COURT OF APPEAL FOR ONTARIO
WEILER, ABELLA and GOUDGE JJ.A.
B E T W E E N:
ONTARIO TEACHERS' FEDERATION
Alan J. Lenczner, Q.C. and Risa Kirshblum for the appellant
Applicant (Appellant)
- and -
ONTARIO SECONDARY SCHOOL TEACHERS' FEDERATION, EARL MANNERS, MIKE WALSH, PAM CONSTABLE, RHONDA-KIMBERLEY YOUNG, MALCOLM BUCHANAN, PATRIC BOULOS, GEOFF DELEPLANQUE, GREG McGILLIS, FAY MOMBOURQUETTE, and BEV OUGH
Maurice Green and David Wright for the respondents
Respondents (Respondents in Appeal)
A N D B E T W E E N:
THE ONTARIO SECONDARY SCHOOL TEACHERS' FEDERATION, EARL MANNERS, MIKE WALSH, PAM CONSTABLE, RHONDA-KIMBERLEY YOUNG, MALCOLM BUCHANAN, PATRIC BOULOS, GEOFF DELEPLANQUE, GREG McGILLIS, FAY MOMBOURQUETTE, and BEV OUGH
Applicants (Respondents in Appeal)
- and -
ONTARIO TEACHERS' FEDERATION
Respondent (Appellant)
HEARD: February 5, 2002
On appeal from the judgment of Justice Todd L. Archibald dated September 28, 2001, reported at [2001] O.J. No. 3847.
ABELLA J.A.:
- [1] This appeal results from the institutional confusion created by the changes in the 1998 Education Quality Improvement Act, S.O. 1997, c. 31 (Bill 160) to the collective bargaining regime for teachers in Ontario.
BACKGROUND
[2] The Ontario Teachers' Federation (OTF) is a professional association constituted as a non-share capital corporation and governed by the Teaching Profession Act, R.S.O. 1990, c. T. 2 as amended. Every “teacher”, as defined in the Teaching Profession Act, is required to be a member of OTF pursuant to ss. 1 and 4 of the Act.
[3] The OTF is not a collective bargaining agent for its members, and has no authority to negotiate with school boards on their behalf. That role is performed by the four affiliates of OTF: the Ontario Secondary School Teachers' Federation (OSSTF); the Elementary Teachers' Federation of Ontario (ETFO), the l'Association des enseignantes et des enseignants franco-ontariens (AEFO); and the Ontario English Catholic Teachers' Association (OECTA).
[4] The Ontario Secondary School Teachers' Federation (OSSTF) is the designated bargaining agent for all English speaking teachers in public secondary schools pursuant to s. 277.3(2) of Part X.1 of the Education Act, R.S.O. 1990, c. E. 2 which states:
s. 277.3 (2) The following bargaining agents represent the corresponding bargaining units:
For the elementary school teachers' unit at an English-language public district school board, the Elementary Teachers' Federation of Ontario is the bargaining agent.
For each of the secondary school teachers' units at an English-language public district school board, the Ontario Secondary school Teachers' Federation is the bargaining agent. [Emphasis added]
For every teachers' bargaining unit at an English-language separate district school board, The Ontario English Catholic Teachers' Association is the bargaining agent.
For every teachers' bargaining unit at a French-language district school board, l'Association des enseignantes et des enseignantes franco-ontariens is the bargaining agent.
- [5] While the Education Act provides that OSSTF is the bargaining agent for teachers in public secondary schools, the obligation on teachers to actually become members of OSSTF is imposed pursuant to OTF By-law I, the validity of which was confirmed by this court in Tomen v. F.W.T.A.O. (1989), 1989 4213 (ON CA), 70 O.R. (2d) 48 (C.A.). The relevant portions of By-law I provide:
By-law I - Membership
A statutory member, as defined in the Teaching Profession Act, of the Ontario Teachers’ Federation shall be a member of an affiliated body, and the appropriate fee shall be forwarded thereto, except in cases where the membership has been suspended or cancelled by an affiliated body.
(a) Teachers teaching all or a major portion of their assignment in an elementary public school or classes shall be members of ETFO.
(b) Teachers teaching all or a major portion of their assignment in a separate school or classes shall be members of OECTA.
(c) Teachers teaching all or a major portion of their assignment in a public secondary school or classes shall be members of OSSTF. [Emphasis added]
(d) Teachers teaching all or a major portion of their assignment in a French language school or French language classes in a French language school board shall be members of AEFO. A school authority shall be considered a district school board.
[6] Despite the requirement in the Teaching Profession Act that all teachers employed by school boards in Ontario be members of OTF, the affiliates themselves are not specifically designated as “members” of OTF.
[7] Prior to the enactment of Bill 160, OTF had the power to set its own fees and negotiate the collection of those fees directly with school boards through ss. 11 and 12(b) of the Teaching Profession Act. A single amount was negotiated by OTF for each teacher, which included both affiliate and OTF membership fees. OTF would then collect the fees and remit them to the appropriate affiliate.
[8] Bill 160 repealed sections 11 and 12(b) of the Teaching Profession Act. As a result, school boards were no longer required to deduct and remit the "OTF fees" (including the affiliate fees) from teacher's salaries.
[9] Bill 160 designated each of the four OTF affiliates as the bargaining agent for its member teachers. It also repealed the previous collective bargaining regime and placed teachers and school boards under the provisions of the Labour Relations Act.
[10] Pursuant to s. 47 of the Labour Relations Act, the affiliates are now empowered to collect their respective membership fees by negotiating a "dues deduction" provision in their collective agreement with the relevant school board. Bill 160 thereby removed the mechanism by which OTF negotiated and collected membership fees and transferred that authority to the four affiliates. Under the new regime, the fees are still, as they previously were, deducted by the school boards, but the deduction is remitted to a different entity: the affiliate rather than OTF.
[11] This statutory gap for setting and collecting OTF membership fees was, with the unanimous support of its affiliates, rectified by OTF with the 1998 passage of By-law X, which states:
Ontario Teachers Federation By-law X - Fees
The Affiliate shall pay the Federation for each member an annual membership fee as approved by the Board of Governors.
The Federation shall receive the regular membership fee on a full-time equivalent basis.
The fee for occasional teachers shall be paid on a full time equivalent basis.
Each affiliated body shall forward the annual membership fee to OTF in accordance with a schedule as approved by the OTF Executive.
The Federation shall receive from the affiliated body for each voluntary member, a sum set by the Board of Governors.
If an affiliated body is in default by more than 30 days of the approved schedule, all participation and voting privileges of that Affiliate shall be suspended.
[12] This By-law created a fixed membership fee and provided that the fee was to be collected by the affiliates and remitted to OTF on behalf of its members in accordance with a schedule approved by the OTF executive. The executive, which is made up of members of the affiliates, passed a protocol stipulating a step-by-step procedure in the event of a default by the affiliates in remittance obligations.
[13] OSSTF remitted its fees to OTF pursuant to By‑law X for 1998/1999 and 1999/2000.
[14] A dispute arose between OSSTF and OTF over OTF's membership in the Canadian Teachers’ Federation (CTF). CTF is a non-profit corporation with 14 provincial and territorial teacher federations and associations as members. Its mandate is to promote the interests of teachers by acting as their collective voice at the inter-provincial, federal, and international levels. It is funded primarily from the fees it receives from its member organizations. OTF is a member of CTF pursuant to OTF By-law XIII.
[15] OTF forwards a portion of the fees it receives from the affiliates to CTF. OTF's membership fees in CTF are calculated on the basis of OTF’s overall membership, including members of the OSSTF. There are almost 120,000 members of OTF, more than 30,000 of whom are also members of OSSTF.
[16] OSSTF applied twice to CTF for direct membership – and therefore an independent voice – but its application was rejected.
[17] As a result, at its annual assembly in March 2000, the OSSTF membership voted to stop forwarding to OTF the portion of its OTF fee designated for CTF. In October 2000, OSSTF made the first in a series of these reduced payments to OTF, remitting only the fees it owed for OTF services, not fees relating to CTF.
[18] In view of the shortfall, OTF began its step-by-step default procedure against OSSTF. Ultimately, at a meeting on December 6, 2000, the OTF executive voted to suspend all OSSTF's participation and voting privileges in accordance with s. 6 of By-law X, though representatives of OSSTF were permitted to attend OTF meetings and observe.
[19] After the suspension, OSSFT voted not to forward any fees to OTF. Since March 2001, it has paid no fees to OTF. OTF has continued to refuse to permit OSSTF to participate at OTF meetings.
[20] OTF brought an application seeking a declaration that OSSTF had defaulted on its obligations under By-law X and seeking damages in the amount of the outstanding fees. OSSTF brought an application several days later challenging the validity of By-law X. The applications were consolidated and heard together by Archibald J.
[21] Archibald J. granted the declaration sought by OSSTF and dismissed OTF’s application. He held that By-law X was ultra vires and of no legal force and effect. He also held that OSSTF was entitled to participate fully in all of the activities of the OTF executive and Board of Governors pursuant to the Teaching Profession Act.
[22] This is an appeal by OTF from that decision. For the following reasons, it is my respectful view that the portion of By-law X setting out the fee collection mechanism in ss. 1-5 was validly enacted, but that the suspension provision in s. 6 of By-law X was not.
ANALYSIS
[23] The Teaching Profession Act sets out the governing structure of the OTF. Section 5 establishes a 40 member Board of Governors, with 5 executive officers and 5 representatives from each of the affiliates. Section 6 provides for a 13-member executive. The executive includes the President and Secretary/Treasurer of each of the four affiliates and is responsible for "carrying on the business" of OTF in accordance with s. 9 of the Teaching Profession Act, which makes no reference to the composition of, or membership in, the affiliates.
[24] The applicable sections of the Teaching Profession Act are as follows:
Definitions
- In this Act,
"member" means a member of the Federation;
"teacher" means a person who is a member of the Ontario College of Teachers and is employed by a board as a teacher ...
- The objects of the Federation are,
(a) to promote and advance the cause of education;
(b) to raise the status of the teaching profession;
(c) to promote and advance the interests of teachers and to secure conditions that will make possible the best professional service;
(d) to arouse and increase public interest in educational affairs;
(e) to co-operate with other teachers' organizations throughout the world having the same or like objects; and
(f) to represent all members of the pension plan established under the Teachers' Pension Act in the administration of the plan and the management of the pension fund.
(1) Every teacher is a member of the Federation.
(1) There shall be a Board of Governors of the Ontario Teachers' Federation, to be composed of 40 members as follows:
The immediate past president, the president, the first vice-president, the second vice-president and the secretary-treasurer of each of The Ontario Secondary School Teachers' Federation, the Elementary Teachers' Federation of Ontario, the Association des enseignantes et des enseignants franco-ontariens and The Ontario English Catholic Teachers' Association.
Five representatives of each of The Ontario Secondary School Teachers' Federation, the Elementary Teachers' Federation of Ontario, the Association des enseignantes et des enseignants franco-ontariens and The Ontario English Catholic Teachers' Association, to be elected annually at the annual meeting of the federation or association from among its members.
(2) There shall be an executive of The Ontario Teachers' Federation, to be composed of 13 members as follows,
The immediate past president, the president, the first vice-president, the second vice president and the secretary-treasurer of The Ontario Teachers' Federation.
The president and the secretary-treasurer of each of The Ontario Secondary School Teachers' Federation, the Elementary Teachers' Federation of Ontario, the Association des enseignantes et des enseignants franco-ontariens and The Ontario English Catholic Teachers' Association.
The prescribed membership fee shall be deducted by the board of trustees from the salary of each teacher,
(a) where a single deduction is made, once in the month of November, or in the first full month thereafter in which the teacher begins a term of employment; or
(b) where instalment deductions are made,
(i) where a teacher is employed for ten months or more, in not fewer than ten instalments, and
(ii) where a teacher is employed for fewer than ten months in fewer than ten instalments, and shall be forwarded to the treasurer of the Federation. [Repealed S.O. 1997, c. 31, s. 180(3)]
- Subject to the approval of the Lieutenant Governor in Council, the Board of Governors may make regulations,
(b) prescribing the fees to be paid by members of the Federation and the dates by which they are to be forwarded to the treasurer of the Federation; [Repealed, S.O. 1997, c. 31, s.180(4)]
(i) The Fee Collection Mechanism: Sections 1-5 of By-law X
[25] In my view, the fee collection mechanism set out in ss. 1‑5 of By-law X represents a matter of internal management and, as such, was validly enacted pursuant to OTF's corporate powers. This is based on the nature of the obligations imposed by ss. 1-5 of By-law X on OSSTF, this court's decision in Tomen, and the functional and legislatively imposed interdependent relationship between OTF and OSSTF.
[26] Tomen clearly established that the Teaching Profession Act was not the complete statutory code for OTF’s Board of Governors at pp. 51‑2:
... the Teaching Profession Act, R.S.O. 1980 c. 495 ("the TPA"), was not intended to be the exclusive source of statutory authority for the exercise of the functions of the board of governors of O.T.F. and that the power to conduct the affairs of O.T.F. was not intended to be exercised solely by regulation approved by the Lieutenant-Governor in Council pursuant to the section which now appears as s. 12 of the TPA.
It is a clear inference from the provisions of the TPA. that the board of governors was intended to perform and discharge, under that appellation, the functions traditionally entrusted to the board of directors of a corporation. By virtue of Part III of the Corporations Act, the board of governors, as the directors of the O.T.F., has the power to pass By-laws to regulate the matters set forth in what now appears as s. 129 of the Corporations Act. We consider s. 2 of By-law I to have been validly enacted pursuant to s. 129(1)(j) of the statute as a matter of internal management of the O.T.F. with respect to membership in the five affiliates [currently four] to whose representatives the T.P.A. accorded, in provisions evidently drawn with great care, equal representation and an equal voice in the administration of OTF's affairs.
- [27] The court concluded that Part III of the Corporations Act, R.S.O. 1990, c. C. 38, as amended, gave OTF’s Board of Governors the power to pass by-laws regulating the matters listed in s. 129 of that Act as part of its internal management. Section 129 states:
129.--(1) The directors of a corporation may pass by-laws not contrary to this Act or to the letters patent or supplementary letters patent to regulate,
(a) the admission of persons and unincorporated associations as members and as members by virtue of their office and the qualification of and the conditions of membership; (b) the fees and dues of members;
(c) the issue of membership cards and certificates;
(d) the suspension and termination of memberships by the corporation and by the member;
(e) the transfer of memberships;
(f) the qualification of and the remuneration of the directors and the directors by virtue of their office, if any;
(g) the time for and the manner of election of directors;
(h) the appointment, remuneration, functions, duties and removal of agents, officers and employees of the corporation and the security, if any, to be given by them to it;
(i) the time and place and the notice to be given for the holding of meetings of the members and of the board of directors, the quorum at meetings of members, the requirement as to proxies, and the procedure in all things at members' meetings and at meetings of the board of directors;
(j) the conduct in all other particulars of the affairs of the corporation.
(2) A by-law passed under subsection (1) and a repeal, amendment or re-enactment thereof, unless in the meantime confirmed at a general meeting of the members duly called for that purpose, is effective only until the next annual meeting of the members unless confirmed thereat, and, in default of confirmation thereat, ceases to have effect at and from that time, and in that case no new by-law of the same or like substance has any effect until confirmed at a general meeting of the members.
(3) The members may at the general meeting or the annual meeting mentioned in subsection (2) confirm, reject, amend or otherwise deal with any by-law passed by the directors and submitted to the meeting for confirmation, but no act done or right acquired under any such by-law is prejudicially affected by any such rejection, amendment or other dealing.
[28] The recognition in Tomen that the Corporations Act grants OTF’s Board of Governors the power to pass by-laws regulating matters of "internal management", including the broad power under s. 129(1)(j) “to regulate . . . the conduct in all other particulars of the affairs of the corporation”, is determinative of whether OTF's fee-collection mechanism under ss. 1-5 of By-law X reflects a valid exercise of OTF's power.
[29] The minimal obligation imposed on the affiliates by ss. 1-5 of By-law X is a far less dramatic example of the regulation of the internal management of OTF than what was accepted as a legitimate exercise of its corporate power in Tomen, namely, the ability to consign OTF members to one of the affiliates. If OTF has the right to determine the affiliate to which its members will belong, it has no less right to determine the methodology for the collection and remittance of its fees from those members.
[30] Moreover, s. 129(b) of the Corporations Act gives an express power to corporations to pass by-laws to regulate the fees and dues of members. The general by-law making power found in the Corporations Act grants authority to regulate “the conduct . . . of the affairs of the corporation.” It is overly restrictive to limit its scope to individual members.
[31] Other subsections of s. 129(1) address the regulation not only of members, but also of directors, agents, officers and employees. It is therefore an error to limit the expression "affairs of the corporation" to the governance of individual members, particularly given the structure, purpose and history of OTF. The affairs of a corporation can, and in this case do, include regulating aspects of the relationship between that corporation and its affiliates. Such regulation does not involve imposing obligations on a third party, but rather involves governing the corporation, which includes the affiliates, in an essential activity.
[32] In addition, s. 23 of the Corporations Act gives non-share capital corporations broad "incidental powers" to act for the benefit of the corporation and to do "… all such things as are incidental or conducive to the attainment of the above objects and of the objects set out in the letters patent …". The objects of OTF, as set out in the Teaching Profession Act, are to promote the cause of education and raise the status of the teaching profession. The power to collect membership fees from its members through the affiliates was necessary for OTF to function and achieve its objects.
[33] When the legislature removed OTF's statutory power to "collect" fees from teachers' salaries by repealing ss. 11 and 12(b) of the Teaching Professions Act, it did not prevent OTF from exercising its lawful authority under s. 129 of the Corporations Act to pass a by-law creating a mechanism to address the fee-collecting vacuum created by the repeal. The relationship between OTF and OSSTF was not reversed when ss. 11 and 12(b) of the Teaching Profession Act were repealed; it was their relationship with the school boards that changed, by transferring from OTF to the affiliates the authority to negotiate and collect fees.
[34] By-law X was simply a “housekeeping amendment”, fully supported by OSSTF. It was a mechanical device to deal with a practical problem for OTF, namely, how best to collect fees from several thousands of individual members now that its authority to require a mandatory check-off from the school boards was rescinded. Without ss. 1-5 of By-law X, OTF's legislatively assigned governing function would be completely undermined. The new fee collection mechanism did not impose a financial obligation on the affiliates; the financial obligation remained with the teacher members of OTF.
[35] There is no doubt that OTF could also have passed a by-law requiring each member to submit his or her membership fees to OTF individually. However, the fact that it chose a more expeditious mechanism involving the affiliates, does not mean that the By-law is any less valid an exercise of its internal management powers pursuant to s. 129.
[36] Contrary to the view of the trial judge, By-law X does not, with respect, impose “a binding financial obligation upon the OSSTF". By-law X was not imposed. It was a democratically enacted decision of the OTF Board, including representatives of OSSTF, that the affiliates would remit to OTF the OTF membership fees they had received.
[37] The fees are collected by the school boards and not by OSSTF. By-law X merely requires that OSSTF transmit the membership fees that it receives on behalf of OTF. The obligation to actually pay fees is that of the members and not OSSTF. By-law X's purported grasp in compelling the affiliated bodies to collect the membership fees does not, therefore, exceed its authorized reach.
[38] While it is true that OSSTF has a separate legal personality from OTF, it is also true that it is, statutorily, a fully integrated and participating part of OTF, not a third party. OSSTF's rights under s. 129 of the Corporations Act are thereby constrained by the parameters explicitly or implicitly imposed by its status as a statutorily mandated affiliate of OTF. The affiliate relationship, while not a relationship of control or subordination, is nonetheless one that creates a kind of participatory democracy between OTF and its affiliates, that is, OTF is constrained by the wishes of the affiliates and the affiliates, in turn, are, to some extent, limited by what OTF decides. This does not make the affiliates subject to OTF, but it does bind them to decisions it legally makes.
[39] Given the affiliate status of OSSTF, and the methodology democratically selected by the affiliates for the collection and remission of fees, OSSTF's independent ability to make decisions about the amount and disposition of fees is, in my view, correspondingly restricted. This does not represent an unwarranted intrusion into OSSTF's collective bargaining or representative functions, functions which should be scrupulously protected; rather, it represents the reality that some limitations on both OTF and OSSTF flow from their statutory inter-relationship.
[40] The fee collection mechanism set out in By-law X recognizes, rather than undermines, the reality that under the new regime, the deduction of fees is a matter of negotiation between school boards and the affiliates in accordance with the Labour Relations Act. There is no impairment of OSSTF's role as bargaining agent under the Labour Relations Act by virtue simply of the fact that a portion of those dues represents OTF dues.
[41] Sections 1-5 of By-law X, therefore, are a function of OTF's internal management powers and, as such, were validly enacted pursuant to its corporate powers. In view of my conclusion that ss. 1-5 of By-law X represent a valid exercise of OTF's corporate authority, it follows that OSSTF was required to transfer OTF's fees in full and was not entitled to withhold them. It is therefore unnecessary to deal with OTF's argument that OSSTF is estopped from asserting that By-law X is invalid on the grounds that it participated in the passage of the By-law.
[42] A related question is whether OSSTF had the separate right to hold back the portion of the OTF fee designated for the CTF. In my view, it did not.
[43] In Lavigne v. O.P.S.E.U., 1991 68 (SCC), [1991] 2 S.C.R. 211, a college teacher challenged the mandatory dues deduction scheme, arguing that his freedom of association, freedom of expression, and right to equality were infringed because a portion of the dues he paid to the union (of which he was not a member) was donated to causes and organizations he did not support. The Supreme Court of Canada concluded that while such a "mandatory check-off", or Rand formula, violated neither his freedom of expression nor right to equality, it did impair his freedom of association. Significantly, however, the violation was found to be a reasonable limit under s. 1 of the Charter of Rights and Freedoms and the deductions were upheld as being matters properly within the union's jurisdiction in the conduct of its internal affairs.
[44] The principles enunciated in Lavigne regarding "mandatory check-off" are, in my view, instructive. LaForest J. recognized that such a scheme serves two important objectives, at pp. 334-335:
The first is to ensure that unions have both the resources and the mandate necessary to enable them to play a role in shaping the political, economic and social context within which particular collective agreements and labour relations disputes will be negotiated or resolved …
The [second] objective is that of contribution to democracy in the workplace.
[45] While the case before us is clearly not identical to Lavigne, it offers an analogous perspective since it too involves a dispute as to the proper use of a labour organization's funds. By analogy, it is for OTF's Board of Governors, comprised of members of the affiliates, to decide what OTF should contribute to, including CTF. If the collective decision has been validly made, it is not, under the usual rules of union democracy, open to an individual to deny or defy the decision.
[46] Based on the principles set out in Lavigne, as well as the statutory regime previously addressed in these reasons, it is my view that until such time as OTF decides democratically to end its association with CTF, OSSTF has no independent right to withhold that portion of OTF's fees designated for CTF.
(ii) The Power to Suspend: Section 6 of By-law X
[47] Just as OSSTF is required to conduct itself in accordance with its statutorily defined relationship with OTF, OTF is similarly constrained. The fact that there is a specific legislative provision making the affiliates a part of OTF, precludes OTF from exercising its powers under s. 129 of the Corporations Act in a way that negates or impairs the role of an affiliate to exercise its role as a fully participating entity within the OTF. Section 6 of By-law X, by authorizing the suspension of an affiliate, interferes with that affiliate's status as a fully functioning part of OTF. I therefore agree with Archibald J. that the power claimed by OTF through s. 6 of By-law X to suspend the participation and voting privileges of an affiliate is ultra vires.
[48] I also agree with Archibald J.'s conclusion that since the affiliates were not "members" of OTF, they could not be suspended.
[49] Only individual teachers are members of OTF. Both s. 129(1)(d) of the Corporations Act and subsection 12(e) of the Teaching Profession Act provide for a method for the suspension and expulsion of "members". Under the Corporations Act, OTF can pass a By-law to suspend members for non-payment of dues. And under the Teaching Profession Act, it can make a regulation, subject to the approval of the Lieutenant-Governor in Council, providing for the suspension and expulsion of individual members. But neither the Teaching Profession Act nor the Corporations Act provides OTF with the power to suspend non-members.
[50] The explicit grant of a suspension and expulsion power in relation to "members" pursuant to the Corporations Act and the Teaching Profession Act is, in my view, supportive of the interpretive conclusion that the failure to refer to suspensive powers over a non-member means that there is no power to do so. Had the legislature intended to provide OTF with the power to suspend an affiliate and prevent its participation in a statutorily protected role, it would have done so explicitly.
[51] The relationship between OTF and its affiliates is, as previously indicated, unique and statutorily protected. OTF’s internal management powers under s. 129(1)(j) of the Corporations Act can only be exercised consistently with the operative legislative scheme. The Teaching Profession Act provides that OSSTF is entitled to representation on both the Board of Governors and the executive of the OTF. It also accords "equal representation and an equal voice in the administration of OTF's affairs" to affiliates.
[52] The statutory language is mandatory. OSSTF's representatives are therefore not only statutorily entitled to fulfill the responsibilities of their positions, they are statutorily obliged to do so. Since the effect of s. 6 in By-law X is to override a statutory entitlement, it is, in my view, invalid.
CONCLUSIONS
[53] My conclusion that the fee collection mechanism in ss. 1-5 of By-law X is valid means that OSSTF is in default of its obligations under those provisions. At least up to the date of the suspension on December 6, 2000, OSSTF was obliged to remit to OTF all fees, including the portion designated for CTF. In failing to do so, OSSTF was in breach of its obligations and OTF is entitled to payment of those amounts withheld prior to OSSTF's suspension.
[54] The amounts owing after the date of the suspension are, however, problematic. The primary issue before us was the validity of the By-law. Success has been divided. There was no evidence before us about what damages, if any, OTF would be entitled to in light of its improper suspension of OSSTF. In the absence of an evidentiary foundation, an assessment of damages beyond the date of the suspension cannot be made.
[55] The appeal is accordingly allowed in part. The order of Archibald J. dismissing OTF's application is set aside and, in its place, a declaration will issue that:
(a) Sections 1-5 of By-law X are valid;
(b) OSSTF is in default of its obligations under By-law X and is required to remit to OTF membership fees for which it is in default up to the date of its suspension; and
(c) Section 6 of By-law X is invalid.
- [56] Since success was divided, I would not order costs either of the appeal or of the applications before Archibald J.
Sigend:"R.S. Abella J.A."
"I agree Karen Weiler J.A."
"I agree S.T. Goudge J.A."
RELEASED: "KW" JUNE 21, 2002