opinion, irrelevant. However, as a contrary view has been taken by the learned judges of the Court of Appeal, I propose to refer in detail to all of the evidence given at the trial.
The appellant company at the time in question owned and operated a planing mill on lands adjoining the right-of-way of the main line of the respondent at Quesnel. It was also the owner and operator of two lumber mills situated elsewhere and the lumber there produced and lumber purchased from other mills operating in the territory was planed and made ready for market at the planing mill in Quesnel. A spur line constructed by the respondent leading onto the appellant's said premises, for which an annual rental was paid, afforded means of access by rail from the planing mill to the respondent's main line. Cars were switched by the respondent from its main line onto the appellant's premises and, when loaded and ready for shipment, bills of lading were issued and the cars removed by the respondent and carried to their destination, either upon the respondent's railway lines or to transcontinental railway lines to the north at Prince George or to the south at Vancouver. Eighty per cent. of the total production of the mill was sold for export to the United States. The length of time that these facilities had been enjoyed by the appellant does not appear. It is, however, common ground that at the relevant times the delivery of cars upon the spur track and the removal of cars therefrom after they were loaded were reasonable facilities to which the appellant was entitled under the sections of the Railway Act to which reference has been made.
At some time around October 1, 1953, there were strikes called in certain lumber mills operating at Stoner and Red Rock by the International Woodworkers of America, hereinafter referred to as the I.W.A., and, I would infer from the evidence, at Prince George. These places are served by the respondent railway and lie respectively 60,67 and 81 miles north of Quesnel. There were 12 mills manufacturing lumber or lumber products operating at the time at Quesnel. On or about October 26 the I.W.A. called strikes in 2 or 3 of these plants.
None of the employees of the appellant were members of the union and, according to the evidence of W.A. Stewart, the superintendent of the respondent, there was no strike at the mills of 9 or 10 other lumber companies at Quesnel.
On October 8, D.L. Irvine, a conductor employed by the defendant, was in charge of a train and had received instructions to move certain cars from lumber mills at Stoner and Red Rock. He gave evidence that, when they attempted to move certain cars at Stoner, six pickets posted by the striking union armed with clubs made threatening gestures towards the crew, whereupon the train was withdrawn. Later on that day they had the same experience at a mill at Red Rock.
On October 16, 1953, Donald F. Robinson, a locomotive engineer employed by the respondent who described himself as the general chairman of the Brotherhood of Locomotive Firemen and Enginemen, was working on the run between Lillooet and Williams Lake. Early in October he said that he had received complaints from men under his jurisdiction working on the subdivision between Williams Lake and Prince George regarding trouble with pickets of the striking mill employees and that they had asked him for instructions as to what they were to do. They apparently referred to what had happened at Stoner and Red Rock. On that date he issued what he described as a general circular which was sent to all firemen on the subdivision and which read:
Lillooet, B.C.
Oct. 16th, 53
To all Firemen Prince George Sub.
Article 16, section 2, Clause F, page 216 of the Brotherhood of Locomotive Firemen and Enginemen's constitution states,
Where a picket line is established by any nationally recognized organization our members will not be required to pass through such picket lines.
The I.W.A. is a nationally recognized organization and their pickets will be respected.
Yours fraternally
"D. F. Robinson"
G.C.B.L.F. & E.P.G.E. Rly.
Copy to J. Morris
Pres. I.W.A.
W. A. Stewart Supt.
Pacific Great Eastern Railway
On October 19, 1953, G. E. Harris, the general chairman of the Brotherhood of Railway Trainmen, circulated a message among the members of his union employed by the railway and sent to the superintendent the following message:
Squamish, B.C.
October 19, 1953
Dear Sir and Brothers:
Please find enclosed copy of telegram from L. C. Malone, Vice-President.
"WHERE A LEGAL STRIKE OF ANY NATIONALLY RECOGNIZED LABOR ORGANIZATION IS IN EFFECT AND PICKET LINES ESTABLISHED, CONSTITUTING A SUBSTANTIAL PRESENT OR POTENTIAL THREAT OF DANGER TO OUR MEMBERS OR THEIR FAMILIES OUR MEMBERS ARE WITHIN THEIR RIGHTS IN DECLINING TO ENTER THE TERRITORY DIRECTLY EFFECTED."
SIGNED
L. C. MALONE
Great care should be taken that picket lines should not be crossed, and that picket lines are established in the proper place.
Pickets picketing cars on Company property, such as team tracks, should not be recognized, it is up to the strikers in this case to prevent the loading of cars, once the car is loaded the Railway is required to accept the billing, and the Railway will in turn require our trainmen to handle loaded cars. I am going to Vancouver today and will have further instructions for you. I will contact the I.W.A., also General Chairman on C.N.R.
Fraternally yours,
"G. E. Harris"
G. E. Harris,
General Chairman
On or about October 21 Robinson went to Vancouver and interviewed Anthony Egan, the acting general manager of the road, and Stewart, the superintendent. According to him, the company's officials claimed that the pickets were not properly established and that the railway employees did not have to recognize them. Robinson disagreed with this and told them that the union adhered to the stand expressed in the message of October 16 and that the men would refuse to pass the picket lines and said that he was satisfied that, if they did so, they would suffer harm after they went off duty. While the evidence is not clear, it appears that the railway officials said that if the men refused they would have to lay them off or dismiss them, to which he replied that if they did they would exhaust the supply of available men, all of whom would refuse. Referring to the trainmen who were members of the union, the headquarters of which are in Cleveland, Ohio, he said that the men had asked him to make a ruling as to what they should do and that that ruling was to be found in its constitution and he considered himself to be bound by it. Robinson did not concern himself as to what the law of British Columbia was and said that no one pointed out to him that the article of the constitution was in conflict with the law. In answer to a question reading:
As soon as it was established that the IWA was nationally recognized, then no trainman—no, excuse me—firemen or enginemen would be permited to cross the picket lines?
Robinson said:
As far as the engineers—you see, we have two organizations, and all I could legislate for or instruct were the firemen; the engineers had a separate constitution.
While some engineers were members of his union, he said he could not give instructions to them.
On October 23 Robinson went to Quesnel. At that time it appears that there was no strike in any of the plants at that place. From there he proceeded on the day following to Prince George and, on October 25, went to the mill at Stoner where the strike was in progress. While no attempt was made by the railway to move cars from the plant while he was there, he said that he saw 15 or 20 men who had clubs or rocks in their hands outside the plant and he thought that these were pickets of the I.W.A. Later that day he went to Red Rock, where the mill was shut down. Whether the place was picketed at that time, the witness did not say. He then went to Prince George where he met one of the train crews and says that, as a result of his discussion with them, he decided it would be very unsafe for the men to "go up against the pickets or pass through the picket line". On that day or the day following, he returned to Quesnel where he met Egan but what transpired between them is not stated.
Egan, who had formerly been employed for a long period of years with the Canadian National Railway, was acting as general manager of the respondent company from September to December 1953. He had been employed earlier in a temporary capacity to look after the accounting for the road and was merely filling in as general manager, following the retirement of the former occupier of that office and until the appointment of his successor. Following his meeting with Robinson in Vancouver, he went to Stoner, Red Rock and Prince George to endeavour to arrange the resumption of railway service for the mills where the men were on strike. He had seen Robinson's message of October 16 and that from Harris of October 19. At Stoner he found about 40 pickets at the plant where the strike was in progress, which he referred to as that of White Brothers. There, he said, there were about 40 pickets on the edge of the right-of-way outside the plant, who appeared to be armed with clubs and rocks. He said that the appearance of the pickets convinced him that if he had pressed the matter any further with the railway employees, the only thing he could have done was to lay off the crews that refused to cross the picket line. From there he had gone to Red Rock where he found a situation similar to that at Stoner outside the premises of the Scott Sash and Door Company. He then went on to Prince George where he interviewed two officials of the I.W.A. and tried to get them to release certain cars of material tied up at Stoner and Red Rock. Later, on the same day, he said that another official of the I.W.A. agreed to remove the pickets from the plants at these two places until the following Tuesday, so that the loaded cars which were there could be removed. What Egan did not say but what was disclosed by Stewart when he gave evidence was that, in consideration of this, Egan had agreed that the respondent company would not "spot" any more empty cars in the "affected area" and gave instructions to this effect. None of the unions whose members operated the trains of the respondent threatened to strike and none were laid off as a result of their refusal to pass the picket lines at Stoner and Red Rock.
The property in question lies between the main line of the respondent and a highway to the east of it running approximately north and south. There are two entrances from the highway into the property and, on the morning of October 28, two motor cars appeared, one of which was stationed opposite each of the entrances. Each contained two men. One of the cars bore a sign which read "I.W.A. This plant on strike". The statement was untrue, a fact which was made known promptly to these men who have been referred to in the evidence as pickets.
On that day, two railway cars loaded with lumber from the appellant's mill were standing on the siding, together with some other railway cars which the respondent had theretofore supplied. On that afternoon, a train crew of the respondent in charge of E. L. McNamee went with an engine along the main line adjoining the appellant's property, intending to remove the loaded cars. Immediately to the south of the appellant's planing mill there is a roadway which leads from the highway to a crossing over the respondent's main line and which affords access to the farm of one Johnson, whose property lies west of the railway line. To obtain entrance to the private siding of the appellant from the main line, it is necessary to operate a switch which is upon the right-of-way of the main line a few feet to the north of the said railway crossing. According to McNamee, and his is the only evidence on the point, when the engine reached the vicinity, two pickets were at the switch and told the crew that they were not to throw the switch. These men were trespassers upon the railway premises. The engine crew made no effort to use the switch or enter the siding and took the engine away.
McNamee was aware that the employees of the appellant were not members of the I.W.A. and that there was no strike at their plant. He said that one of the so-called pickets was a man whose name he did not know but who had warned him in Quesnel on October 26, when he was off duty, not to cross the picket line or they would damage his home. He said that this had frightened him and that he was alarmed for the safety of his family living in Quesnel. Neither the engineer or fireman in charge of the engine were called to give evidence but they were under the direction of McNamee and withdrew, apparently on his instructions.
It had been the practice in dealings between the appellant and the respondent to have bills of lading for cars furnished by the respondent prepared at the appellant's office and taken for signature to the railway office at Quesnel. On October 29, Leif Rye, the yard foreman of the appellant, went with a bill of lading so prepared to the station and requested the station agent, Sidsworth, to issue it. The document related to one of the loaded cars then standing on the siding, but Sidsworth refused to sign it, saying that he had orders not to do so. Rye left the bill of lading with him. A written request was made for two empty cars to be placed on the siding on October 30 and it was shown that it was usually the case that cars were placed on the siding the day following such a request. None were delivered on the siding until November 5.
On October 29 McNamee went up with a train crew for the purpose of removing loaded cars and says that, while they had no conversation with the pickets, two of them were at the crossing near the switch.
John Zamluk, an accountant employed by the appellant, went on the same day to one Lehman, apparently the organizer in the area of the I.W.A., to protest the picketing. Lehman replied that the I.W.A. was an international union and allowed to picket anywhere. Later in the day, apparently McNamee and Sidsworth went to the strike committee of the I.W.A. at Quesnel and obtained a document addressed to "I.W.A. pickets" which said that:
The bearer P.G.E. yard crew has the permission of the local Strike Committee to cross the picket line. Please arrange to pass him through the picket line on above date only.
The permit stated that it was granted for the purpose of removing Canadian Pacific Railway car no. 248675 and C. & O. 3717. These cars were removed on October 30 and the damage suffered mitigated to some extent.
While the evidence does not deal with the matter in any detail, it appears that an injunction restraining the action of the pickets at the mill of the White Company at Stoner had been obtained some time shortly prior to October 29. On that day, Robinson sent the following message to F. R. Gibson, the assistant superintendent of the respondent at Squamish:
Marguerite
Oct 29th/53
F. R. Gibson,
Asst. Supt.
Squamish, B.C.
All mills within strike area Prince George to Quesnel have been declared hot pending settlement by IWA and are classed as such by all its affiliates. If men under my jurisdiction were to service these mills serious consequences could occur while on duty and off the job. The copy of injunction received does not guarantee the safety of the men. It only orders the IWA to refrain from preventing movement of cars. This does not take in the hot heads that may come under jurisdiction of the IWA and unless the PGE Rly can personally guarantee the safety of the men and are prepared to look after their families in the event they get hurt in any accident off duty that could be caused by strikers I cannot consider ordering men under my jurisdiction to service these mills pickets or no pickets. All firemen to be governed by rule 108 of the uniform code of operating rules.
D. Robinson.
The expression "declared hot" is a familiar one in labour disputes and, in the present case, meant simply that the members of Robinson's union would not handle any traffic to or from any of the mills at Quesnel until the owners of the mills at the points to the north and at Quesnel, where the men were on strike, reached an agreement with the I.W.A. There is no evidence as to the identity of the two or three mills at Quesnel where the employees were on strike. This unwise message and the equally unwise messages circulated by Robinson and Harris to the members of their union on October 16 and 19 were directly responsible for the refusal of McNamee and the train crews under his charge to handle the cars to and from the appellant's plant. It is to be regretted that these men, who presumably thought that the actions which they advised were lawful under the laws of the Province, did not take legal advice as to their position, the position of their unions and that of the men refusing to comply with the lawful instructions of the railway company. It is equally unfor