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Legal Justice, Social Justice: An Incursion into the Social History of Work-Related Accident Law in Ontario, 1860-86

Published online by Cambridge University Press:  28 October 2011

R. W. Kostal
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Extract

The historiography of work-related accidents in nineteenth-century Ontario is a product of two complementary but as yet unsynthesized lines of inquiry. On the one hand, legal historians have focused on the genesis of judge-made and statutory law respecting the liability of employers for the work-related accidents of their hired labor. Considerable light has been shed on political and ideological as well as formally “legal” factors that shaped judicial and legislative decision making concerning personal injuries at work. However, the legal historiography of the Victorian Ontario workplace pertains mainly to the law and those who made the law, rather than those subject to it. These studies of the dynamics of legal change, important as they are, lack a firm basis in tangible sociohistorical experience.

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Articles
Information
Law and History Review , Volume 6 , Issue 1 , Spring 1988 , pp. 1 - 24
Copyright
Copyright © the American Society for Legal History, Inc. 1988

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References

Notes

1. See Risk, R. C. B., “The Last Golden Age: Property and the Allocation of Losses in Ontario in the Nineteenth Century,” 27 University of Toronto Law Journal 199 (1977Google Scholar); Risk, R. C. B., “‘This Nuisance of Litigation’: The Origins of Workmen's Compensation in Ontario,” in Flaherty, D. H., ed., Essays in the History of Canadian Law, vol. 2 (Toronto, 1983Google Scholar); Tucker, Eric, “The Law of Employer's Liability in Ontario 1861-1900: The Search for a Theory,” 22 Osgoode Hall Law Journal 213 (1984Google Scholar).

2. Eric Tucker notes this limitation, ibid. at 216.

3. The historiography of nineteenth-century Ontario still lacks a satisfactory general account of industrialization. See generally, Easterbrook, W. T. and Aitken, H. G. J., Canadian Economic History (Toronto, 1956Google Scholar); Spelt, Jacob, Urban Development in South Central Ontario (Toronto, 1955Google Scholar). The historiography of Ontario's early industrial working class is currently dominated by two prolific labor historians, Bryan D. Palmer and Gregory S. Kealey. See, for example, Palmer, Bryan D., A Culture in Conflict: Skilled Workers and Industrial Capitalism in Hamilton, Ontario 1860-1914 (Montreal, 1979Google Scholar); Kealey, Gregory S., Toronto Workers Respond to Industrial Capitalism 1869-1892 (Toronto, 1980Google Scholar); Palmer, Bryan D. and Kealey, Gregory S., Dreaming of What Might Be: The Knights of Labor in Ontario (New York, 1982Google Scholar); Palmer, Bryan D., Working Class Experience: The Rise and Reconstitution of Canadian Labour, 1800-1890 (Toronto, 1983Google Scholar). See also Katz, Michael B., The Social Organization of Early Capitalism (Cambridge, Mass., 1982CrossRefGoogle Scholar).

4. See generally, Piva, Michael J., “The Workmen's Compensation Movement in Ontario,” 67 Ontario History 39 (1975Google Scholar); Tucker, Eric, “The Determination of Occupational Health and Safety Standards in Ontario, 1860-1982: From the Market to Politics to…” 29 McGill Law Journal 261 (1983-1984Google Scholar).

5. That historians such as Palmer and Kealey have largely omitted law and legal process from their studies is puzzling in view of the intellectual debt that they jointly acknowledge to English social (and sometimes legal) historian, Edward P. Thompson. Thompson, it is well known, has long been convinced of the interrelationship or “imbrication” of legal and social phenomena in modern English life. See Thompson, E. P., Whigs and Hunters (New York, 1975), at 258–69Google Scholar.

6. The term social justice is adopted to convey a particular historical community's collective attitude toward the fair resolution of the conflicts engendered by the factory accident described in section 3. The term does not allude to any normative, universal, or philosophical conception of justice.

7. What is provided in the third and fourth sections of the essay then, is a case study. The problems intrinsic to this methodology, particularly the problem of “typicality,” have neither been ignored nor fully resolved by the author. As E. P. Thompson has remarked, however, “History is made up of episodes. If we cannot get inside these, we cannot get inside history at all.” See Thompson, E. P., The Poverty of Theory and Other Essays (London, 1978), at 275Google Scholar.

8. The paucity of scholarship on this subject makes this assertion more a matter of reasonable conjecture than well-documented fact. See generally, Craven, Paul, “Law and Railway Accidents,” Canadian Law and History Conference Proceedings, II (1987), at 47–75Google Scholar.

9. The Legislative Assembly of the United Canadas began to gather work-related accident statistics for railways in the 1860s. No general workplace accident statistics were collected until passage of early “workmen's compensation” legislation in 1884. Statistical data on accidents remained extremely unreliable until the introduction of more stringent reporting and data collection procedures in the mid-twentieth century.

10. The earliest known case of an Ontario workman suing his employer for compensation as a result of a work-related injury is Thatcher v. Great Western Railway, unreported. This case, tried at the Brantford assizes in 1854, involved an injured railway mail conductor. A newspaper report indicates that the conductor was awarded damages by a jury, although the legal basis for this verdict remains unclear. See Paul Craven and Tom Traves, “Labour and Management in Candian Railway Operations: The First Decade,” unpublished; cited with permission.

11. One study of English workplace safety in the nineteenth century suggests that the introduction of the industrial-style workplace did in fact engender higher accident rates. See Bartrip, P. W. J. and Burman, S. B., The Wounded Soldiers of Industry: Industrial Compensation Policy 1833-1897 (Oxford, 1983), at 7–14Google Scholar.

12. For a description of changes wrought by the introduction of factory production to a late-nineteenth-century Ontario city, see Gregory S. Kealey, Toronto Workers Respond to Industrial Capitalism, supra note 4. This subject has been treated in the English context by Thompson, E. P. in “Time, Work-discipline and Industrial Capitalism,” 38 Past and Present 56 (1967CrossRefGoogle Scholar). In the American setting, see Gutman, Herbert, “Work, Culture and Society in Industrialising America, 1815-1919,” 78 American Historical Review 531 (1978CrossRefGoogle Scholar).

13. For a discussion of workplace paternalism in nineteenth-century Canada, see Bryan D. Palmer, Working Class Experience, supra note 3, at 7-55.

14. The high frequency and seriousness of injury to railway passengers and laborers was a matter of public and political concern as early as 1855, when the government of the United Canadas made an official inquiry into the matter. In 1857, and again in 1881, legislation was enacted that purported to improve railway safety for passengers and laborers.

15. See generally Paul Craven and Tom Traves, supra note 10, at 56-67. See Craven, supra note 8, at 64-65.

16. The best general introduction to social relief in Ontario in the nineteenth century is Splane, R. B., Social Welfare in Ontario: A Study of Public Welfare Administration (Toronto, 1965Google Scholar). See also Armitage, A., Social Welfare in Canada: Ideals and Realities (Toronto, 1975Google Scholar).

17. Perhaps an increasingly impersonal relationship with their employers left this small group of men (all of the early worker litigants were male) unconstrained by loyalty, deference, or fear of economic retaliation from taking their bosses to court. The added fact that most railwaymen were town or city dwellers living in close proximity to lawyers also may have contributed to the timing of these first compensatory lawsuits.

18. English common law was formally introduced into Upper Canadian (Ontario) law by colonial statute in 1792. For background to this process, see Lederman, W R., “The Extension of Government Institutions and Legal Systems to British North America in the Colonial Period,” in Continuing Canadian Constitutional Dilemmas, ed. Lederman, W R. (Toronto, 1980Google Scholar).

19. For analyses of the development of work-related accident law in England and the United States, see generally, Ingman, T., “The Rise and Fall of the Doctrine of Common Employment,” 1 Juridicial Review 106 (1977-1978Google Scholar); Friedman, L. and Ladinsky, J., “Social Change and the Law of Industrial Accidents” 77 Columbia Law Review 50 1977Google Scholar); Smith, M., “Judges and the Lagging Law of Compensation for Personal Injury in the Nineteenth Century,” 2 Journal of Legal History 258 (1981CrossRefGoogle Scholar); P. Bartrip and J. Burman, supra note 11.

20. For background to these developments see Bartrip and Burman, supra note 11, at 97-125.

21. See supra note 1.

22. The employer's common-law duty to provide machinery in proper condition was settled in Bartonshill Coal Co. v. Reid (1858) 3 Macq. 266. Duties with respect to the hiring of competent servants were described in Wilson v. Merry (1868), L. R. 1 Sc. App. 332.

23. If, for instance, the employee knew that the employer's equipment was unsafe but proceeded with the work, the employee was said by law to have accepted the risk of injury. Similarly, the employer was under no duty to make thorough enquiries as to the fitness of a servant for a particular job. For a more detailed discussion of these points of law, see Roberts, W. and Wallace, G., The Duty and Liability of Employers, 3rd ed. (London, 1885) 179–90Google Scholar.

24. These doctrines are summarized and explained by Eric Tucker, supra note 1, at 216-20.

25. In the period 1840-80, a period in which thousands of wage laborers suffered serious work-related injuries in every year, there are fewer than twenty reported cases of employees successfully obtaining legal compensation for their injuries. This pattern was only marginally affected in favor of laborers by legislative intervention after 1880. See Bartrip and Burman, supra note 11, at 158-189.

26. The ideological influences on English judicial thinking in the Victorian era are discussed in Atiyah, Patrick, The Rise and Fall of Freedom of Contract (Oxford, 1979) 370–90Google Scholar.

27. While the English judiciary subscribed to classical liberal ideology in varying degrees, the judgments of key members of the bench in work-related accident cases reveal a strong affinity with its central tenets. See, for example, Lord Abinger's judgment in Priestley v. Fowler (1837); the highly influential opinion of Chief Judge Lemuel Shaw of Massachusetts in Farwell v. Boston & Worcester R.R. Co. (1842); and, the judgment of Lord Cranworth in Bartonshill Coal Co. v. Reid (1858). All of these judgments reveal a commitment to a highly individualist social philosophy and established legal principles that virtually settled work-related accident law for the remainder of the nineteenth century.

28. Even the few judges who were doubtful of the legal legitimacy or social consequences of work-related accident law seem to have been convinced that it was their obligation as common-law judges to apply settled principles regardless of their effect. See, for example, Evidence of Brett, Lord Justice, Report for the Select Committee of Employer's Liability, British Parliamentary Papers, (1877) vol. 10, at 684Google Scholar.

29. For a discussion of the criticism and controversy surrounding the English common law of work accidents, see Bartrip and Burman, supra note 11, at 126-34.

30. As Patrick Atiyah has commented: “The courts began to take for granted a certain ‘natural’ background of law … and this background was virtually the same as that assumed by the political economist.” See supra note 26, at 389.

31. This is a remarkably low figure given the hundreds of serious work-related accidents that occurred in the province in the same period. For more detailed statistics on litigated claims, see Eric Tucker, supra note 1, at 228.

32. Ibid. at 228.

33. Ibid. at 276.

34. Ibid at 224.

35. “Legal formalism” is understood to be a style of judicial reasoning whereby a judge exercises a self-perceived duty to apply judicial precedents from higher tribunals. For a clarification of the term “formalism” and its conceptual opposite, “instrumentalism,” see Paine, Lynda S., “Instrumentalism vs. Formalism: Dissolving the Dichotomy,” Wisconsin Law Review 997 (1978Google Scholar).

36. R. C. B. Risk has also noted the sympathy of many Ontario judges in the mid-Victorian period for this highly individualistic social philosophy: “At centre was a belief that the law should establish and encourage individual autonomy. Individuals could choose to work or not to work, and the causes of conduct were relatively few. Liability and fault were a product of personal failing which a person could, by taking care, have avoided.” See “This Nuisance of Litigation,” supra note 1, at 421.

37. See, for example, Deverill v. Grand Trunk Railway (1866), 25 U. C. Q. B. 517; Plant v. Grand Trunk Railway (1867) 27 U.C. Q. B. 78.

38. For the development of exceptions to the common law of work-related accidents by American judges, see Friedman and Ladinsky, supra note 19.

39. Statutory reform of work-related accident law in Ontario began with the proclamation of the notoriously misnamed Workmen's Compensation Act of 1886. This statute did not provide for state-funded workmen's compensation, but only modified the common law of workplace accidents. See R. C. B. Risk, “This Nuisance of Litigation,” supra note 1, at 423-24.

40. The village of Cumminsville has now been absorbed as part of the larger Halton County village of Cedar Springs.

41. For background to the economic structure and development of Halton County in the nineteenth century, see Pope, J. H., Illustrated Historical Atlas of the County of Halton (Toronto, 1877Google Scholar); Dean, W., ed., The Economic Atlas of Ontario (Toronto, 1957Google Scholar); Bland, W., “The Location of Manufacturing Concerns in Southern Ontario in the Nineteenth Century,” 8 Ontario Geography 5 (1974Google Scholar).

42. In periods of peak production, some of these factories allegedly employed upward of one hundred wage laborers. See J. H. Pope, ibid.

43. The company was established in Halton County as the Canada Powder Company by Irish immigrant John Byrne in 1851.

44. The narrative that follows has been reconstructed from various contemporary newspaper reports. I have relied heavily on The Hamilton Daily Spectator (H. D. S.); The Hamilton Evening Spectator (H. E. S.); The Brantford Expositor (B. E.); The Toronto Daily Mail (T. D. M.); and The Globe. All of the reports used in the account provided are from the month of October 1884. Only direct quotations and references to states of mind will be accompanied by citation to specific reports. Explanatory notes have been provided where deemed necessary.

45. T. D. M., 18 October 1884.

46. Filling this order required grinding gunpowder into the fine no. 3 grade used in railway blasting operations. This was a particularly hazardous process because no. 3 could only be ground from dry, and hence highly explosive, no. 1 powder. The powder company's own tests revealed that the final product of the grinding process was 70 percent more explosive than green no. 1 gunpowder. The Globe, 10 October 1884.

47. Reports suggest that the men received $1.25 per day regardless of the hours worked or the type of powder being milled. H. D. S., 10 October 1884.

48. While some of this stockpile was spread among four or five of the buildings, the main storage building, also a wooden structure, contained approximately eleven tons of powder by 9 October 1884. See H. D. S., 10 October 1884.

49. T. D. M., 18 October 1884.

50. The dead men ranged in age from twenty-seven to thirty-seven years.

51. One of the deceased, twenty-seven-year-old William Heatherington, belonged to the Oddfellows Order. This membership may have entitled his dependents to some accident benefits. However, Heatherington was behind in his membership dues, presumably disqualifying his family from any relief. H. D. S., 10 October 1884.

52. The appeal was made in the form of an open letter to The Hamilton Daily Spectator. The author of the letter, Dr. A. C. Jones, described the impoverishment of the dependents as a result of the explosion, explaining that they had “no means of support.” H. D. S., 18 October 1884.

53. The relative smallness of the surrounding communities and the large number of surviving dependents left the people of the vicinity unable to cope with the burden by themselves. The added fact that these communities’ main source of wage employment outside of farming had been destroyed by the explosion further complicated the matter of charitable relief.

54. These events included open-air concerts and fireworks displays in the area, and culminated in a benefit concert (the performers donating their time) at the Hamilton Opera House in late October. H. D. S., 28 October 1884.

55. H. D. S., 10 October 1884.

56. Ibid.

57. Ibid.

58. It is not clear precisely why or how the decision to hold an inquest was made. At law, it was within the discretion of the local coroner, Dr. H. Freeman, to convene or not convene a full-blown inquest. It appears that Freeman consulted with the Crown Attorney of Halton for advice on how to proceed. It was the duty of the Crown Attorney to give counsel to coroners on points of law raised by the discharge of their office. See generally, Marshall, T. D., Canadian Law of Inquests (Toronto, 1980Google Scholar); Granger, Christopher, Canadian Coroner Law (Toronto, 1984Google Scholar).

59. H. D. S., 17 October 1884.

60. Although the mandate of this coroner's inquest was to determine the cause of death, coroners in Victorian Ontario had the power to lay criminal charges for culpable homicide against the person or persons responsible for causing death. All matters of fact were determined by the coroner's jury. The Crown Attorney acted as chief counsel to the coroner, giving legal advice, examining witnesses called by the coroner, and preparing any criminal indictments requested by the “judge” of the proceeding, the coroner himself. Although employees had, in the past, been indicted for culpable homicides that occurred in the course of employment particularly in the context of railway work, (see e.g., the indictment of a railway engineer described in Ham v. Grand Trunk Ry. Co. (1861), 11 U. C. C. P. 86), no company owners had ever been so indicted in Ontario. In this instance Edward Corlett, the company foreman, may have been in some jeopardy of having to face criminal charges upon completion of the inquest. See generally, C. Granger, supra note 69, at 35-39.

61. H. D. S., 18 October 1884.

62. Ibid.

63. H. D. S., 21 October 1884.

64. Ibid.

65. Ibid.

66. Ibid. The coroner's jury made five separate findings of fact in their verdict including the technical cause of the explosion (overheated and ill-repaired machinery), and its precise location in the factory. These findings of fact preceded the determination of “blame” for the accident.

67. See Watson's testimony recounted by C. J. Wilson, in Mathews v. Hamilton Powder Co. (1885), 12 O. R. 58 (Q.B.) at 67.

68. H. D. S., 28 October 1884.

69. Ibid.

70. Ibid.

71. Given the known poverty of the Mathews family in the aftermath of the accident (see letter, Dr. A. C. Jones, H. D. S., 18 October 1884), it is a fair assumption that whatever monies were required to commence and maintain litigation against the powder company came from the funds raised by the community. It is also fair to assume that the Mathews lawsuit was a “test case”; if this suit had succeeded, it is likely that the remaining widows would have also brought suit.

72. The account of this trial is drawn solely from H. D. S., 25 September 1885.

73. Supra note 67.

74. Ibid. at 66.

75. Ibid. at 67.

76. Mathews v. Hamilton Powder Company (1887), 14 O. R. 261 (C. A.).

77. See e.g., Hagarty's judgments in Deverill v. Grand Trunk Railway Co. (1866), 25 U. C. Q. B. 517; O'Sullivan v. Victoria Railway Co. (1879), 44 U. C. Q. B. 128; Drew v. The Corporation of East Whitby (1881), 46 U.C. Q. B. 107.

78. Supra note 76 at 263.

79. Ibid. at 263.

80. Ibid. at 264.

81. Ibid. at 264.

82. Ibid. at 265.

83. Theoretically, the Mathews family had two additional levels of appeal to exhaust: the Supreme Court of Canada and the Judicial Committee of the Privy Council in England. Either for legal or financial reasons, or for some combination of both, the case was not heard by these courts.

84. The space of time it took for the members of the community to cause the coroner to reverse his initial decision regarding the necessity of an inquest and to retain legal counsel.

85. For a particularly suggestive discussion of law as a dimension of social perception, see Geertz, Clifford, Local Knowledge (New York: 1984), esp. 167–234Google Scholar.

86. The most vociferous critic of the legal proceedings in the wake of the mill explosion was the local newspaper of the Knights of Labor The Palladium of Labor. According to this journal, the five deaths were “capitalistic murder… caused by the consuming greed of the owners.” But this manner of crime, the editors asserted, “the law cannot or will not punish.” See the Palladium of Labor, 25 October 1884. For background to this paper and its editors, see Hahn, Russell, “Brain-workers and the Knights of Labor: E. E. Sheppard, Phillips Thompson and the Toronto News, 1883–1887,” in Essays in Canadian Working Class History, ed. Kealey, Gregory S. and Warrion, Peter (Toronto, 1970Google Scholar).

87. Genovese, Eugene, “The Hegemonic Function of Law,” in Roll Jordan, Roll: The World the Slaves Made (New York, 1972) 26Google Scholar.

88. See Lears, T. J. Jackson, “The Concept of Cultural Hegemony: Problems and Possibilities,” 90 American Historical Review 566 (1985) 571Google Scholar.

89. See R. C. B. Risk, “This Nuisance of Litigation,” supra note 1.

90. The Palladium of Labor, 17 April 1886.

91. Ibid.