Court File No.: 455/09

Released: 20091028

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Harold St. Croix (Plaintiff) v. Furval Terceira et al (Defendants)

Before: Karakatsanis J.

Counsel: Christopher Wirth, for the defendants, moving parties Christopher McClelland, for the plaintiff, respondent

Heard at Toronto: October 9, 2009

ENDORSEMENT

[1] The moving parties (the defendants) seek leave to appeal the decision of Herman J. dated June 23, 2009 dismissing their motion to stay this action on the grounds that the Court has no jurisdiction over the subject matter of the action.

[2] The plaintiff was both a member and an employee of Local 183. He was apparently dismissed without cause or notice and the settlement between the parties included the continuation of his membership benefits, including benefits coverage, for a period of time. During that period the union terminated his membership benefits. The union threatened to lay charges under the union Constitution if he did not resign his membership. Neither the plaintiff nor the union laid charges. Instead, the plaintiff brought an appeal of the union’s decision to stop the membership benefits. The union took the position there was no decision and that they would be laying charges to expel him from membership. The appeal was denied on the basis that that there had been no decision upon which to take jurisdiction and the plaintiff was directed to file charges.

[3] The plaintiff commenced this proceedings seeking a declaration that the plaintiff was wrongfully expelled from membership; that the plaintiff continues to be a member in good standing; an order for the reinstatement of the plaintiff’s membership rights; and damages for breach of the settlement agreement (relating to his wrongful dismissal claim) and for breach of the membership contract between the plaintiff and the union. It was not disputed that the issue of the termination of membership benefits was properly before the courts as part of the breach of the settlement of the wrongful dismissal claim.

[4] The applicants rely upon Rule 62.02(4) (b). The applicant must show that there is good reason to doubt the correctness of the decision in question and that the issues are of such general importance, beyond the interests of the parties, such that it is desirable that leave be granted.

[5] The moving parties submit that the motions judge failed to consider that as a member of LIUNA and Local 183, the plaintiff was contractually bound by their Constitutions, which required him to resolve his disputes involving his membership rights pursuant to the Union’s internal procedures and remedies. They submitted that as the plaintiff had not laid charges, there was no basis to conclude that the internal procedures would be unfair and that it is inappropriate at the pleading stage to allow members to avoid their contractual obligations by virtue of allegations against the union.

[6] The motions judge had before her the Statement of Claim and an affidavit setting out the union’s position and attaching the documentation, including the correspondence upon which the claim was based. The motion record and the undisputed correspondence between the parties provided an evidentiary basis beyond mere allegations.

[7] The motions judge correctly set out the applicable legal principles of law; she articulated the principle in Berry v Pulley, [202] 2 S.C.R. 493 and applied in Pileggi v C.U.P.W. (2005), 13 C.P.C. (6th) 373, that courts will not entertain challenges regarding a failure to abide by the union’s constitution or by-laws, until internal appeal procedures provided under the constitution have been exhausted, unless those procedures are unreasonable, impracticable or illusory. She found this case to be within the rare exceptions; that there was a breach of natural justice and it was unfair to require the member to lay charges, in effect reversing the burden of proof in circumstances where the union unilaterally took away significant membership benefits but refused to clarify his membership status, follow the internal procedures or take any formal decision he could appeal from.

[8] In any event, leave to appeal should be granted only on questions that are of general importance beyond the interests of the parties. The principles of law governing the relationship between a union and its members are important. However, the motions judge correctly articulated the applicable legal principles. This decision turns on the exercise of discretion and the application of well established principles of law to the particular facts of this case. I am not satisfied that there are issues of such importance that it is desirable that leave be granted.

[9] Leave to appeal is denied.

Karakatsanis J.

Released: October , 2009