DIVISIONAL COURT NO.: 107/04
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: CRAIG STEWART, PAUL LORION, WILLIAM HARCOURT
AND THE INDIVIDUALS LISTED ON SCHEDULE "A"
Plaintiffs
- and -
THE TORONTO PROFESSIONAL FIRE FIGHTERS' ASSOCIATION,
LOCAL 3888 AND CITY OF TORONTO
Defendants
BEFORE: Mr. Justice D. Rutherford
COUNSEL: Raj Anand, for the plaintiffs
Robert Fredericks & Kerri Kitchura, for the defendant, City of Toronto
Sean McGee, for the defendant, The Toronto Professional Fire Fighters'
Association, Local 3888
HEARD: March 8, 2004
E N D O R S E M E N T
1On January 19, 2004, Sanderson J. refused to strike out the Statement of Claim herein against it. The City now seeks leave to appeal to the Divisional Court.
2The City argues that an employer cannot at common law be impleaded by an employee seeking a remedy as a result of the employees' union breaching its duty to represent the employee fairly. That may have been a traditional approach at common law and, I can see that one possible outcome of an action such as this may be that no remedial order impacting the employer is made.
3However, the common law is not a frozen or static thing. The evolution of remedies even without statutory intervention or nudging is a dynamic feature of the common law. To deny a plaintiff the possibility of establishing a right to a possible remedy at the pleadings stage without the benefits of the contextual fabric of the evidence would certainly chill if not freeze that dynamic aspect of the common law.
4I think Sanderson J. gave persuasive reasons for refusing to strike the claim against the City. I would have come to a similar conclusion.
5I must decline to grant leave and dismiss this motion. Costs are assessed at $2,000 payable within 30 days by the moving party to the Union and to the plaintiffs as a group, for a total of $4,000.
RUTHERFORD J.
DATE: 20040310