TOM BERGER, LABOUR LAWYER

The recent passing of Tom Berger brought an outpouring of tributes and accolades for his long, unparalleled career as a legal groundbreaker and social justice advocate for Canada’s Indigenous people. As Bob Rae, former NDP premier of Ontario, interim federal Liberal leader and currently Canadian ambassador to the United Nations, put it: “No non-Indigenous person has done more to advance the rights of Indigenous people in Canada and globally. He inspired thousands and enlightened millions.”

Less well-known is that Tom Berger got his first taste of fighting against injustice as a young Vancouver labour lawyer in a case that stemmed directly from one of the city’s most devastating disasters.

On the afternoon of June 17, 1958, two spans of the Second Narrows Bridge being built across Burrard Inlet suddenly collapsed, tumbling workers and twisted steel into the deep ocean waters far below. The tragedy claimed 19 lives, including 14 members of Local 97 of the Ironworkers Union. It remains Vancouver’s worst industrial accident. Looking out from his downtown office window, Tom Berger was among thousands of Vancouverites who gasped in astonishment that day at the sight of the two collapsed spans. Less than a year later, he would be in court, representing some of those same union ironworkers, who had been on the bridge and survived when it went down.

By the spring of 1959, the project was back on track. But on June 23, ironworkers employed on the bridge joined a province-wide strike by Local 97, halting construction once again. The work stoppage left a south section of the bridge overhanging a busy roadway, upheld only by falsework.

Dominion Bridge sought a court injunction ordering the ironworkers to finish the job, on the grounds of safety. The company claimed that an earthquake or some other event could bring the structure down on traffic. The ironworkers retorted: if the section is at risk of collapse, it must be unsafe for us to work on.

The issue facing Berger and his clients was straight-forward: could ironworkers on a legal strike be ordered by the court to complete the overhanging section of the bridge, on the grounds of safety? The presiding judge, Mr. Justice Alexander Malcolm Manson of the BC Supreme Court, sided with the company. He ordered the union to ensure the section’s completion.

The injunction was ignored, and the legal battle was on. The fresh-faced, 26-year old Berger faced off against the stern, crusty Justice Manson, 50 years his senior, who was called to the bar way back in 1908. Appealing the injunction on behalf of Local 97, Berger argued the judge had no authority to order a union to abandon a legal strike. Not only that, “if this bridge is in a dangerous condition then it is just as dangerous if the men are on the bridge, as if they (remain on) strike,” the young union lawyer contended. The judge responded by issuing an added order that the union specifically instruct its members to return to work to finish the job.

When no one showed up on the next work day, Dominion Bridge asked the judge to find leaders of Local 97 and 31 striking ironworkers guilty of criminal contempt of court for defying Justice Manson’s injunction. Union leaders responded with sworn affidavits that they had, in fact, instructed members to return to work. Their instructions had simply not been obeyed. The judge was furious. “We have in Canada what is known as the rule of the law,” he thundered. “We live by that. And the rule of law must be maintained.” Turning towards their lawyer, he concluded: “If you have anything to say, Mr. Berger, now is your chance.”

Berger was more than ready. He pointed out that union leaders had obeyed the injunction by telling members to go back to work. But nothing could force individual ironworkers to resume building the bridge. Then, he revealed his legal ace in the hole. He told the astonished judge that his position was vindicated by none other than the most sacred of all British/Commonwealth legal documents, the Magna Carta, itself. The hallowed charter of rights had been agreed to by King John on the fields of Runnymede in 1215. And there, in Chapter 15, were the words: “No free man shall be distrained to make bridges.”

This referred to former feudal obligations eliminated by the Magna Carta. Berger argued the document was “just as much in force in British Columbia today as it was in England in 1215.” Judge Manson accused the youthful brash barrister of playing to the gallery. He brushed the Magna Carta aside, along with all other positions advanced on behalf of the Ironworkers.

More than 40 years later, writing in his autobiography One Man’s Justice, Tom Berger had not forgotten the case. “I thought I had the answer to the injunction; then I thought I had the answer to the judgment requiring the union to order the men back to work; then I thought I had the answer to the company’s application for sequestration of the union’s assets. But each time the judge veered off in a new direction,” he wrote. “The judge was inventing his own procedure, because none in the books suited his purpose.”

Incensed that no ironworkers had yet gone to work, Judge Manson ordered sheriffs to round up those they could find and bring them to court. He began questioning them on his own. The first time Berger raised an objection, the judge angrily dismissed it. The second time, he snapped at Berger: “Just sit down. I am doing this. You keep your seat.” A third time, Judge Manson threatened Berger with contempt of court for interrupting his questioning of ironworker Eric Guttman. The crowded courtroom erupted in jeers. Despite silencing Berger, the judge got nowhere with Guttman, who corroborated the union’s contention that he had been told to go back to work on the bridge.  “But it is a free country and nobody can force me to go to work to build a bridge if I don’t want to,” he declared.

The judge was not amused. In a startling display of vindictiveness, he found the union’s two business agents and its president guilty of criminal contempt of court, fining them $3,000 each, a huge sum in those days, with the option of a year in jail.  In the meantime, they were arrested and sent to Oakalla. The three men were eventually released, after the labour movement rallied to pay their fines. Local 97, itself, was fined $10,000 and Eric Guttman assessed $100. Ironworkers were not the only ones to fell the sting of Judge Manson’s wrath. George North, editor of The Fisherman union newspaper, was also fined $3,000 and jailed for 30 days. His sin? He had the effrontery to write an editorial suggesting that injunctions don’t catch fish or build bridges. That was contempt of court, too, the judge ruled. Such were the times.

A negotiated settlement ended the ironworkers’ strike shortly afterwards, and on Aug. 25, 1960, the completed Second Narrows Bridge was opened at last to traffic.

The union’s bitter legal tussle also ended happily. In a unanimous judgment, the BC Court of Appeal overturned all of Judge Manson’s contempt of court rulings against the ironworkers, ordering the return of every last cent of the $19,000 in fines he imposed. (However, the contempt of court judgment against George North was upheld. The union editor was forced to serve out every one of his 30 days.) At the same time, the Appeal Court also made a point of telling Berger that Judge Manson had been wrong to criticize his objections and threaten him with contempt of court.

“Justice Manson was no hypocrite,” Berger wrote in his auto-biography. “He hated unions….There were no long-winded rationales for his judgments. He was out to get you, and he did.”

One more development awaited for Berger and the ironworkers to savour. After Judge Manson’s vituperative performance on the bench, the government made it mandatory for superior court judges to retire at the age of 75. In some BC legal circles, it became known as “the Manson law”.

As a postscript, Tom Berger later became prominent in the NDP, with strong backing from organized labour. In 1968, he became provincial leader of the party, narrowly edging Dave Barrett in a bitter leadership contest. Near unanimous support from union delegates was key to Berger’s victory. It took years for the rift in the party to heal, which, long after he had left the NDP, was still referred to as the Berger-Barrett split.

Note: I am indebted to Eric Jamieson and his excellent book, Tragedy at Second Narrows, for much of the narrative details in this account.

Two songs have been written about the Second Narrows tragedy, one by well-known US country singer Jimmy Dean

And a more heartfelt one by the great Stompin’ Tom Connors:

Finally, For more on the incomparable Tom Berger, Justine Hunter’s excellent obit in the Globe and Mail is here:

https://www.theglobeandmail.com/canada/british-columbia/article-bc-legal-giant-thomas-berger-helped-define-indigenous-rights-in/

One thought on “TOM BERGER, LABOUR LAWYER

  1. Thanks Rod – keep on writing!

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