agent, could be proceeded against under the Act, but the broader question as to whether the union had, by reason of the Provisions of the Trade Union Act and the Industrial in law was discussed in the O'Halloran and Robertson JJ.A. Both of these learned judges expressed the view that such a union was by virtue of these statutes of the province an entity distinct from its members or, as expressed by Robertson J.A., adopting what had been said by Scott L.J. in National Union of General and Municipal Workers v. Gillian', a persona juridica.
In a later case: Vancouver Machinery Depot v. United Steel Workers of America, the Court held that an international union which had not been actually appointed a bargaining agent under the Industrial Conciliation and Arbitration Act, 1947, was none the less a legal entity against which an action for damages might be maintained. Sidney Smith J.A., with whom Sloan C.J. and O'Halloran J.A. agreed, said in part (p. 328):
Were it not for the provisions of the Trade-unions Act and the Industrial Relations Act if the union was simply an unincorporated association of workmen, it would not, in my opinion, be an entity which might be sued by name, and what was said by Duff J. and by Anglin J. (with whom Brodeur J. agreed) in Local Union v. Williams above referred to would apply. Such an unincorporated body not being an entity known to the law would be incapable of entering into a contract: Canada Morning News Co. v. Thompson . That, however, is not the present case.
I agree with the opinions expressed by the learned judges of the Court of Appeal in the cases to which I have above referred. The granting of these rights, powers and immunities to these unincorporated associations or bodies is quite inconsistent with the idea that it was not intended that they S.C.R.
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 J. 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 decisions of this Court in Society Brand Clothes Ltd. v. Amalgamated Clothing Workers of America, and International Ladies Garment Workers Union v. Rothman', do not conflict with this conclusion. When those actions were instituted there was no legislation in the Province of Quebec similar to the Trade Union Act of 1902 and the Labour Relations Act of British Columbia above referred to. There remains the question as to whether the evidence discloses a cause of action. The appellant says that what was done by its servants was nothing more than to insist upon compliance by the City Construction Co. Ltd. with the terms of cl. 10 of the collective agreement.
No doubt there was coercion exercised by Carbonneau in threatening the respondent that if he did not join the union he would have him put off the job, and it is equally clear that for Therien to join the union was legally impossible. It was not, however, this wTongful act which was the cause of the injury complained of, and if there is a cause of action it must be found elsewhere.
In addition to ss. 4 and 6 of the Labour Relations Act which are above quoted, ss. 21 and 22 are to be considered. Section 21 reads:
Section 22, so far as relevant, reads:
The appellant and the City Construction Company Ltd., in compliance with this requirement, had provided for the settlement of disputes as to the interpretation of the agreement by cl. 16 above referred to.
The evidence shows that the employer wished to continue its arrangement with the respondent in his capacity as an independent contractor and that Therien rightly took the attitude that he would not join the union, presumably because the Act forbade him to do so.
Clause 3 of the contract provided that its terms should apply to all sub-contractors or sub-contracts let by the employer and it might perhaps be contended that this applied to an independent contractor supplying trucks and services such as did the respondent. The learned trial judge held that cl. 10 did not apply to an independent contractor such as the respondent who drove his own truck. The employer was apparently of this opinion and the matter was one which should have been dealt with accordingly under the grievance procedure clause of the contract. The appellant, however, without resorting to this, threatened to S.C.R.
placard jobs upon which the employer was engaged which, as found by the learned trial judge, meant that the union would, by means of a picket line carrying placards, take such steps as would have the effect of obstructing the operations of the company and making it appear to the public and other labour unions that the company had broken its contract with the defendant union or was indulging in unfair labour practices. This conduct was a breach both of the terms of the agreement and of s. 21 of the Labour Relations Act. That the decision of the City Construction Co. Ltd. to terminate its longstanding arrangement with the respondent resulted from these wrongful acts is undoubted.
As it was said by Lord Dunedin in Sorrell v. Smith', in summarizing what had been decided in Mogul Steamship Company v. M'Gregor , Allen v. Flood' and Quinn v. Leathem', even though the dominating motive in a certain course of action may be the furtherance of your own business or your own interests, you are not entitled to interfere with another man's method of gaining his living by illegal means.
I agree with Sheppard J.A. that in relying upon these sections of the Act the respondent is asserting, not a statutory cause of action, but a common law cause of action, and that to ascertain whether the means employed were illegal inquiry may be made both at common law and of the statute law.
While in the concluding paragraph of the appellant's factum it is said that the action was barred by the terms of
s. 2 of the Trade Unions Act, R.S.B.C. 1948, c. 342, since there is no evidence that the members of the union or its governing body authorized or concurred in the wrongful act counsel for the appellant did not argue the point before us. If it was intended to raise any such defence, the facts relied upon should have been pleaded for the reasons stated by my brother Cartwright. Since no mention is made of the matter in the the trial judge and in the Court of Appeal, it is apparent that the question was not argued in either Court.
WHEREAS by virtue of Section 103 of the Supreme Court Act, R.S.C. 1952, c. 259, as amended by R.S.C. 1952, c. 335, and the Statutes of Canada, 1956, c. 48, the undersigned judges of the Supreme Court of Canada are empowered to make general rules and orders as therein provided;
IT IS HEREBY ORDERED that the Rules of the Supreme Court of Canada be and they are hereby amended in accordance with the paragraphs numbered 1 to 21, both inclusive, which follow:
1. That Rule 6 is amended by adding, in the second line thereof after the word "from", the words "in Form P" so that Rule 6 now reads as 6. The case provided for by the Supreme Court Act certified under the seal of the court appealed from in Form P, shall be filed in the office of the Registrar, and in addition to the proceedings mentioned in said Act, shall invariably contain a transcript of all the opinions or reasons for their judgment delivered by the judges of the court or courts below, or a certificate signed by the clerk of such court or courts or an affidavit that such reasons cannot be procured, and stating the efforts made to obtain the same. The case shall also contain a copy of the agreement of the parties as to its contents or a copy of the order settling it.
2. That after "Form 0" is added "Form P" which reads as follows: FORM P (R. 6)
Name of Court appealed from
Style of Cause of Court appealed from without abbreviations
I, the undersigned, Registrar of (here insert name of Court appealed from) DO HEREBY CERTIFY that the foregoing case in ... volume(s), being pages numbered one to ... which (if applicable add-"together with exhibits numbered ... and ... with respect to which exhibits the Registrar of the Supreme Court of Canada has dispensed with their printing and which exhibits are reproduced in a supplemental volume"-or as the case may be) is the case as settled by order of ... dated ... (or, "is the case agreed upon by the parties to the appeal, by their Consent as to Contents of Case dated . .. ").
AND I DO FURTHER CERTIFY that all judgments and orders appearing therein have been settled and signed in the form in which they appear and where required entered, and that there are no recorded reasons for judgment other than those appearing in the said case.
IN TESTIMONY WHEREOF I have hereunto subscribed my hand and affixed the seal of the said (insert name of Court appealed from), this ... day of ..........
3. That Rule 9 is amended to read as follows:
9. If the appellant does not file his case in appeal with the Registrar and serve three printed copies thereof upon the solicitors for each of the other parties to the appeal, within fifty-six days after the notice of appeal has been served or filed, whichever be the former, he shall be considered as not duly prosecuting his appeal, and the respondent may move to dismiss the appeal pursuant to the provisions of the Act in that behalf.
4. That Rule 10 is amended to read as follows:
10. When approval of security is required and such security has been approved in the Court appealed from, the order approving the security or a certified copy thereof shall be filed with the Registrar within the time prescribed for bringing an appeal by section 64 or allowed under section 65 of the Supreme Court Act and the case shall be accompanied by a certificate under the seal of the court below, stating that the appellant has given proper security to the satisfaction of the court whose judgment is appealed from, or a judge thereof, and setting forth the nature of the security to the amount of five hundred dollars as required by the Act, and a copy of any bond or other instrument by which security may have been given, shall be annexed to the certificate.
5. That Rule 12 is amended to read as follows:
12. The case shall be printed on white paper of good quality, and on one side of the paper only with the printed pages to the left, and the type shall 'be 12 point (but 10 point shall 'be used in printing accounts or tabular matter). If the printing is by the stencil or offset process, where cutting of stencils or plates is done by a typewriter, the type shall not be smaller than standard "elite" or larger than standard "pica".
(2) The size of the case shall be eleven inches by eight and onehalf inches and every tenth line shall be numbered in the margin. The number of lines on each page shall be about 47, exclusive of headings which shall not be counted in the marginal numbering, and there shall be at least 500 words in every printed page.
(3) The case shall be bound in the following sequence and shall consist of a cover, coloured grey, title page, index, and the following parts:
- Pleadings, rules, orders, entries or other proceedings (excepting the Registrar's and solicitor's certificates) in chronological order.
All judgments in the courts below and the' reasons for judgment;
the certificate of the Registrar of the Court appealed from (FORM P), the certificate of the solicitor (FORM 0) and, finally, not less than three blank pages. Such blank pages shall appear at the end of each volume of the case.
(4) Every page, except the title page and facsimile reproduced exhibits shall have a headline which shall state the nature of the immediately following material, and
(a) In the case of pleadings the description of the pleadings, the name of the party on whose behalf the same was filed, and the date of the pleading;
(b) In the case of affidavits, their relationship to the action or any motion related thereto, the name of the deponent, the date of the affidavit and on whose behalf it was submitted;
(c) In the case of rules, orders, or other proceedings, their nature, the name of the authority for issuance and their date;
(d) In the case of evidence, the name of the witness showing for whom called and whether examination-in-chief, cross-examination, reexamination, or as the case may be;
(e) In the case of judgments, the words "Judgment of" followed by the name of the Court and its date;
(f) In the case of reasons for judgment, the words "Reasons for Judgment of" followed by the name of the judge, the Court and the date.
(5) Where evidence is printed the questions shall be preceded by the letter "Q", and the answer, which shall continue on the line on which the question concludes, by the letter "A". There shall be no double-spacing between an answer and the following question to the same witness by the same person.
(6) All printed or written documents filed as exhibits shall be grouped together and printed in chronological order, subject to the following:
(a) documents having common characteristics shall be arranged in separate groups in order of their dates, if any;
(b) exhibits required to be reproduced in facsimile may, if numerous or of special size, be grouped together in a separate volume. If the whole case will require two volumes or more and the solicitor considers that it will facilitate reference to the exhibits they may all be reproduced in the final volume or vohimes and on the cover after the volume number shall appear the word "Exhibits" in bold letters. When exhibits are reproduced in a special volume, the page numbers shall be the same as though printed in the normal manner.
(7) There shall be printed at the top of each document the exhibit number under which it was filed.
(8) All pleadings, judgments and other documents shall be printed in full unless dispensed with by the Registrar, and the style of cause shall not be reproduced except where two or more actions are the basis of the appeal when an abbreviated style of cause shall be inserted. (9) The title page shall be entitled "In the Supreme Court of Canada" and immediately thereunder shall appear the name of the Court and the province from which the appeal comes, and the style of cause, without abbreviation, putting the appellant's name first, as A.B.
(Plaintiff or Defendant, as the case may be),
(Defendant or Plaintiff, as the case may be),
Thereafter shall appear "Case on Appeal" between appropriate parallel lines. In the style of cause on the title page, in contradistinction from the cover, there shall be no abbreviation or translation.
(10) The cover shall be printed on grey stock and shall be printed as required for the title page except that the style of cause may be abbreviated in an appropriate manner and by adding below "Case on Appeal", the names and addresses of the solicitors for the parties in a column to the left with the names and addresses of such solicitors' agents at Ottawa in a column to the right. If the cover does not have an abbreviated style of cause the same type may be used for the title page.
(11) Where the case exceeds 300 pages, it shall be bound in separate volumes of not more than about 200 pages each.
(12) Without derogating from quality and clarity of printing, it shall be the duty of the solicitor to reduce the cost of printing to a. minimum. The price to be taxed for printing 30 copies in the prescribed form shall not exceed 60 cents for every 100 words for each printed page plus any sums paid for Dominion, Provincial and Municipal sales taxes. The Registrar shall have power in a proper case to exceed this allowance.
(13) The entire index shall be printed at the beginning of each volume of the case, which shall set out in detail the entire contents of the case in four parts, as follows:
- Each pleading, rule, order, entry or other document with its date in chronological order (except the certificate of the Registrar of the Court appealed from and the solicitor's certificate pursuant to Rule 13(2), which two certificates shall in that order be inserted immediately after Part IV).
- Each witness by name, stating whether for plaintiff or defendant, examination-in-chief, cross-examination, or examination by the Court, or as the case may be, giving the page.
- Each document forming an exhibit, or part thereof, with its description, date and numlber, in the order in which it was filed, and a mention of the page at which it is referred to for the first time in evidence. PART IV
- All judgments in the Courts below, with reasons for judgment and the name of the judge delivering the same, together with the date thereof. If a judgment is given without recorded reasons, in the column for page numbers shall be inserted the phrase "no recorded reasons". Thereafter shall follow reference to the certificate as to the case of the Registrar of the Court appealed from and the solicitor pursuant to Rule 13(2).
(14) The pages of the index shall be numbered with small Roman numerals and the remaining pages shall be numbered in the usual manner with the numbers placed in the upper left-hand corner. Nothing shall appear above the page number.
6. That Form 0 as authorized by Rule 13(2) is amended to read as FORM 0 (R. 13(2))
I ........................
hereby certify that I have closely examined the annexed print of the case in appeal to the Supreme Court of Canada and verily believe that the same is a true and correct reproduction of the originals of which they purport to be copies and that all reasonable methods have been taken to attain that end and that the same has been proofread.
A solicitor for the Appellant (or his Ottawa agent). 7. That Rules 18 and 19 are repealed.
8. That a new Rule 18 is enacted as follows:
18. Where the validity of a Statute of the Parliament of Canada or a Statute of a Legislature of a Province of Canada is brought in question in an appeal, a notice of such appeal, stating the matter of jurisdiction raised, shall be served on the Attorney General of Canada and the Attorneys General of all the Provinces within twenty days of the service of the notice of appeal required by the Act. Such notice shall further provide that if an Attorney General desires to intervene application for such purpose shall be made at a time stated in the notice and such time so stated shall be a time fixed by the Chief Justice or 0 Judge upon a previous ex parte application for such purpose.
9. That Rule 30 is amended by adding the following new paragraph at the end thereof:
4. A concise statement stating the nature of the order that the party desires that the Court make, including any special disposition w\rith regard to costs.
10. That Rule 31 is repealed and the following is substituted therefor: 31. The factums or points for argument in appeal shall be printed in, the same form and manner as hereinbefore provided for with regard to the case in appeal, and shall include an index after which all pages shall be numbered consecutively. After Part 4, or the last appendix, if there are appendices, there shall be added, commencing on a separate page, all authorities to 'be referred to by counsel in the order it is anticipated they will be referred to. Following such list of authorities there shall be no less than three blank pages. The covers of the appellants' factums shall be coloured buff and the covers of the respondents' factums, including those of respondents ,who are also cross-appellants, shall be coloured green. The Registrar shall not receive a factum unless it complies with the hereinbefoie mentioned requirements.
11. That the heading to Rule 33 is repealed and the following is substituted therefor:
Appellant may inscribe for Ex Parte Hearing if Respondent's factum not filed.
12. That Rule 34- and the heading thereto are repealed and the following substituted therefor:
Setting Aside Hearing Ex Parte
34.. When an appeal is inscribed for hearing ex parte pursuant to Rule 33 the respondent may apply to a Judge in Chambers, sufficiently supported by affidavits, to set aside or discharge such inscription in so far only as such inscription is for an ex parte hearing and upon such setting aside or discharge the appeal shall proceed as though the factum of the respondent had been filed in time as otherwise provided by these Rules.
13. That Rule 38 is repealed and the following is substituted therefor: RULE 38. Except 'by leave on special grounds, no more than two counsel for each party shall be heard on any appeal and but one counsel shall be heard in reply; and on motions not more than one counsel shall be heard for each party and in reply.
14. That Rule 39 is repealed and the following is substituted therefor: 39. The Chief'Justice or, at his request, one of the puisne judges, may postpone the hearing of any appeal or matter until any future day during the same session, or at any following session. 15. That after Rule 56B is added a new Rule 56C as follows: RULE 56C. (1) Every notice of motion shall concisely enumerate every ground upon which it is based.
(2) The affidavits in support of a motion shall set forth the facts relied upon in support of the motion.
(3) The material in support of a motion for leave to appeal and every motion in Court shall be clearly reproduced on white paper, eleven inches by eight and one-half inches, typed or printed on the left-hand side only and assembled in the following manner:- (a) There shall be a cover page entitled "In the Supreme Court of Canada" followed by the name of the court appealed from and the complete style of cause; below the style of cause shall be stated the nature of the motion; thereunder shall appear the names and addresses of the respective solicitors for the parties and their agents at Ottawa;
(b) A complete index indicating the dates of indexed material shall be provided and all subsequent pages shall be numbered .in one series;
(c) Thereafter, the material shall be placed in the following order: (i) Notice of Motion,
(ii) Affidavits in support,
(iii) Other material relied upon, other than judgments and reasons for judgment, in chronological order,
(iv) Judgments and reasons for judgment in chronological order, and if a Court has delivered judgment without recorded reasons it shall be so stated in the index,
(v) Memorandum of Argument,
(vi) On a separate page, a table of authorities to be referred to by counsel, in the sequence that it is anticipated they will be referred to, and
(vii) No less than three blank pages.
(4) The Registrar shall not file the material to be used on a motion without the leave of a judge, if the same does not comply with the foregoing requirements.
(5) No notice of motion may be filed by mail but only through an Ottawa agent.
16. That Rule 62 is repealed and the following is substituted therefor: 62. When a notice of discontinuance has been given by an appellant to a respondent, the latter shall be entitled to have his costs taxed by the Registrar without any order.
17. The heading "Translation of Factum" following Rule 101 is repealed and a new Rule 102 is added as follows:
102. When a respondent, who has given notice of crossappeal is served with a notice of discontinuance by the appellant, and he desires to proceed with his cross-appeal, he shall, within fourteen days of the filing with the Registrar of the notice of discontinuance, serve all other parties to the appeal and file with the Registrar a notice of his intentions so to do. Thereafter, such respondent crossappellant shall be deemed the appellant to the appeal. Within fourteen days of the filing of such notice with the Registrar the said crossappellant shall apply to a Judge or a Judge in Chambers for such directions as may be requisite in order that the appeal shall proceed as though in due course.
18. That new Rules 105A and 105B are added after Rule 105 as RULE 105A. After five years from the date of the last proceedings in the appeal, as appears by the Court docket, money deposited as security may be paid out to the solicitor or solicitors or their agents at Ottawa of record in such appeal who has paid the security into Court, or their successors, all of which shall be verified by affidavit, upon notice of application for payment out to the solicitors for the respondent or their agents at Ottawa of record in such appeal, and if such latter solicitors or their said agents cannot be found after search, deemed reasonable to the Registrar, such notice may be given to the said solicitors for the respondent and their said agents and the successors of both of them by posting a copy thereof on the notice board at the Office of the Registrar kept for such purposes not less than 28 days prior to the return to the application therein mentioned.
105B. If, after seven years from the last proceeding in the appeal, as appears by the Court docket, money with respect to security for such appeal still remains in Court, the Registrar may on his own motion transfer such security to the Consolidated Revenue Fund of Canada. After such transfer no deposit bearing interest shall bear any further interest.
19. That new Rule 143 is added to the Rules:
143. No business with the Registrar's office may be conducted by correspondence.
20. That the following is substituted for Form H to the Rules: FORM H (R. 90)
On filing each notice of appeal ....................
$ 30.00 If the notice of appeal is accompanied by a notice motion for permission to appeal in forma pauperis this payment shall be deferred until the outcome of such motion. This disbursement is not payable with respect to a notice of cross-appeal.
Item 1 shall include all disbursements up to and including the hearing or rehearing of the appeal on the merits and in the case of discontinuance before hearing, includes taxation of costs.
On settling minutes of judgment or on taxation of costs, after a judgment disposing of the appeal .............. $ 30.00 NOTE: Item 2 shall include all fees on settling judgment, taxation, allocatur, and one copy of the judgment for the courts below.
For each copy of any document, paper, or proceeding or any extract therefrom, per folio .....................
.10 Where copying is by a photographic process the cost shall be determined by the size of matrix required for reproduction as follows:
81" x 11" ............................
x 14" ..........................
.30 14" x 17" ...........................
.60 For drawing certificate and certifying any copy of any docum ent
.........................................
3.00 For comparing, examining and certifying transcript record on appeal to the Privy Council .............. 10.00 21. That the following is substituted for Form I to the Rules: FORM I (R. 91)
To be taxed between party and party in the Supreme Court of Canada: On stated case required by
section 67 of the Act when prepared and agreed upon by the parties to the cause, including attendance on the judge to settle the same, if necessary, to each party .............................
50.00 Subject to be increased by order of the Court or a Judge in Chambers.
...................................
20.00 On consent to appeal directly to the Supreme Court from the court of original jurisdiction ......................
10.00 Notice of giving security .............................
5.00 Attendance on giving security ........................
10.00 On motion to allow security in the discretion of the Registrar to
..........................................
30.00 On motion to quash proceedings under
section 45 according to the discretion of the Registrar t,o ...................
200.00 Subject to be increased -by order of the Court or of a Judge in Chambers.
On motion for special leave to appeal under
section 41 according to the discretion of the Registrar to .......... 200.00 Subject to be increased by order of the Court or of a Judge in Chambers.
On other motions before the Court according to the discretion of the Registrar to ...........................
$ 100.00 Subject to be increased by order of the Court or of a Judge in Chambers.
Upon ex parte or uncontested motions before the Registrar, including affidavits, etc.............................
15.00 Subject to be increased in the discretion of the Registrar to a sum not exceeding .............................
25.00 Upon motions before the Registrar contested in substance, including affidavits, etc..............................
25.00 Subject to be increased in the discretion of the Registrar in special circumstances to a sum not exceeding ........ 75.00 Upon motions before a Judge, including affidavits, etc. .. 50.00 Subject to -be increased in the discretion of the Judge or a Judge in Chambers.
Upon motions heard by a Judge sitting as a Judge in Chambers, including affidavits, etc...................
25.00 Subject to be increased by the Judge or a Judge in Chambers.
Upon any abandoned motion, whether or not the same has been set down for hearing, one-half the minimum fee provided for by this tariff for such motion, but not in any event to exceed the sum of ..........................
25.00 The fees for motions to cover all preliminary proceedings and notices.
For preparing the copies of a record or brief containing the material required to be filed under the provisions of Rule 56(3), per folio of 100 words ....................
.30 On factums, including preparation for appeal in the discretion of the Registrar to .........................
200.00 Subject to be increased by order of the Court or a Judge in Chambers.
For engrossing for printer copy of case as settled, when such engrossed copy is necessarily and properly required, per folio of 100 words ................................
.20 For correcting and superintending printing, per 100 words .10 On motion for the dismissal of the appeal if case be not proceeded with, made under
section 76 or under Rules 9 or 32, in the discretion of the Registrar to ............. 35.00 Subject to be increased by order of the Court or a Judge in Chambers.
Counsel fee on the cross-examination of a deponent under Rule 58, in the discretion of the Registrar to .......... 50.00 Subject to be increased in special circumstances by order of the Court or a Judge in Chambers.
Statutes and regulations cited
-
Trade Unions Act
-
-
Unresolved citations
-
ss. 4
-
6 of the Labour Relations Act
-
ss. 21
-
22
-
Section 21
-
Section 22
-
s. 21 of the Labour Relations Act