could be enforced at law even by the union itself, which has its own method of enforcement by going out on strike. 1920 Judgment. The evidence of the plaintiff as to the terms of his employ- FULLERTON, ment is as follows: Q. Were you hired for any definite period by the Canadian Pacific Company? A. Q. Yes. A. They were at liberty to dismiss me at any time they saw fit, or I could have resigned at any time. Q. Your pay was every fortnight? A. Every thirty days. The plaintiff has therefore wholly failed to establish the contract of hiring set up in his pleadings and cannot therefore recover for wrongful dismissal. I would dismiss the appeal with costs and allow the crossappeal with costs, including the costs of the trial. DENNISTOUN, J.A.-The plaintiff brought action against the defendant company asking damages for libel and for wrongful dismissal. The Judge at the trial entered a nonsuit on the claim for libel and gave judgment on the claim for wrongful dismissal for $425 on the verdict of the jury. The plaintiff appeals against the nonsuit and the defendant crossappeals against the verdict. To deal first with the claim for wrongful dismissal, the plaintiff puts his case as follows: He was in July, 1917, employed as a telegraph operator by the Canadian Pacific Railway Company at Regina. His wages were estimated on a monthly basis and paid fortnightly and the learned trial Judge considered this to be evidence of a monthly hiring although the plaintiff said "They were at liberty to discharge me at any time they saw fit, or I could have resigned at any time." I accept the view of the trial Judge that there was some evidence of a monthly hiring but. do not propose to consider the matter further as the case does not appear to turn on that point. About August 1, the plaintiff's rooms were examined under a search warrant when a portion of a shipment of cantaloupes which had been stolen from a car in the Regina yard was found in his possession. He was arrested and admitted to bail. A few days later he received a preliminary hearing be J.A. 1920 fore a magistrate and was committed for trial at the next asJudgment. sizes, being again released on bail. DENNISTOUN, The district superintendent of the railway, Mr. Chown, then sent for him and asked him how the cantaloupes got into his possession. He refused to answer on the advice of counsel. Mr. Chown then dismissed him. He came up for trial in September and giving evidence on his own behalf said that he bought the cantaloupes from an unknown man on a Sunday evening about dusk in the railway yard. The man was carrying a crate of 48 cantaloupes which he offered to sell for $5. The plaintiff paid the sum demanded and took the crate into his office for the night. In the morning he sent it to his house by transfer waggon. There was no corroboration of these statements, nevertheless the plaintiff was acquitted of the charge of theft. In my opinion the superintendent was by law entitled to dismiss the plaintiff summarily on his refusal to give any information concerning the stolen goods which were found in his possession. Bancroft did not make any protest against the suspicion under which he rested. He made no claim to innocence. He was possibly well advised by his counsel to make no answer of any kind and to reserve his defence until the moment of the trial, but in electing to do so he knew that he thereby forfeited the confidence of his employers and permitted them to think the worst. If he had given Mr. Chown the explanation which he afterwards gave at the trial it would probably have availed him little, even if believed. That a trusted railway employee in a responsible position should be trafficking at dark on a Sunday night in the railway yard with unknown persons, and purchasing goods which very slight inquiry would have shown to have been stolen from the company was in itself a ground for instant dismissal. How much more when the accused, whose duty called upon him to disclose all he knew to his employers, stands mute when questioned and refuses to say anything, or even to claim that he is innocent. Lord Esher, M.R. in Pearce v. Foster, 17 Q.B.D. 536, at p. 539, 55 L.J.Q.B. 306, says: 1920 Judgment. The rule of law is that where a person has entered into the position DENNISTOUN, of servant, if he does anything incompatible with the due or faithful dis- J.A. charge of his duty to his master, the latter has a right to dismiss him. What constitutes good and sufficient cause for the discharge of a servant is a question of law,, and where the facts are undisputed, it is for the Court to say whether the discharge was justified. But where the facts are disputed it is for the jury to say upon all the evidence whether there were sufficient grounds to warrant the discharge. 26 Cyc. 1016. Maclennan, J.A. in McIntyre v. Hockin, 16 O.A.R. 498, at p. 500, says: Notwithstanding some earlier cases to the contrary, I think it is now settled that it is for the Judge to say whether the facts are sufficient in law to warrant a dismissal, and for the jury to say whether the alleged facts are proved to their satisfaction. In the case at bar the conduct of the plaintiff was not in accordance with his duty. There was valid ground in law for his dismissal. There was no dispute as to the facts. The plaintiff's own story put him out of Court. The defendants called no witnesses and it was the duty of the learned trial Judge to have so determined and to have dismissed the action on this branch of the case. It was urged that the district superintendent and the general superintendent had given different reasons for the dismissal of the plaintiff, the one stating that it was for "refusing to answer questions" and the other "for being implicated in a case of theft of fruit from car" and that this was in itself evidence of a wrongful dismissal. It is not necessary that the master dismissing a servant for good cause should state the ground for such dismissal; and provided good ground existed in fact it is immaterial whether or not it was known to the employer at the time of the disnissal. Justification of dismissal can accordingly be shown by proof of facts known subsequently to the dismissal, or on grounds differing from those alleged at the time: 20 Halsbury 101, and cases there referred to. I think the motion for nonsuit on this branch of the case Judgment. should have been allowed. 1920 DENNISTOUN, It now remains to be considered if the learned trial Judge was right in withdrawing the claim for libel from the jury. The alleged libel was contained in what is called the "certificate of service" of the plaintiff. It was compiled from the staff records kept in Winnipeg and showed the positions which the plaintiff had held and the reason for terminating the employment. It contained the entry-"Dismissed for being implicated in a case of theft of fruit from car.' A libel for which civil damages may be recovered must be a "false defamatory statement," for unless the statement be untrue the plaintiff has suffered no injury to his right or reputation, and has no cause of action: 18 Halsbury, 608. Taken as it stands the statement is not necessarily false. The plaintiff was very seriously implicated in a case of theft from a car. He had been found with the stolen goods in his possession, had refused to give any explanation, and had been committed for trial. But the plaintiff seeks to go further and says that the innuendo to be drawn from these words is "that he did participate in stealing fruit from one of the defendant's railway cars in the City of Regina." The defendant having denied the innuendo laid, it was the duty of the trial Judge to determine whether the words were capable of the meaning alleged in the innuendo; it was for the jury to determine whether that meaning was properly attached to them. Australian Newspaper Co. v. Bennett [1894] A.C. 284, 63 L.J.P.C. 105. The trial Judge gave no reasons for withdrawing the case from the jury and assuming he did not do so on the ground that the innuendo laid could not be inferred from the words used, it is necessary to look for other grounds to support his ruling. The defendants by their pleading set up the further defence that the occasion was privileged and that there was no malice on their part. I think the occasion was privileged and that the plaintiff upon whom the onus lay failed to show malice. An occasion is privileged where the person who makes a communication has an interest or a duty to make it to the person to whom he does make it, and the person to whom he does make it has a corresponding interest or duty to receive it. The plaintiff relies upon a letter written to Barry, local secretary of his union, enclosing the certificate of service as publication of the libel. This letter was written by the divisional superintendent to Barry about December 10, 1917, some time after the plaintiff's acquittal at the assizes. Barry as an official of the brotherhood or union had been placed in charge of the plaintiff's appeal to the railway officials against his dismissal. Mien, the general secretary, had also been called upon for assistance. The plaintiff laid all the facts of the case before them and was told there would be a meeting of the committee to consider his appeal at Moose Jaw in December and that he must have his certificate of service available for the meeting. He called twice for it at the superintendent's office and gave him to understand why he wanted it at once. The document had been delayed in Winnipeg and the plaintiff said he would call once more for it. Before he did so the certificate arrived and knowing the purpose for which it was required and the persons before whom it was to be laid the superintendent not having the plaintiff's address in his office, sent it under cover to Barry. It is now charged that this was not only publication but evidence of malice as well. That the occasion was privileged was a question for the Judge and I have no doubt he so considered it. Barry and Mien were the plaintiff's advocates. They were concerned at the time in preparing his case for appeal, all of which the superintendent knew. All parties had a mutual concern and interest in the subject of the dismissal and the reasons for it. Barry and Mien knew all the facts and required this very document to complete their case. The occasion has all the requisites of privilege and the action of the superintendent in sending the document to Barry so that it might be in time. for the meeting was apparently to expedite the plaintiff's appeal and to assist him in putting his case in order. 1920 Judgment. DENNISTOUN, J.A. |