Supreme Court Judgments

Supreme Court of Canada

International Longshoremen’s Association, Locals 273, 1039, 1764 v. Maritime Employers’Association et al., [1979] 1 S.C.R. 120

Date: 1978-10-03

Local 273, International Longshoremen’s Association, Local 1764, International Longshoremen’s Association, Local 1039, International Longshoremen’s Association Appellants;

and

Maritime Employers’ Association, Brunterm Limited and Furness Canada (1975) Limited, being companies duly incorporated under the laws of Canada, and having offices in the City of Saint John, New Brunswick Respondents.

1977: December 14, 15; 1978: October 3.

Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION

Labour law—Injunctions—Illegal strike—Picket lines—Stevedoring—Refusal to cross picket lines—Canada Labour Code, 1972 (Can.), c. 18, s. 107, 123(1), 180, 182, 190—Trade Unions Act, 1872 (Can.), c. 30, s.17.

The appellants are three trade unions certified under the Canada Labour Code. An interlocutory injunction was issued ordering that they, their officers, members and servants be restrained from continuing or participating in an illegal strike. The injunction resulted from a refusal to report for work on August 11, 1976. The injunction is challenged on the grounds that there were no employees of the respondents at the time of the application for injunction who refused to work, that refusal by members of appellant Locals to cross a lawful picket line was not a strike, and that in any event an injunction could not properly issue against unincorporated trade unions.

Held: The appeal should be dismissed.

There is no merit in the submission that at the critical time there were no employees of the Association. The entire pattern of the stevedoring business in the Port of Saint John has resulted in a rather unusual framework in which the normal employee-employer relationship either does not arise or arises only when a member of the Local reports to the requisitioning member of the Association for a particular job. The Collective Agreements were predicated upon this basis. Members of the Association and members of the Locals were, under the

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agreements, employers and employees respectively, whatever their rights and obligations may or may not include under the common law of master and servant. The Locals undertook to supply labour to the employer organization and its component members. It could not therefore be said that the Agreements were designed to operate, and in fact only operated, after the members of the Locals reported to work.

As to the status of the parties the Code and the various provincial labour relations Acts accord to unions rights and obligations different and separate from those of its members. Since the Taff Vale case, [1901] A.C. 426, the concept has crystallized whereby trade unions and employer organizations are deemed to have been constituted as legal entities for the purpose of discharging their function and performing their labour relations role. While the Trade Unions Act, 1872 (Can.), c. 30, is not here applicable, the Locals here are nonetheless legal entities capable of being sued and of being brought before the Court to answer the claims for an injunction prohibiting the participation in the activities found to constitute an illegal strike.

Refusal to cross the picket line of another union cannot be a strike unless it falls within the definition of “strike”. Parliament has adopted an objective definition of “strike” the elements of which are a cessation of work “in combination”, in “concert” “in accordance with a common understanding”. The motive is of no import, as long as there is a cessation of work pursuant to a common understanding. Here the definition is in substance the same in the contracts as in the statute. The common understanding may be considered as resulting from the very union solidarity which forbids the crossing of picket lines. While the contract might have been more precise and included in the definition of strike cessation of work resulting from a refusal to cross a picket line there is no room, given the ordinary meanings of the terms used in the agreements, to import a qualification which would exclude a stoppage of work resulting from the honouring of a picket line by the employees comprising the bargaining unit.

The wording of the Queen’s Bench Division in its order “that the Defendants, their officers, members and servants be restrained from continuing or participating in an illegal strike…” is unexceptionable and, while it may be more appropriate to adopt the more precise language suggested in Marengo v. Daily Sketch and Sunday Graphic, Ltd., [1948] 1 All E.R. 406, at p. 407, such language has, for many years, been adopted in these injunctions no doubt for the good reason that it

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makes the impact and the sense of the order clear to all these likely to be affected thereby. The effect of such an injunction to cease from continuing an illegal strike is quite a different thing, in reality from a mandatory order directing an opera star to sing, as in Lumley v. Wagner, (1852) 1 De G.M. & G. 604.

McGavin Toastmaster Ltd. v. Ainscough, [1976] 1 S.C.R. 718; Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1975), 57 D.L.R. (3d) 199; Nipissing Hotel Limited et al. v. Hotel and Restaurant Employees and Bartenders International Union et al. (1963), 38 D.L.R. (2d) 675; The Taff Vale Railway Company v. The Amalgamated Society of Railway Servants, [1901] A.C. 426; International Brotherhood of Teamsters v. Therien, [1960] S.C.R. 265; O’Laughlin v. Halifax Longshoremen’s Association (1972), 28 D.L.R. (3d) 315; Vancouver Machinery Depot Ltd. et al. v. United Steelworkers of America et al., [1948] 2 W.W.R. 325; MacMillan, Bloedel Packaging Limited v. Pulp, Paper and Woodworkers of Canada, Locals 5 and Local 8, et al. (1976), C.L.L.C. 16, 017; Tramp Ship-ping Corporation v. Greenwich Marine Inc., [1975] 2 All E.R. 989; Winnipeg Builders’ Exchange et al. v. International Brotherhood of Electrical Workers, Local Union 2085 et al. (1966), 57 D.L.R. (2d) 141 aff’d [1967] S.C.R. 628; E. Gagnon et al. v. Foundation Maritime Limited, [1961] S.C.R. 435; Furness Withy and Company Limited and Maritime Employers Association v. International Longshoremen’s Association, Local 273, (1973), 9 N.B.R. (2d) 533; Lumley v. Wagner (1852), 1 De G.M. & G. 604; Re Polymer Corporation Ltd. (1958), 59 C.L.L.C. para. 18158; Marengo v. Daily Sketch and Sunday Graphic, Ltd., [1948] 1 All E.R. 406; Re Tilco Plastics Ltd. v. Skurjat et al. (1966), 57 D.L.R. (2d) 596; Mitchell Bros. Truck Lines v. General Truck Drivers and Helpers Union, Local 31 and Walcott, [1974] 4 W.W.R. 449; Pacific Press Ltd. v. Vancouver Typographical Union Local 226 et al. (1971), 15 D.L.R. (3d) 212.

APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division, dismissing an appeal from an interlocutory injunction of Stratton J. Appeal dismissed.

Eric L. Teed, Q.C., for the appellants.

G. Christopher Collier, for the respondents.

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The judgment of the Court was delivered by

ESTEY J.—The issuance of an injunction against three trade unions certified under the Canada Labour Code, 1972 (Can.), c. 18, is challenged principally on the grounds that there were no employees of the respondents at the time of the application for injunction who refused to work, that refusal by members of the appellant Locals to cross a lawful picket line is not a strike and therefore there is no proper basis for the issuance of an injunction, and that an injunction may not properly issue against unincorporated trade unions. There are subsidiary issues raised in the course of argument which will be dealt with as they arise.

There were concurrent findings below that there was a strike and that it was illegal. Limerick J.A. of the New Brunswick Court of Appeal stated:

There was sufficient admissible material in the affidavits on which the trial Judge could find an illegal strike was being engaged in.

…

…In this case there is not only a lack of evidence of any further action being taken by the Locals to get the men back to work such as disciplining its members or even threatening to discipline them but there is evidence that the officers of the Locals, some of whom gave the orders to report for work, themselves failed to report for work in spite of the union agreement to supply all necessary work force required by the employer. Such refusal by the officers not only directly involved the Locals but also encouraged the strike by their members.

Nothing has been drawn to the attention of this Court to disturb these conclusions on the facts and therefore the issues in law raised in this appeal must be approached, in my view of the record, on the basis of these findings. Even so, the discussion of the legal issues requires some relations of the circumstances of the case. Several stevedoring companies operating in the harbour of Saint John, New Brunswick, joined together for labour relations purposes in an employees’ organization, The Maritime Employers’ Association, one of the

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plaintiffs—respondents (hereinafter referred to as the “Association”). The two other plaintiffs—respondents are corporate members of the Association. There is nothing in the record to indicate whether the Association is incorporated or even whether it has been designated by an order of the Board under s. 131 of the Code, as “employer” for the purpose of certification of the appellant trade unions as the bargaining agents of persons employed by the component membership of the Association. No issue was raised in the courts below on the status of the respondent organization. The only description of the Association appears in an affidavit in which the following statement is made:

The Maritime Employers Association is an Employer’s organization which acts on behalf of all of its members in the Port of Saint John for all labour negotiations and labour contract administration with each of the Defendant Unions.

The Association appears to be “an employers’ organization” as the term is defined in s. 107(1) of the Code, and in each Collective Agreement it is recited that the Association is acting for and on behalf of its members “contracting stevedores, handling vessels, … within … the Port of Saint John, N.B.”. It is of some significance that in each of the three Collective Agreements, the Local

…recognizes the Maritime Employers Association as the exclusive bargaining agent for its members in the Port of Saint John, N.B.

Elsewhere, for example, Art. 2:02(b) of the Local 273 Agreement, reference is made to work being “under the control of the employer” and the Agreements proceed on the common footing that the Association is the employer for the purposes of the Collective Agreement and operations thereunder. Throughout the Agreements the Association is sometimes referred to as “the Company” or as “management”.

The three defendants-appellants trade unions (hereinafter referred to as the “Locals”) are trade unions within the meaning of that term as defined in the Code and each is a Local of the International Longshoremen’s Association. Each of these Locals entered into a Collective Agreement with

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the Association. In each case the Agreement generally asserts, as in the case of the Local 273 Agreement:

The purpose of this Agreement is to promote satisfactory relations between the Companies, the Association and the Union, to ensure greater efficiency in the work performed, to provide machinery for the prompt disposition of grievances, and to establish working conditions to be strictly observed by all parties, as well as hours of work and wage rates for all employees covered by this Agreement.

In each Agreement the Locals undertake and agree to supply the labour required by the members of the Association and the Association in turn agrees to assign the work as described in the Collective Agreement to members of the Locals so long as they are recognized by certification. Of primary significance in these proceedings is clause 12:01 in the Agreement of Local 273 (11:01 in the Agreement of Local 1764 and Section X(a) of the Agreement with Local 1039):

12:01

In view of the orderly arrangements provided by this Agreement for the settling of grievances the Union agrees that during the lifetime of this Agreement there shall be no strike, slowdown or stoppage of work either complete or partial, and Management agrees that there will be no lockout.

Two of the three Agreements define “strike” as including

…(a) a cessation of work or a refusal of/to work or to continue to work or to report for work by employees in combination or in concert or in accordance with a common understanding,…

The third does not define the word “strike”. “Strike” is defined in s. 107(1) of the Code in substance in the same terms as in the Agreements mentioned above.

Prior to the incidents giving rise to these proceedings, a legal strike was commenced by the members of the National Harbours Board Police employed in the Port of Saint John, and the police, in the course of that strike, established picket lines in the entrance to the port’s facilities. The employers of the police were not, of course, the employers

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of the members of the appellants; the conflict here arose because of the common situs of employment around which the police placed a picket line. The members of the three Locals refused to cross the police picket lines and on their failure to do so and to report to work, shipping operations in the Port of Saint John were closed down.

The Locals take the position that at the critical times in question in these proceedings, there were no employees of the Association and hence there could be no strike. There is no merit to this submission. The entire pattern of business in the Port of Saint John apparently has led all parties to the Collective Agreements to adopt the rather unusual framework revealed by the Agreements as summarized above. The nature of the stevedoring industry has itself been recognized as unusual by Parliament when it adopted s. 132 of the Code which authorizes the Board when dealing with the longshoring industry to establish appropriate units for collective bargaining on the basis of geographic areas where the areas include two or more employers, and to certify a trade union as the bargaining agent for such a geographic area.

The pattern established by the Agreements is simple. When a participating employer of stevedores requires labour for the unloading of vessels, the employer notifies the Local in the manner prescribed by the Agreement and the Local assigns to that employer the work forces required. The Agreements, by detailed provisions, establish the method of computing the pay and the procedure for regulating the hours worked by each member of the Local for the employer company. Thus in a technical sense, the relationship of employee-employer as it is recognized in the common law, may not arise until the member of the Local has reported to the requisitioning member of the Association for work in the Port of Saint John. Beyond that technical basis, the argument has no merit. When these Collective Agreements were signed by the officers of the Association and the officers of the Locals, all the parties to the Agreements recognized the peculiar or particular characteristics of the stevedoring business in the Port of Saint John; the Local for its part undertook to supply the required labour, and the Association, on behalf

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of its member employers, undertook to assign stevedoring work only to members of the Locals. The Agreements in their entirety are predicated upon this relationship and on the fact that labour would be required only when work was available to be performed and that hence the remuneration would be paid to members of the Locals only when services are requisitioned by the Association members pursuant to the terms of the Collective Agreements. For the purposes of collective bargaining and labour relationships under the resulting Collective Agreements, members of the Association and members of the Locals were respectively employers and employees from the onset of the Agreements, whatever their rights and obligations may or may not include under the common law of master and servant. This issue was settled in principle by this Court in McGavin Toastmaster Ltd. v. Ainscough[1] where Chief Justice Laskin stated at pp. 724-5:

I do not think that in the face of labour relations legislation such as existed at the material time in British Columbia, in the face of the certification of the union, of which the plaintiffs were members, as bargaining agent of a specified unit of employees of the company and in the face of the collective agreement in force between the union and the appellant company, it is possible to speak of individual contracts of employment and to treat the collective agreement as a mere appendage of individual relationships. The majority of this Court, speaking through Judson, J., in Syndicat catholique des employés de magasins de Quebec Inc. v. Compagnie Paquet Ltée (1959), 18 D.L.R. (2d) 346 at pp. 353-4, [1959] S.C.R. 206 at p. 212, said this in a situation where a union was certified for collective bargaining under Quebec labour relations legislation:

There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations.

The situation is the same in British Columbia where the legislation in force at the material time stated explicitly that a collective agreement entered into between a union and an employer is binding on the union, the employer

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and the employees covered thereby: see Mediation Services Act, 1968 (B.C.), c. 26, s. 6.

The reality is, and has been for many years now throughout Canada, that individual relationships as between employer and employee have meaning only at the hiring stage and even then there are qualifications which arise by reason of union security clauses in collective agreements. The common law as it applies to individual employment contracts is no longer relevant to employer-employee relations governed by a collective agreement which, as the one involved here, deals with discharge, termination of employment, severance pay and a host of other matters that have been negotiated between union and company as the principal parties thereto.

These observations, made with reference to British Columbia labour relations legislation, apply equally to the Code and the Collective Agreements here before us.

The employees, as the term is used in the Collective Agreements herein, are of course the members of the Local on whose behalf the Local has undertaken to supply labour to the employer organization and its component members. It cannot be said that the Agreements were designed to operate and in fact operated only after the members of the Locals reported to work. The Agreements contemplate a relationship under which both parties have obligations commencing the effective date of the Agreement and under which the Association represents all its members and the Locals represent all their members. This is not only the general framework of the Agreements but it is supported in detail by the very terms of the Agreements, including for example s. 1 of the Local 1764 Agreement (the Local 273 and Local 1039 Agreements contain comparable provisions) which refers to “all employees who are subject to the provisions of this Agreement”. The converse situation arose in Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486[2], where the union and the employees sought to take advantage of a similar employment arrangement under a collective agreement. Brooke, J., speaking for the Court, stated at p. 208:

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While ss. 37(9) and 42 of the Labour Relations Act do not extend the binding effect of a collective agreement or arbitration award made pursuant thereto beyond “employees”, I do not regard these sections as prohibiting the negotiating parties from agreeing to confer rights or benefits on non-employee members of the union and that such rights and benefits may then be the subject of grievance procedure and within the jurisdiction of an arbitration board under the agreement. Collective agreements in this industry have developed to include benefits to non-employees who are union members. In this industry, there is no continuing employment and so collective agreements have developed to ensure a source of labour to the contractor, to provide for preference in the employment of trade union members and, while establishing the terms and conditions of such employment, to provide other benefits which may become due or payable at a time when the union member is not employed.

I turn then to the status of the parties to the Collective Agreements. No issue was made at trial or in the Court of Appeal as to the status and capacity in these proceedings of the Association but in this Court, counsel for the Locals took the position that the Association was not an employer and accordingly had no status to make the application for injunction herein successfully made below. The history of the Canadian labour movement in general, and labour law in particular, has been a struggle for status and recognition of trade unions without at the same time exposing the representatives of the employees, the trade unions, to debilitating, if not paralysing, forays in the courts. The use of the corporate mode was avoided largely for this reason, despite the obvious facility it would have afforded in the acquisition and holding of property, and in the establishment of limited liability for the membership. Almost the earliest labour legislation in this country, the Trade Unions Act, first enacted in 1872, 35 Vict., c. 30, and in the United Kingdom, the Trade Unions Act of 1871, attempted to make the corporate shelter available to the union without risking the loss of the treasury of the union contributed by members from their own resources.

Modern legislation in this country has come to this solution by a different route. The Code and

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the various provincial labour relations Acts accord to the union rights which are different and separate from those of its members, as well as obligations which are distinct from those imposed on the employees the union represents. Certification is a case in point. Only a. trade union or a council of trade unions, as defined by the Code, may apply for or receive certification. On the other hand, only employees may participate in any resulting representational vote. As a consequence of certification, ss. 136 and 146 of the Code grant to the union as bargaining agent the exclusive right to represent all employees in the bargaining unit in collective bargaining with the employer or the employers’ organization. Complex provision is made for the substitution of one trade union for another as a bargaining agent of the employees, as well as for merger or amalgamation of unions and the transfer of jurisdiction between the unions. These same satutes have created a concept of a collective agreement to which only a trade union, or a council of trade unions, and an employer or an employers’ organization may be a party. Concepts unknown in the law of contracts for the renewal of and for a “bridge” between old and new collective agreements have been attached to the collective agreement institution. A triangular or three-party effect is given by statute to the binding quality of the collective agreement so that the agreement binds not only the signatory employer and bargaining agent but also the employees in the bargaining unit whether or not they be members of the bargaining agent union (vide s. 154) as well as any employer members of an employers’ organization designated by the Board under s. 131. The collective agreement may require as well the payment of union dues by employees represented by the trade union by the deduction of such dues from wages by the employer and for their remittance to the trade union. This provision (s. 162) sharply delineates the concurrent but distinct rights and duties of the two parties, and between the trade union and the represented employees.

In the area of strikes and lockouts, the relations of the employer and the bargaining agent are detailed by the Code (as well as the comparable provincial statutes) and there are many other features in the landscape of labour relations created

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by the Code which need not be discussed here but which further illustrate the character of the ‘legal entity’ which Parliament has here established, and the relationships between the entities within the community of labour relations there established. I will refer only to s. 185 as a last comment on this acpect. By this section, the parties to a collective agreement are subject to many restrictions deemed by the legislators to be required in order to achieve the balance between parties to the bargaining process so as to keep the machine in motion. Violation of these restrictions entail penalties, including penalties imposed on prosecution of the employer by the trade union. Section 193 provides that such prosecution may be

brought against and in the name of employers’ organization, a trade union, or a council of trade unions

and for these purposes such parties are deemed to be a “person”.

Much has been said in the courts already about the status in law of a trade union. Before assessing some of these authorities, it is well to recall that in some provinces, action against unions in court is curbed by statutes such as The Rights of Labour Act of Ontario, R.S.O. 1970, c. 416, s. 3(2) which provides:

A trade union shall not be made a party to any action in any Court unless it may be so made a party irrespective of any of the provisions of this Act or of The Labour Relations Act.

This statute was considered by Spence J., then sitting as a trial judge in Nipissing Hotel Limited et al. v. Hotel and Restaurant Employees and Bartenders International Union et al.[3] The Rights of Labour Act was found to be a bar to naming a trade union as a party to an action for an injunction after the Court had determined that The Labour Relations Act of Ontario had created the union as a juridical person which without the prohibition contained in the former statute could have been named as a party. This judgment and earlier cases in the same Court found their root in the pronouncement of Farwell J. in The Taff Vale Railway Company v. The Amalgamated Society

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of Railway Servants[4], at p. 429 (and adopted by Lords Halsbury, Macnaghten, Shand and Brampton at pp. 436 et seq.).

Now, although a corporation and an individual or individuals may be the only entity known to the common law who can sue or be sued, it is competent to the Legislature to give to an association of individuals which is neither a corporation nor a partnership nor an individual a capacity for owning property and acting by agents, and such capacity in the absence of express enactment to the contrary involves the necessary correlative of liability to the extent of such property for the acts and defaults of such agents. It is beside the mark to say of such an association that it is unknown to the common law. The Legislature has legalised it, and it must be dealt with by the Courts according to the intention of the Legislature…

Halsbury, L.C. in adopting the judgment of Far-well J. stated the following at p. 436:

If the Legislature has created a thing which can own property, which can employ servants, and which can inflict injury, it must be taken, I think, to have impliedly given the power to make it suable in a Court of Law for injuries purposely done by its authority and procurement.

In this Court, in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, Building Material, Construction and Fuel Truck Drivers, Local No. 213, Vancouver, British Columbia, A.F. of L. v. Henry Therien[5], the suability of a trade union for damages and for injunctive relief was discussed in the context of the British Columbia labour statutes by Locke J. with whom all members of the Court agreed on the question of the liability of a trade union to sue. His Lordship stated at pp. 276-8:

A union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining is entitled to apply to the Labour Relations Board for certification as the bargaining agent of such employees and, when certified, to require the employer to bargain with it and, if agreement is reached, to enter into a written agreement with it which is signed by the union in its own name as such bargaining agent. Throughout the Act such organizations are referred to as trade unions and thus treated as legal entities. … The granting of these rights, powers and immunities to

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these unincorporated associations or bodies is quite inconsistent with the idea that it was not intended that they should be constituted legal entities exercising these powers and enjoying these immunities as such. What was said by Farwell J. in the passage from the judgment in the Taff Vale case which is above quoted appears to me to be directly applicable. It is necessary for the exercise of the powers given that such unions should have officers or other agents to act in their names and on their behalf. The legislature, by giving the right to act as agent for others and to contract on their behalf, has given them two of the essential qualities of a corporation in respect of liability for tort since a corporation can only act by its agents.

The passage from the judgment of Blackburn J. delivering the opinion of the judges which was adopted by the House of Lords in Mersey Docks v. Gibbs, referred to by Farwell J. states the rule of construction that is to be applied. In the absence of anything to show a contrary intention—and there is nothing here—the legislature must be taken to have intended that the creature of the statute shall have the same duties and that its funds shall be subject to the same liabilities as the general law would impose on a private individual doing the same thing. Qui sentit commodum sentire debet et onus.

In my opinion, the appellant is a legal entity which may be made liable in name for damages either for breach of a provision of the Labour Relations Act or under the common law.

The legislation of British Columbia included the Trade Unions Act of 1902 which declared that a trade union shall not be liable in damages for any act in connection with a strike or labour dispute unless the members authorized or concurred in the act. Notwithstanding the limiting provisions of the latter statute, the Court concluded that a union, for the reasons set out in excerpts above, was amenable to action in the courts either at common law or by reason of a breach of a provision of The Labour Relations Act. The general plan of the labour relation statute of British Columbia then before this Court was similar in all functional aspects to the scheme of employee-employer relations adopted in the Code.

It should also be noted that the Parliament of Canada in 1872 enacted the Trade Unions Act, supra, s. 17 of which follows the British Act enacted in the previous year. This statute applies

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only to a trade union registered thereunder. There are very few decisions relating to the status of trade unions under federal legislation. In O’Laughlin v. Halifax Longshoremen’s Association[6], the Nova Scotia Court of Appeal concluded that Parliament intended that a trade union enjoying the benefits under the Code should be constituted as a legal entity, and though unincorporated, a judicial person capable of being sued at least in respect of some aspects of its activities. The Court was there dealing with a claim for damages by a member against the union for loss of wages consequent upon his suspension from union membership. The judgment of the Court was given by Cooper J.A. who, at pp. 332-3, stated:

I think that Parliament by the enactment of the Industrial Relations and Disputes Investigation Act, has manifested an intention that a trade union, although not an incorporated body, is a juridical person: See Polymer, supra, at p. 616—at least for certain purposes among which, in my view, is an action by one of its members for suspension from membership affecting his employment. …it is my opinion that the law in Canada has developed to the point where these bodies, sometimes very large and in any event of great importance in modern society, are now recognized as something more than mere collections of individuals and that Legislatures intended this to be so, having regard to the provisions of Labour Relations Acts now in force in this country.

At p. 334, reference is made to the Trade Unions Act:

Finally, I have also considered the effect of non-registration of the Association under the Trade Unions Act. I think that the provisions of the Industrial Relations and Disputes Investigation Act are sufficient in themselves to support the conclusion to which I have come.

The plan or scheme of collective bargaining established under the federal statute then before the Nova Scotia courts is the same in broad outline and principle as that embodied in the Code as presently in effect. It may be thought at first blush

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that the Alberta Court of Appeal reached the opposite conclusion in General Teamsters Local 362 of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Midland Superior Express Ltd.[7] The Court did indeed find that no action lay by the employer against the trade union representing its employees under the federal labour relations statute but did so on the simple ground that the Code created an exclusive jurisdiction over the dispute in question in the Canada Labour Relations Board and that the employer must exhaust its remedies before that Board and under that statute. There seems to be no doubt in the minds of the majority or minority that the trade union was a legal entity capable of enforcing its rights and powers under the labour legislation under its own name. Beyond that, the Court was not required to go and did not go.

Section 123(1) of the Code provides that where anyone has failed to comply with any order or decision of the Board under the Code “…any person or organization affected thereby” may file in the Federal Court of Canada a copy of the order or decision, exclusive of the reasons therefor and when so registered, the order has the same force and effect as if the order were made in that Court. No doubt the presence of such a provision in the federal statute had a bearing on the determination of the appropriateness of the litigation in the Supreme Court of Alberta in Midland Superior case, supra. It is not without significance that the Locals have been made parties, defendants in their own respective rights and names in these proceedings under the Code and no issue as to their status or capacity was raised.

Federal and provincial labour relations statutes alike have been interpreted by the courts in the same general way as Farwell J. interpreted the United Kingdom legislation in the Taff Vale case, supra, and over the years the concept has crystallized in our law whereby trade unions and employer organizations are deemed to have been constituted by the Legislature as legal entities for the purpose of discharging their function and perform-

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ing their role in the field of labour relations. The Locals here were certified as bargaining agents for the employees concerned and as such acquired a clearly defined status under the statute. The British Columbia Court of Appeal in Vancouver Machinery Depot Ltd, et al. v. United Steelworkers of America et al.[8] as well as the Nova Scotia Court of Appeal in O’Laughlin v. Halifax Longshore-men’s Association, supra, concluded that notwithstanding that the international trade union in the former case and the employee’s organization in the latter case had not actually been authorized as bargaining agents, they were legal entities for the purpose of the proceedings then before the courts. The same reasoning applies of course to the status of the Association. The record is silent as to whether the Association has been made the subject of a Board order under s. 131.

The Trade Unions Act of 1872 is not applicable here because the three locals have not been revealed in the record to have been registered thereunder and hence for the purposes of these proceedings, the Act is not in force. It may be argued that by inference, Parliament intended that without registration and the consequential invocation of the provisions of the Trade Unions Act, no proceedings in court may be taken against a trade union. I conclude otherwise. There is no parallel or analogy between the federal act and The Ontario Right of Labour Act, supra. The latter statute is part of a labour legislation pattern and applies whether or not its terms are invoked by any formality. The Trade Unions Act on the other hand is precise legislation dealing with a number of matters concerning trade unions and all the terms of which are placed on an optional basis without force of law unless the trade union voluntarily registers under the Act. The Code introduced by Parliament in 1972 in contrast establishes in modern form an elaborate and comprehensive pattern of labour relations in all its aspects within the federal jurisdiction. The exercise of the rights and the performance of the obligations arising under that statute can only be undertaken efficiently and conveniently by those groups acting as legal enti-

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ties. The reasoning in the Taff Vale decision, supra, and the subsequent cases in this country apply with equal force and effect in the case of the Code. It is not necessary to decide as has been done in some of the judgments cited above whether any action might be maintained in the courts by or against these entities in respect of conduct outside the discharge of their obligations or the exercise of their rights under the Code. It would take the clearest possible language in my view on the part of Parliament when enacting the Code to show that Parliament did not wish to establish the bargaining agent and the employer as legal entities for the purpose of employer relations regardless of the status of each under pre-existing statute law or the common law generally. In the result, the Association is a legal entity fully capable of bringing these proceedings; and the three Locals are likewise each legal entities fully capable at law of being added as a party defendant. In the case of the Association, this decision is not so critical because two of the employer companies are co-plaintiffs and clearly represented in the agreements by the agency of the Association and thereby have status to join in these proceedings as plaintiffs independent of the status of the Association. While the custom has long prevailed in some provinces of adding as parties defendant, officers or agents of the trade union or individuals found to be in breach of whatever law may be said to apply, it is not in my view essential that this practice be followed. The Locals are legal entities capable of being sued and of being brought before the Court to answer the claims being made herein for an injunction prohibiting the participation in the activities found to constitute an illegal strike.

The Locals submitted in this Court that by reason of the universally understood doctrine of ‘union solidarity’, it could not have been the intention of Parliament in enacting the Code to have included, in the meaning of “strike”, the refusal to cross a lawful picket line drawn up around the employees’ place of work. Presumably the same argument is extended by the Locals to the terms of their Collective Agreements where the same definitions of “strike” are employed. This approach to

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the problem at hand found support in proceedings before the B.C. Labour Relations Board in MacMillan, Bloedel Packaging Limited v. Pulp, Paper and Woodworkers of Canada, Local 5 and Local 8, et al.[9], where the Board interpreted the statutory definition of strike as including a

…subjective element: a concerted effort by employees undertaken for the specific purpose of compelling an employer to settle a dispute about terms of employment. It is just that motivation which is absent in the normal case of employees honouring a picket line.

Lord Denning M.R. adopted a somewhat similar definition of strike in Tramp Shipping Corporation v. Greenwich Marine Inc.[10], at p. 992.

The response to this submission is found in the history of the federal labour statute itself. The Industrial Disputes Investigation Act R.S.C. 1927, c. 112, provided in s. 1 (k) a definition of strike as follows:

“strike” or “to go on strike,” without limiting the nature of its meaning, means the cessation of work by a body of employees acting in combination, or a concerted refusal or a refusal under a common understanding of any number of employees to continue to work for an employer, in consequence of a dispute, done as a means of compelling their employer, or to aid other employees in compelling their employer, to accept terms of employment;

This statute was replaced in 1948 by the Industrial Relations and Disputes Investigation Act, 1948 (Can.), c. 54, which deleted the qualification that the withholding of services be done for the purpose of compelling the employer to accept the proposed terms of employment. The definition was as follows:

(p) “strike” includes 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;

The Code, in its present form, repeats the 1948 definition. There is no room for doubt now that Parliament has adopted an objective definition of “strike”, the elements of which are a cessation of

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work in combination or with a common understanding. Whether the motive be ulterior or expressed is of no import, the only requirement being the cessation pursuant to a common understanding. Here, the concurrent findings foreclose this aspect of this submission.

Refusal to cross a picket line lawfully established by another union cannot be a strike unless it falls within the definition of “strike” which fortunately for the purposes of this appeal is in substance the same in both statute and contract. This definition requires a cessation of work (a) in “combination” or (b) in “concert” or (c) “in accordance with a common understanding”. In this case the ‘concert’, the ‘combination’ or the ‘common understanding’ may be considered to have a common root in the principle of labour organization which forbids the crossing of picket lines. Section X(b) of the agreement with Local 1039, Article 12:02 of Local 273, and the definition in the Code, when given the ordinary meaning of “common understanding”, seem to be an attempt by the authors to provide for the very situation where the “cessation of work” results from a concept jointly held by the employees, such as the principle against the crossing of picket lines. The contract might have been more precise and included in the “strike” definition, the cessation of work resulting from a refusal to cross a picket line. However, the question is simply: do the words “in accordance with a common understanding” embrace the more specific provision that a cessation of work resulting from the application of the commonly understood principle of the labour movement that members of unions should not cross picket lines?” The argument is made more complex here because one of the three Collective Agreements does not define “strike” and none of the Agreements defines “stoppage of work”. Given the ordinary meaning of these words, there is no room to import a qualification which would exclude a stoppage of work resulting from one circumstance only, namely the honouring of a picket line by the employees comprising the bargaining unit.

Section XI (a) of the Local 1039 Agreement (Article 12.01 of the Local 1764 Agreement and

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Article 13:01 of the Local 273 Agreement) provides:

It is understood by the parties to this Agreement that this Agreement as written constitutes the full and only agreement between the parties and covers all working conditions to be observed by both. It is further agreed that no previous conditions, practices, customs, rules or agreements shall be recognized or permitted to modify the terms of this Agreement.

The only variation in terminology occurs in Article 12.01 of the Local 1764 Agreement which provides that this Collective Agreement constitutes the “only written Agreement between the parties” (emphasis added). The second sentence, however, is common to all three Agreements and excludes all previous “conditions” and “customs, rules or agreements”. Taking the two provisions and the clause mentioned above wherein the parties agreed that there would be no cessation of work and that the Collective Agreement would not be modified by prior practices and customs, one must conclude that the conduct of the Locals constitutes a breach by those Locals of their respective Collective Agreements. This same circumstance and argument were encountered by the Manitoba Court of Appeal in Winnipeg Builders’ Exchange et al. v. International Brotherhood of Electrical Workers, Local Union 2085 et al.[11], at p. 154, confirmed by this Court. The similar effect is the judgment of Ritchie J., in E. Gagnon and Others v. Foundation Maritime Limited[12], at pp. 438 and 445, writing on behalf of himself and two other members of this Court; and the judgment of Locke J. at p. 542.

A decision of the Queen’s Bench Division of the New Brunswick Supreme Court in Furness Withy and Company Limited and Maritime Employers Association v. International Longshoremen s Association, Local 273[13], concludes, in a case dealing with one of the Locals appearing in this appeal, that a refusal to cross a lawful picket line is not a breach either of the Code or of the Collective Agreement. With the greatest respect, I cannot agree that such a conclusion has validity in

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the circumstances found to exist here by the courts below. The Collective Agreement includes covenants by the union that there would be no strike and that the union would supply all labour as requested by the participating employers. The contract further provides that no previous custom or rule would apply and that the Collective Agreement “constitutes the full and only Agreement between the parties”. The learned Justice in the Furness Withy case, supra, relied on a provision in the New Brunswick Labour Relations Act not then before him (as the proceeding was under the Code) and not here applicable, to take the final step in concluding that the action of a group of union members in refusing to cross the lawful picket line as a result of “being persuaded not to do so” by the lawful picket line of another union. The case on the facts is different from that now before this Court because there the two unions represented employees of the same employer so it might be said that there was some element of persuasion by one union directed towards the membership of the other union and in some sense related to the labour relation interests of the members of the first union. Such is not the case here. I need go no further in disposing of this appeal, however, than to say that on the facts as found in the courts below, the reasoning and the principle applied in the Furness Withy decision, supra, has, in my respectful view, no application. Here we are dealing with common situs and not a common employer.

There remains to be considered an argument made by the Locals throughout inferentially, that is, that the effect of the injunctive order is to compel affirmatively the membership of the Locals to work for the Association contrary to the law of equity. The argument falls back upon the doctrine in Lumley v. Wagner[14], and may be divided into two compartments; firstly, that the injunction should not have issued against the union because the Code does not recognize the possibility that a trade union (in contrast to its members) can strike

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and, secondly, that the effect of the order is that of a mandatory injunction for the performance of personal services which the courts have historically refrained from issuing.

The precise wording adopted by the Queen’s Bench Division in its order is

that the Defendants, their officers, members and servants be restrained from continuing or participating in an illegal strike…

Section 107 of the Code defines “strike” as being a refusal to work “by employees”. Section 180 of the Code provides that “no trade union shall declare or authorize a strike”. In contrast to that language, subs. (2) of the section directs that “no employee shall participate in a strike”. The same distinction is found in the language of ss. 182 and 190.

The language adopted by the parties in the three Collective Agreements, however, is quite different. Article 11.01 of the Local 1764 Collective Agreement reads in part:

…the Union agrees with the Companies that during the lifetime of this Agreement there shall be no strike …

In almost identical terminology, the same provision is included in Section X(a) of the Local 1039 Agreement and Article 12:01 in the Local 273 Agreement. The position in law of a trade union under an agreement including like terminology was examined in detail in Re Polymer Corporation Ltd.[15] where a labour arbitration board, under the chairmanship of Professor Laskin, as he then was, concluded that:

The essential thing was to show official dissociation from the unlawful strike by separating union functionaries from the demonstrators.

The language of the contract placed an affirmative duty on the union acting through its leaders at all levels of the organization so as to reveal an intent through appropriate overt acts to abide by and to promote the terms of the Collective Agreement. The evidence on the record in these proceedings is quite the opposite. Not only is there no evidence of any action on the part of the union through its

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agents, that is its officers, to perform the undertaking given in the articles set forth above, but, on the contrary, the leaders of the Locals themselves failed to respond to the request by the Association to report for work. In the same way, the Locals violated their covenants in the Collective Agreements to supply the numbers of employees requisitioned by the employers in the manner prescribed in the Agreements. While the language adopted in the formal order is generally found in proceedings wherein officers and other individual members of the union are also named as defendants, it is not, in my view, invalidating to include “continuing or participating” in the injunctive order directed not only to the different Locals, but to “their officers, members and servants…”. It may be said that the addition of the “officers, members and servants” is superfluous because the Locals like other legal entities may only act through such persons. In these circumstances, it may well be more appropriate to adopt the more precise language of the House of Lords in the order issued in Marengo v. Daily Sketch and Sunday Graphic, Ltd.[16] per Lord Uthwatt at p. 407.

In my view the common form is open to objection, for as a matter of language it suggests that a direct order has been made against servants, workmen and agents. That, as I have said, is not the intention of the order. The substance of the matter is that the defendant is to be enjoined whatever method he may use in committing the prohibited acts. It is not, indeed, necessary to refer to servants, workmen and agents at all, but it may be desirable to mark the amplitude of the order by including in it some reference to them; I suggest (my suggestion is, perhaps, a one-sided compromise with tradition) that the judges might well consider whether injunction should not assume the form of restraining “the defendant by themselves, their servants workmen and agents or otherwise” from committing the prohibited acts. In the present case the defendants are a limited company and can act only through others. I invite your Lordships, therefore, to consider whether the injunction here should not take the form of restraining the “defendants by their servants workmen, agents or otherwise” from commission of the acts to be enjoined.

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However, such language has, for many years, been adopted in these injunctions (vide Re Tilco Plastics Ltd. v. Skurjat et al.[17]; Mitchell Bros. Truck Lines v. General Truck Drivers & Helpers Union, Local 31 and Walcott[18], no doubt for the good reason that it makes the impact and sense of the order clear to all those likely to be affected thereby and, in any event, such wording can hardly be said to harm any of the persons in law affected by the order.

As for the second branch of this submission, I adopt the language of Chief Justice Cartwright speaking in this Court in Winnipeg Builders’ Exchange et al. v. International Brotherhood of Electrical Workers, Local Union 2085 et al. supra, at p. 251:

There is a real difference between saying to one individual that he must go on working for another individual and saying to a group bound by a collective agreement that they must not take concerted action to break this contract and to disobey the statute law of the Province. Undoubtedly, as Freedman, J.A., points out, an effect of the order which has been upheld by the Court of Appeal in the case at bar was to require the striking employees to return to work. In my opinion that constituted no error in law; to hold otherwise would be to render illusory the protection afforded to the parties by a collective agreement and by the statute.

The British Columbia Court of Appeal, in the case of Pacific Press Ltd. v. Vancouver Typographical Union Local 226 et al.[19], issued an injunction restraining a union from “allowing or permitting” a strike. Robertson J.A. stated at p. 225:

In the case at bar, each of the unions covenanted with the respondent that the respondent “shall be protected by the Union against walkouts, strikes or boycotts by members of the Union and against any other form of concerted interference by them with the usual regular operation of any of its departments of labour”. For the Court merely to require the union not to “cause” any of those things would fall far short of requiring the union to perform its undertaking to “protect” the respondent therefrom; the words “permitting” and “allowing” are—or one of them, for I think they are synonymous in this

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context, is—essential to ensure that the union performs what is has covenanted to do. There is no good reason why each of the unions should not be ordered to do what it agreed to do.

Apart altogether from any fine, legal considerations and distinctions, the effect of an injunction to cease from continuing an illegal strike is quite a different thing in reality from a mandatory order directing an opera star to sing as in Lumley v. Wagner.[20]

For these reasons, in my view, the appeal should be dismissed with costs.

Appeal dismissed with costs.

Solicitors for the appellants: Teed & Teed, Saint John.

Solicitors for the respondents: Nason & Collier, Saint John.