COURT FILE NO.: 426/08

DATE: 20090122

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, BELLAMY AND LITTLE JJ.

B E T W E E N:

UCAL POWELL, BUD CALLIGAN, RICK HARKNESS and CARLOS PIMENTEL

Appellants

(Defendants)

• and -

GEORGE PAL

Respondent

(Plaintiff)

Dan J. Shields, for the Appellants

Howard L. Shankman, for the Respondent

HEARD at Toronto: January 22, 2009

jennings J.: (Orally)

BACKGROUND

1This is an appeal from that part of an order of E. Macdonald J., dated August 8, 2008, in which she granted the respondent’s request for a Representation Order pursuant to Rule 12.07 permitting the claims to be advanced against the defendants on behalf of all members of the United Brotherhood of Carpenters (“the Union”).

2Leave to appeal was granted by Carnwath J. on October 30, 2008 on the question,

Can the Representation order granted by E. Macdonald J. stand in the face of the decisions of the Court of Appeal in Paramount and Meady?

3The motion was heard by the motions judge on May 14, 2008. Whilst her decision was under reserve, on June 12, 2008, the Court of Appeal released its decisions in:

Joseph v. Paramount (2008) 2008 ONCA 469, 90 O.R. (3d) 401, and

Meady v. Greyhound (2008) 2008 ONCA 468, 90 O.R. (3d) 774

4Briefly stated, the effect of those two decisions of which counsel were unaware and accordingly could not bring to the attention of the motions judge, was to put an end to the common law “special circumstances” doctrine which had allowed the possibility of adding parties to a claim after the expiration of a limited period.

FACTS

5The allegations are that the plaintiff, who was 78 and in frail health, found his motor vehicle blocked by seven persons who were said to be part of a picket line at an adjoining building which was the subject of a strike by the Union. He got out of his car to speak to the people blocking his way. He was struck on the heard with a metal pipe and beaten senseless. His attackers left him unconscious on the ground. He was ultimately rescued and taken away by ambulance.

6In 2007, the plaintiff sued the defendants in their personal capacity, alleging that as officers and administrative officials of the Union, they were vicariously liable for the actions of the Union membership serving on the picket line. He claimed damages for the injuries which he had suffered during the assault which I have described.

7Following the expiration of the two-year limitation period imposed by the Limitations Act 2002, S.O. 2002, C.34, the plaintiff brought a motion for a Representation Order.

8It would appear from the record that this part of the motion was dealt with as a request to add parties after the limitation period had expired. In paragraphs 9 through 14 of her Reasons for Decision, the motions judge carefully and thoroughly reviewed the doctrine of special circumstances which gave her the discretion to add parties notwithstanding the limitation period had run. Finding that special circumstances existed in this case she held that the interests of justice required that she grant the request for a Representation Order. As the law stood when the motion was argued before her in May 2008, we would have concurred in her conclusions.

9Before Carnwath J. and before us, the respondent took the position that he was not seeking to add a new party, and indeed had not done so before the motions judge but rather he sought only to expand the capacity in which the existing defendants were being sued.

ISSUE

10The simple issue on this appeal is whether the effect of the granting of a Representation Order in this case is to add a party to the action.

ANALYSIS

11The purpose of the Representation Order under Rule 12.07 in this case is to bind all members of the Union to any finding of liability against the representational defendants. Practically speaking, that is the only way a Union can be sued in Ontario. Each member of the Union becomes bound by any judgment in the action.

12We are of the opinion that the practical effect of the Order under review, and as was recognized by the motions judge, is to add parties following the running of the limitation period. Before the Order, the only parties to the action were the named defendants. After the Order all the members of the Union were brought into the action.

13It does not matter that the proposed representational defendants were already parties to the action in their personal capacity. The plaintiff seeks to add them as parties in a representational capacity.

14The effect of a Representation Order, as has been already suggested, is really to add the Union because all the members become subject to the results of the action.

15In our opinion, as the effect of the Representation Order is to add a new party or parties, then the expiration of the limitation period is fatal to the application. Applying the doctrine of special circumstances is now impermissible (see Paramount and Meady above). If there is any validity to the maxim that hard facts make bad law, it surely must be borne out in this case. If the facts alleged are proven to be true, the inhumanity shown to the plaintiff defies description and there is little justice to be found for him in the result to which we are driven.

CONCLUSION

16The question referred to us by Carnwath J. must be answered in the negative and the appeal must be allowed.

COSTS

17In this case we considered the general principles with respect to the granting of costs contained in Rule 57.01 and particularly those provisions in Rule 57.01(1)(i) which cover “any other matter relevant to the question of costs”. In this matter, we believe there are issues relevant to the question of costs which we should take into account.

18Firstly, this is a novel point and we are told it is the first time that the question put to us has been posed in any Canadian court.

19Secondly, the novel point arose only after the motion had been brought and argued. Counsel were unable to bring the two Ontario Court of Appeal decisions to the attention of the motions judge in the almost two months that elapsed between the date when the Ontario Court of Appeal delivered its decisions in the two cases upon which the outcome of this matter turned and when the motions judge released her decision.

20In our view, the appellant, who has succeeded solely because of these two decisions, must bear the greater responsibility for not having advised the motions judge of them. Had she been made aware of these decisions, she undoubtedly would have called for further submissions which may have obviated the necessity of the appearance before Carnwath J. and the appearance before us today.

21Lastly, we have considered the personal circumstances of this aged and apparently unwell plaintiff.

22Under all of the circumstances, we make no order as to costs of the appeal before us.

23We are all grateful to both of you for your help.

JENNINGS J.

BELLAMY J.

LITTLE J.

Date of Reasons for Judgment: January 22, 2009

Date of Release: February 10, 2009

COURT FILE NO.: 426/08

DATE: 20090122

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, BELLAMY AND LITTLE JJ.

B E T W E E N:

UCAL POWELL, BUD CALLIGAN, RICK HARKNESS and CARLOS PIMENTEL

Appellants

(Defendants)

• and -

GEORGE PAL

Respondent

(Plaintiff)