Faubert and Watts v. Temagami Mining Co. Ltd.

in part:

The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question Comm. . . The reasonable man is presumed to be free both from over-apprehen- Locke J. sion and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in its application a subjective element. It is still left to the judge to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen.

In my opinion this appeal fails and should be dismissed with costs if they are demanded.

:-The facts out of which this appeal arises are stated in the reasons of other members of the Court and in those of Morden J.A., who delivered the unanimous judgment of the Court of Appeal'.

In approaching the question whether the jury's verdict was rightly set aside it is necessary to bear in mind certain well settled principles, which are sufficiently stated in the following three quotations:

In Jamieson v. Harris

, Nesbitt J., speaking for the majority of the Court, said:

We fully recognize the principle that if the verdict could fairly be supported upon any evidence upon which reasonable men might come to a conclusion in its favour that it should not be set aside because the appellate court did not agree with the conclusions reached. We also fully agree that answers by a jury to questions should be given the fullest possible effect, and, if it is possible to support the same by any reasonable construction, they should be supported.

In C.N.R. v. Muller, Duff C.J.C., speaking for the majority of the Court, said:

We premise that it is not the function of this Court, as it was not the duty of the Court of Appeal to review the findings of fact at which the jury arrived. Those findings are conclusive unless they are so wholly unreasonable as to show that the jury could not have been acting judicially. In construing the findings, moreover, one must not apply a too rigorous critical method; if, on a fair interpretation of them, they can be supported upon a reasonable view of the evidence adduced, effect should be given to them.

1 [19431 A.C. 448 at 457.

[1959] O.R. 197, D.L.R. (2d) 204.

' (1905), 35 S.C.R. 625 at 631.

4 [19341 1 D.L.R. 768 at 769, C.R.C. 329.

In Sigurdson v. B.C. Electric Railway Co. Ltd.', Lord Tucker, delivering the reasons of the Judicial Committee, said:

Before turning to examine the summing-up in the light of these Comm.

criticisms it may be well to observe that the issues involved in this and Cartwright J.other similar cases turn upon questions of fact and that when a jury is the tribunal of fact to which those issues are committed their findingssubject to questions of misdirection or misreception of evidence-cannot be set aside unless they are of such a nature that having regard to the evidence no reasonable men could have arrived thereat. It is not for an appellate court however much it may differ from the conclusions reached by the jury to substitute its own findings for those of the jury. I, .of course, do not suggest that these principles were absent from the minds of the learned Justices of Appeal. It was by virtue of their application that, in dealing with the jury's second finding of negligence, Morden J.A. said: The second ground of negligence found by the jury was that "the defendant failed to supply supervision". Counsel for the appellant made a vigorous attack upon this finding. He submitted that if it meant the defendant should have provided attendants whose duty it would be to prevent passengers jostling (as pleaded in paragraph 4(d)) then it was not a good finding in law. The respondent's counsel submitted that the jury meant the failure of the defendant to have an attendant immediately beside the escalator whose duty it would have been to stop the escalator at the time the riders fell. (Paragraph 4(a)). There was evidence that the plaintiff suffered the greater part of her injuries after her fall and as she was being carried up the escalator lying under the bodies of two or three persons. For the purpose of this appeal, I am prepared to construe liberally this finding of the jury and accept the interpretation the respondent's counsel places on it.

In my view, read in the light of the evidence and of the full and careful charge of the learned trial judge, this answer of the jury should be construed as a finding that the defendant ought to have maintained such a system of supervision of its escalator that it could and would be promptly stopped if an emergency arose calling for such action.

The question then is whether, so construed, the answer of the jury supports the verdict.

I agree with the view implicit in the passage from the reasons of Morden J.A., quoted above, that there was evidence upon which it was open to the jury to find that the greater part of the appellant's injuries would have been avoided if the escalator had been stopped with reasonable promptitude after her fall.

1[19531 A.C. 291 at 298-9, [1952] 4 DL.R. 1, 69 C.R.T.C. 149. [19601 The mechanical means provided for stopping the escalator consisted of a red button at the top and a similar one at the bottom of the escalator and a third in a collector's

"cage" situated some 75 or 80 feet from the bottom of the escalator and from which it was said the employee stationed there would have a view of the escalator. The employee who was on duty in this "cage" at the time of the accident died prior to the trial and his evidence had not been taken de bene esse. It is undisputed that the escalator was not stopped at any time. When the appellant was knocked down she was about one third of the way up the escalator. The time taken to carry a passenger from the bottom to the top was about twenty seconds.

It is clear that when the three men ahead of her and the appellant herself fell there must have been a visible state of emergency; it is also clear that there were screams from the appellant and her friend; but nothing was done by anyone to stop the escalator. No explanation was forthcoming as to why the employee in the "cage" did n6thing. If an explanation was required the onus of furnishing it rested upon the respondent whose employee he was and in whose knowledge the explanation, if any, must have lain.

In these circumstances it was, I think, open to the jury to find that the respondent was on the horns of a dilemma;

either it had not instructed its employee to stop the escalator at once if an emergency arose or if it had given adequate instructions its employee had disregarded them.

There was evidence that some escalators in this country and in the United States are operated without attendants, but there was also a considerable body of evidence that others have properly instructed attendants stationed by them. Notably, it was shown that in several large stores in the city of Toronto there are either attendants stationed at the escalators or clerks, in much closer proximity thereto than was the employee of the respondent in this case, who are shown how to stop the escalator and instructed to stop it at once if an emergency arises.

The following passage from Phipson on Evidence, 9th ed., p. 116, was cited with approval in this Court in Fagnan v. Ure et al.':

On questions involving negligence, reasonableness, and other qualities of conduct, when the criterion to be adopted is not clear, the acts or pre- Cartwright J. cautions proper to be taken under the circumstances, and even the general practice of the community, or in some cases of the particular individuals, are admissible as affording a measure by which the conduct in question may be gauged. Such evidence does not, of course, bind the jury as a fixed legal standard; it is merely one, amongst other circumstances, by which they may be guided, as was also the following statement of Holmes J. in Texas and Pacific Railway Company v. Behymer :

What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.

The duty owed by the respondent to the appellant was, as is pointed out in the reasons of the Chief Justice, to use all due, proper and reasonable care, and the care required is of a very high degree. It is of a higher degree, in my opinion, than that owed to their customers by those storekeepers who were shown in the evidence to have taken the precautions I have described above.

In a case such as this where the precautions to be taken are not prescribed by statute "the standard of duty must be fixed by the verdict of a jury", to use the words of Lord Wright in Lochgelly Iron and Coal Co. v. M'Mullan . In my view, the learned trial judge could not properly have withdrawn this issue from the jury; there was evidence, notably that of the established practice in other Toronto buildings, to support their findings.

In McCannell v. McLean", Duff C.J.C., in delivering the judgment of the Court, said:

There being some evidence for the jury, that is to say, the evidence being of such a character that the trial judge could not properly have withdrawn the issue from the jury, the question whether, in such circumstances, a jury, considering the evidence as a whole, could not reasonably arrive at a given finding may be, it is obvious, a question of not a little nicety; and the power vested in the court of appeal to set aside a verdict as against the weight of evidence in that sense is one which ought to be 1 [19581 S.C.R. 377 at 381, 13 D.L.R. (2d) 273.

2 U.S. at 470.

3 [19341 A.C. 1 at 23.

4 [19371 S.C.R. 341 at 345, 2 DL.R. 639.

In this case I have the misfortune to differ from the

Com. opinion of the learned Justices of Appeal and that of other members of this Court. I do not think it can be affirmed that no jury acting reasonably could have found as they did on the second ground. I do not find it necessary to consider the other ground on which they based their verdict.

I would allow the appeal and restore the judgment at the trial with costs throughout.

Appeal dismissed with costs if demanded, J.

dissenting.

Rogers, Howie & Freeman, Toronto.

Toronto.

INTERNATIONAL

BROTHERHOOD

OF

TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN

AND HELPERS, BUILDING MATERIAL, CONSTRUC- TION

AND

FUEL TRUCK

DRIVERS,

LOCAL

NO.

213,

VANCOUVER,

BRITISH

COLUMBIA,

Jan.26 A.F. OF L. (Defendant)....

. . . . . ....

HENRY THERIEN (Plaintiff) ..........

7-The agreement with the defendant, a trade union within the definition of that expression in the Labour Relations Act. The plaintiff agreed INTERto hire only union members, but refused to join the union himself, presumably because he could not lawfully do so. The union threatened to put his truck off the job and to picket the firm. Finally, the firm discontinued doing business with him. The trial judge maintained the action for damages and granted an injunction restraining the union from interfering with the plaintiff in the operation of his business. This judgment was affirmed by the Court of Appeal. The union appealed to this Court and contended that it was not a legal entity which could be found liable in tort, and that the evidence did not disclose a cause of action.

Held: The appeal should be dismissed.

Per Curiam: The plaintiff, being a trade union certified as a bargaining agent under the Labour Relations Act, was a legal entity which could be made liable in name for damages either for breach of a provision of the Act or under the common law. The granting by the Legislature, of rights, powers and immunities to trade unions was 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. Taff Vale Railway v. Amalgamated Society of Railway Servants, [19011 A.C. 426, applied; Orchard v. Tunney, [19571 S.C.R. 436; Society Brand Clothes v. Amalgamated Clothing Workers of America, [19311 S.C.R. 321; International Ladies Garment Workers Union v. Rothman, [19411 S.C.R. 388, distinguished.

The evidence disclosed a cause of action. By threatening to picket the jobs, instead of resorting to the grievance procedure in the agreement, the union was in breach both of the terms of the agreement and of s. 21 of the Labour Relations Act. This resulted in the injurious termination of the plaintiff's arrangement with the firm. The plaintiff was asserting a common law cause of action and to ascertain whether the means employed were illegal inquiry could be made both at common law and of the statute law.

Per Kerwin CJ. and Cartwright J.: Assuming, without deciding, that the wrongful act committed by the union was "in connection with a trade or labour dispute", s. 2 of the Trade-unions Act did not assist the union in the circumstances of this case. The issue as to whether the Act had been authorized by the union was not raised either on the pleadings or in the evidence.

The argument that the union did not intend to ignore the grievance procedure in the agreement, failed on the facts.

Per Taschereau and Locke JJ.: While it was alleged before this Court that the wrongful acts were not authorized or concurred in by the union, the point was not argued. If it was intended to raise such a defence, the facts relied upon should have been pleaded.

Section 2 of the Trade-unions Act had no bearing upon the matter. The threats were not done in connection with any trade or labour dispute within the meaning of the Act, which contemplates disputes between employers and employees.

Per Martland J.: There was, in this case, no trade or labour dispute within the meaning of s. 2 of the Trade-unions Act. A difference of view between an employer and employees on the interpretation of a collective agreement, in the circumstances of this case, did not constitute "a trade or labour dispute" within the section.

APPEAL from a judgment of the Court of Appeal for British Columbia', affirming a judgment of Clyne J. Appeal dismissed.

THE CHIEF JUSTICE :-I am in substantial agreement with the reasons of Locke J. on the two main questions, i.e., that the appellant is an entity which can be sued and that it committed an actionable wrong.

As to the first, the point is raised at p. 7 of the appellant's factum, where it is stated "The Union is not a suable entity: .

......

. (c) under the Trade Unions Act." This is expanded at p. 19 of the factum where s. 2 of the Tradeunions Act, R.S.B.C. 1948, c. 342, is set out in para. (1) of (c), and at p. 20 the following appears:

(2) It is submitted that this section does not make a trade union a legal entity. It bears no resemblance to the trade union legislation that was before the Courts in the Taff Vale Case, 1901 A.C. 426.

(3) It is further submitted that section 2 of The Trade Unions Act prohibits the imposition of liability in this case, because there is no evidence that the members of the appellant union or its governing body authorized or concurred in any wrongful act.

The point was not considered in the Courts below and certainly it is not mentioned in any of the reasons for judgment, but, for the reasons given by Cartwright J., I am of opinion that the point fails. Like him, I am assuming that the wrongful act committed by the appellant was "in connection with any . . . trade or labour dispute", but I am expressing no opinion as to whether or not that is so. On the second point as to whether it should be found that the appellant did not intend to ignore the "grievance procedure" referred to in cl. 16 of the Collective Agreement 1(1959), D.L.R. (2d) W.W.R.

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