COURT FILE NO.: 733/02

DATE: 20030616

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lang, somers and epstein jj.

B E T W E E N:

JOHN GLENN

Applicant

• and -

ELEMENTARY TEACHERS' FEDERATION OF ONTARIO

Respondent

Joseph Markin, for the Applicant

Howard Goldblatt, for the Respondent

HEARD: June 16, 2003

LANG J.: (Orally)

1It is open to debate whether or not the General Secretary is acting in a judicial or quasi-judicial capacity. The Union is a statutory body in the sense that it is established pursuant to the provisions of the Education Act. The question remains, however, as to the nature of the General Secretary's role in the complaints process.

2Under the Constitution, the General Secretary is restricted to investigating and reporting with recommendations. The decision-making capacity on the disciplinary issue rests with the Executive.

3Given our findings on the facts of this case, it is not necessary for us to decide the issue of the nature of the General Secretary's role. We will assume, without deciding, that the General Secretary's investigation falls within a decision that can be subject to judicial review.

4Mandamus is an extraordinary remedy and is not available if the applicant has "any other adequate remedy": Karavos v. Toronto and Gillies, 1947 326 (ON CA), [1948] 3 D.L.R. 294 (Ont. C.A.). On the facts of this case the complainant has not exhausted his other remedies. Specifically he did not seek a reconsideration from the General Secretary on the grounds that the Small Claims Court proceeding would be inordinately delayed and, hence, that the complaints investigation would be consequently delayed. Counsel have advised that in fact the Small Claims Court proceeding has now been pre-tried and the parties are awaiting a trial date.

5While the applicant makes a bald allegation of prejudice as a result of the delay or alleged stay he provides no particulars whatsoever. Further there is no allegation or evidence of any malfeasance or mala fides on the part of the General Secretary.

6We are also cognizant that a court should be cautious in interfering with the affairs of a trade union. In Rameau v. Findlay [1991] O.J. No. 1292 (Gen. Div.), at p. 6 Chadwick J. said:

At this stage of the proceeding, it is my view that the court should not intervene unless it is clear that their acts are clearly ultra vires or they are involved in some misconduct which would jeopardize the individual members.

7For these reasons we exercise our discretion to refuse the requested relief; the application is dismissed.

8The endorsement will read: "For oral reasons given, the application is dismissed. We are all of the view that costs to the respondent shall be payable by the applicant forthwith fixed at $2,000 inclusive of disbursements and GST."

LANG J.

SOMERS J.

EPSTEIN J.

Date of Reasons for Judgment: June 16, 2003

Date of Release: June 19, 2003

COURT FILE NO.: 733/02

DATE: 20030616

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

lang, somers and epstein jj.