COURT FILE NO.: 07-CV-332319PD1
DIVISIONAL COURT FILE NO.: 426/08
DATE: 20081030
SUPERIOR COURT OF JUSTICE - ONTARIO (DIVISIONAL COURT)
RE: GEORGE PAL, Plaintiff
- and - UCAL POWELL, BUD CALLIGAN, RICK HARKNESS and CARLOS PIMENTEL, Defendants
BEFORE: Mr. Justice Carnwath
COUNSEL: D. J. Shields, for the Plaintiff H.L. Shankman, for the Defendants
HEARD AT TORONTO: October 27, 2008
ENDORSEMENT
1The defendants seek leave to appeal the judgment of Ellen Macdonald J., released August 8, 2008. There are two issues on which the defendants seek leave:
Leave to appeal the granting of a Representation Order under Rule 12.07 permitting the plaintiff’s claim to be advanced against the defendants and against all members of the United Brotherhood of Carpenters (“the Carpenters’ Union”) in accordance with a draft fresh-as-amended Statement of Claim; and,
The refusal of Ellen Macdonald J. to strike the plaintiff’s Amended Statement of Claim as disclosing no reasonable cause of action.
2The plaintiff sought the Representation Order after the expiry of the two-year limitation period, contrary to the Limitations Act, 2000, S.O. 2002, c.24, Sched. B.
3Relying on Mazzuca v. Silvercreek Pharmacy Ltd., 2001 8620 (ON CA), [2001] O.J. No. 4567 (C.A.), Ellen Macdonald J. found the plaintiff had demonstrated “special circumstances” that warranted the addition of the Union members by way of Representation Order.
4On June 12, 2008, the Ontario Court of Appeal released its decisions in Joseph v. Paramount Canada’s Wonderland (2008), 2008 ONCA 469, 90 O.R. (3d) 401 and Meady v. Greyhound Canada Transportation Corp. (2008), 2008 ONCA 468, 90 O.R. (3d) 774. The effect of these two decisions was to remove and void the common law “special circumstances” doctrine which, hitherto, had allowed the possible addition of parties after the expiration of the limitation period where special circumstances existed.
5The test under Rule 62.02(4)(b) is satisfied where it is shown that the correctness of the order is open to very serious debate. This test is satisfied given the decisions of the Court of Appeal in Paramount and Meady. In addition, the test requires that the matters raised in the proposed appeal must be related to matters of public, other than private, importance or must be relevant to the development of the law and the administration of justice. I find this aspect of the test to be satisfied as well.
6Leave is granted to appeal to a panel of the Divisional Court on the following question:
Can the Representation Order granted by Ellen Macdonald J. stand in the face of the decisions of the Court of Appeal in Paramount and Meady?
7The defendants seek leave to appeal Ellen Macdonald J.’s decision not to strike the plaintiff’s Amended Statement of Claim as disclosing no reasonable cause of action. The defendants had asserted that in their status, solely as officers and administrative officials of the Unions, there was no legal relationship that gave rise to vicarious liability for intentional torts committed by the picketers. Ellen Macdonald J. observed that claims and/or defences that are subject to Rule 21.01 motions may be struck only if it is plain and obvious that they cannot succeed. In the exercise of her discretion, the motions judge was not satisfied, at that stage of the action, it was plain and obvious the plaintiff’s claim against the defendants would fail. She found the claim gave rise to novel issues that required the matter proceed to trial. I can find no palpable or overriding error in the exercise of her discretion and leave to appeal on this issue is denied.
8During the argument of the motion for leave, the plaintiff submitted that he was not seeking to leave to add a party but, rather, a Representation Order was sought which did not make the Union a party to the proceedings. This submission flows from the situation in Ontario where a trade union wants to sue in the capacity of plaintiff or another party wishes to add a trade union as a defendant, but the law of Ontario does not recognize the organization as a legal entity. It has been held that the proper method of pursuing the claim would be by way of the representative action. The effect of the Representation Order is to permit a union to sue and be sued, together with all the rights and obligations accruing to any party to litigation. It adds nothing to the matter I have to decide to submit that the Union is not a “party” for the purposes of Rule 12.07. I reject this submission of the plaintiff, which does not appear to have been argued before Ellen Macdonald J.
9Success on the leave motion is divided and there shall be no order as to costs. Costs of the appearance before Ellen Macdonald J. are reserved to the panel disposing of the appeal.
10Mr. Pal’s health is frail. The appeal should be expedited.
CARNWATH J.
DATE: 20081030