Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773
[Indexed as: Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773]
Ontario Reports Court of Appeal for Ontario Sharpe, Lauwers and Hourigan JJ.A. April 20, 2017
138 O.R. (3d) 129 | 2017 ONCA 321
Case Summary
Civil procedure — Parties — Trade unions — Plaintiff suing trade union local and local directors for damages for wrongful dismissal — Defendants pleading that s. 3(2) of Rights of Labour Act precluded naming union as party — Defendants waiting until limitation period had expired before moving unsuccessfully to dismiss action on ground that local was not suable entity — Plaintiff moving successfully for representation order allowing individual defendants to defend proceedings on behalf of other members — Action not nullity because union was named as party — Request for representation order constituting request to correct name of party inappropriately named within meaning of rule 5.04(2) of Rules — Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3(2) — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 5.04(2).
The plaintiff brought an action for damages for wrongful dismissal against a union local and local directors. In its statement of defence, the local pleaded that s. 3(2) of the Rights of Labour Act precludes naming it as a party. The action proceeded through the discovery, mandatory mediation and pre-trial conference phases, and the action was set down for trial. The defendants participated in those steps without reiterating their Rights of Labour Act objection. After the expiry of the two-year limitation period, the defendants moved for an order dismissing the action on the ground that the local was not a suable entity. The motion was dismissed. The plaintiff then moved successfully for an order amending her statement of claim to add the individual defendants as representatives of the members of the local. The defendants appealed.
Held, the appeal should be dismissed.
Per Sharpe J.A. (Lauwers J.A. concurring): The motion judge correctly took the local's conduct of the action into account when deciding whether to grant the amendment and to make a representation order. The local's conduct was a carefully designed tactical ploy to avoid having the plaintiff's claim adjudicated on the merits. There was no reason to reward that conduct.
An action is not a nullity because a union is named as a party. Courts are directed by rule 2.01(1)(a) of the Rules of Civil Procedure to "grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute". Treating procedural flaws or defects as fatal nullities, incapable of amendment, is inconsistent with that approach. The request for a representation order in this case could properly be characterized as a request to "correct the name of a party incorrectly named" within the meaning of rule 5.04(2). The plaintiff intended from the outset to name her employer as a defendant. The local and its members knew well before the expiry of the limitation period that the plaintiff had brought an action claiming damages for wrongful dismissal against the entity that had been her employer. Both the local and the same individual parties named as representatives of the members participated in the action for over two years. The action was now ready for trial. No further procedural steps would be required as a result of the representation order, and the defendants would suffer no prejudice as a result of the representation order.
Per Hourigan J.A. (dissenting): The effect of s. 3(2) of the Rights of Labour Act is that the only way to commence a civil proceeding against an Ontario union is to obtain a representation order. An action brought against a union without the benefit of a representation order is a nullity.
Cases Considered
McGhie v. Canadian Air Line Flight Attendants' Assn., 58 O.R. (2d) 333; International Alliance of Theatrical Stage Employees, Local 58 v. Canadian Broadcasting Corp., [1972] 1 O.R. 161 — considered
Pal v. Powell, 303 D.L.R. (4th) 601 — distinguished
Other Cases Referred To
Active Canada Inc. v. Formosa, [2002] O.J. No. 2551, [2002] O.T.C. 436; Ball v. Donais, 13 O.R. (3d) 322; Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493; Bridgeland Riverside Community Assn. v. Calgary (City), 1982 ABCA 138, 135 D.L.R. (3d) 724; Burley v. Ontario Public Service Employees Union, [2004] O.J. No. 4431; Chapman v. 3M Canada Inc., 30 C.C.E.L. (2d) 102; Dover Corp. (Canada) Ltd. v. CAW-Canada, Local 27, [1996] O.J. No. 2319, 7 O.T.C. 205; Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132; Guilbeault v. Cornellier, [2002] O.J. No. 4415; Kiewning v. Communications, Energy and Paperworkers Union of Canada, Local 324, [2011] O.J. No. 599, 2011 ONSC 712; Lloyd v. Clark, 2008 ONCA 343, [2008] O.J. No. 1682; Lukings v. I.M.A.W., Region No. 8, [1989] O.J. No. 676, 33 O.A.C. 352; Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652; Mattick v. Ontario (Minister of Health), 52 O.R. (3d) 221; Miguna v. Ontario (Attorney General), 262 D.L.R. (4th) 222; Nipissing Hotel Ltd. v. Hotel & Restaurant Employees & Bartenders International Union, [1963] 2 O.R. 169; Professional Institute of the Public Service of Canada v. Canada (Attorney General), 62 O.R. (3d) 682; Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236; Toronto (City) v. Longbranch Child Care, [2011] O.J. No. 738, 2011 ONSC 548; Wilkes v. Teamsters Local Union No. 230, [1985] O.J. No. 77, 50 C.P.C. 151
Statutes Referred To
Limitations Act, 2002, S.O. 2002, c. 24, Sch. B
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7(1)
Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3(2)
Rules and Regulations Referred To
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.04(1), 2.01(1)(a), 5.04(1), (2), 12.07, 12.08, 21, 21.01(1)(b), (3)
APPEAL
From the order of Hebner J. of the Superior Court of Justice dated August 18, 2016 allowing a motion to amend a statement of claim and to make a representation order.
Counsel: Dan Shields and Brandin O'Connor, for appellant. Robert D. Reynolds, for respondent.
REASONS FOR JUDGMENT
SHARPE J.A. (LAUWERS J.A. concurring):
[1] The issue on this appeal is whether a statement of claim improperly naming a trade union as a defendant, contrary to the Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3(2), may be amended after the expiry of the governing limitation period by obtaining a representation order to make individual co-defendants, already named, representatives of the members of the trade union local.
Background
[2] Pamela Lawrence, the respondent in this appeal, was terminated from her employment with the appellant, the International Brotherhood of Electrical Workers, Local 773 ("Local 773"). She brought this action for damages for wrongful dismissal, naming Local 773 as defendant. She subsequently obtained a consent order adding the individual appellants, all directors of Local 773, as defendants, and amended the statement of claim to plead that the individual respondents were jointly and severally liable for her claim as against Local 773.
[3] In its statement of defence, Local 773 pleaded that as a trade union, it could not be named as a party. It relied on the Rights of Labour Act, s. 3(2), which provides that:
3(2) A trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of this Act or of the Labour Relations Act.
Local 773 reiterated that position in its amended statement of defence, filed after the joinder of the individual defendants.
[4] No doubt, at that stage the respondent should have taken the required steps to amend the proceedings by way of a representation order under rule 12.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The question this court must now answer is whether, in the circumstances of this case, the respondent's failure to do so prior to the expiration of the limitation period is fatal to her claim as against Local 773.
[5] The action proceeded through the normal discovery, mandatory mediation and pre-trial conference phases. Local 773 and the individual appellants were all represented by the same counsel. A representative of Local 773 was produced and examined for discovery. The action was set down for trial. The appellants participated in all of these steps without reiterating the objection made in their statement of defence that Local 773 was not a suable entity.
[6] After the expiry of the two-year limitation period, the appellants moved under Rule 21 for an order dismissing the action on the ground that Local 773 was not a suable entity. They argued that the only way a trade union could be sued was by way of a representation order pursuant to rule 12.07, under which the court may authorize one or more individuals to defend a proceeding as representatives of the members of the trade union. The appellants also argued that the individual defendants were not personally answerable for the respondent's claim.
[7] The appellants' motion to dismiss the action was dismissed: 2015 ONSC 5817. The motion judge ruled that the respondents had failed to bring their rule 21.01(1)(b) motion to strike the statement of claim on the ground that it discloses no reasonable cause of action in a timely manner. They were not precluded by the passage of time from seeking to have the action stayed or dismissed pursuant to rule 21.01(3) on the ground that the defendant does not have the legal capacity to be sued. However, he refused to grant that request as he concluded that the issue of whether the defendant has the legal capacity to be sued was unsettled in the jurisprudence and that the matter should proceed to trial.
[8] On that motion, the respondent did not bring a cross-motion asking for a representation order but she advanced that request in her factum. The motion judge refused to make a representation order in the context of the appellants' motion and suggested that the prospect of success on a motion seeking that relief was doubtful given the limitations issue. The appellants' motion to the Divisional Court for leave to appeal the dismissal of the Rule 21 motion was dismissed: 2016 ONSC 497.
[9] The respondent then brought a successful motion pursuant to rule 12.07 for the order that is the subject of this appeal, granting her leave to amend her statement of claim to add the individual appellants as representatives of all the members of Local 773. The motion judge ruled that the order the respondent sought was properly characterized as a motion to correct an error in the title of proceedings under rule 5.04(2), which provides that:
5.04(2) At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[10] The motion judge rejected the argument that the result of a representation order would be to add all of the individual members of Local 773 as parties to the action. She found that "the union is, by definition, the sum of its members" (para. 16) and, in this case, the union was already named as a defendant. The motion judge also took into account what she described as the appellant union's "tactical" conduct, having participated in the action until the limitation period had expired and only then moving to dismiss the action in "an attempt to avoid a determination of the plaintiff's claim on its merits" (para. 21).
[11] The appellants appealed the motion judge's ruling to this court. The respondent moved to quash this appeal on the ground that the order is interlocutory and therefore not within the jurisdiction of this court. The panel scheduled to hear the motion to quash on January 20, 2017 adjourned that motion to this panel on the ground that the issue of whether the order is final or interlocutory was closely related to the merits of the appeal.
Issues
[12] The central issue before us is whether the motion judge erred by making a representation order authorizing the individual defendants to defend the proceeding as representatives of all the members of Local 773 after the expiry of the limitation period.
Analysis
[13] With respect to the motion to quash, given the earlier panel's decision, the parties proceeded on the basis that they were to address the merits of the appeal in any event. I add that it appears to me that as the appellants were faced with an order that removed a substantive defence, they were entitled to treat it as a final order for the purposes of appeal: Ball v. Donais, 13 O.R. (3d) 322.
[14] The appellants' argument that the motion judge erred in making a representation order rests upon two propositions. First, they say that the claim naming Local 773 was, in law, a "nullity" or, in other words, that it has no legal effect. They argue that, as Local 773 was named as a party contrary to the Rights of Labour Act, there was nothing to amend when the representation order was made. The second and related proposition is that the effect of the representation order was to add all the members of Local 773 as defendants to the action. That was improper, they submit, as the limitation period had expired.
[15] It is well established that the Rights of Labour Act precludes a trade union from being named as a party and that an action brought in violation of the Act will be struck or dismissed: Nipissing Hotel Ltd. v. Hotel & Restaurant Employees & Bartenders International Union, [1963] 2 O.R. 169; Dover Corp. (Canada) Ltd. v. CAW-Canada, Local 27, [1996] O.J. No. 2319, 7 O.T.C. 205; Active Canada Inc. v. Formosa, [2002] O.J. No. 2551, [2002] O.T.C. 436; Burley v. O.P.S.E.U., [2004] O.J. No. 4431.
[16] The proper way to sue a trade union is to obtain a representation order pursuant to rule 12.07, authorizing one or more members of the union to defend a proceeding on behalf of all the other members. Rule 12.08 facilitates a similar procedure by providing that a representative order may be made for members of an unincorporated association or trade union to bring a proceeding on behalf of all the members where a class action would be unduly expensive or inconvenient.
[17] The appellants rely on two trial level decisions where an amendment to a claim by way of obtaining a representation order was refused on the ground that the action naming a trade union contrary to the Rights of Labour Act was a "nullity". In McGhie v. Canadian Air Line Flight Attendants' Assn., 58 O.R. (2d) 333, union members brought an application challenging the merger of their union with another union. Both unions were named as respondents. Gray J. held that the Rights of Labour Act applied to applications as well as actions. He refused a request for an amendment adding certain individuals as representatives of all members of the unions except the applicants on the ground that "this application is a nullity so that there is nothing before me which can be amended" (para. 37). In International Alliance of Theatrical Stage Employees, Local 58 v. Canadian Broadcasting Corp., [1972] 1 O.R. 161, a trade union, named as plaintiff, sought an interlocutory injunction. The defendant objected that the trade union was not an entity capable of commencing an action and the plaintiff responded with a request for an amendment by way of a representation order. Osler J. dealt with and dismissed the motion on the merits but also stated that, as the plaintiff was not an entity capable of suit, the writ commencing the action was a "nullity" and there was nothing before him that could be amended.
[18] Neither decision is binding on this court and, in my view, the label "nullity" is inapt in the circumstances of this case for three reasons.
[19] First, Local 773 did not treat the claim against it as a nullity. The union retained counsel, filed a statement of defence, and fully participated in the discovery process, a mandatory mediation and a pre-trial conference. The union did plead that it could not be made a party to the action and asked that the claim be dismissed on that account, but the statement of defence says nothing about "nullity" and goes on to plead substantive defences. I find it difficult to reconcile Local 773's normal litigation activity on this matter over the course of more than two years with its argument that the action against it was so seriously flawed as to constitute a nullity.
[20] In my view, the motion judge correctly took Local 773's conduct of the action into account when deciding whether to grant the amendment and to make a representation order. I agree with the motion judge that Local 773's conduct was a carefully designed tactical ploy to avoid having the respondent's claim adjudicated on the merits. I see no reason to reward that conduct.
[21] Second, the concept of "nullity" expressed in the two trial decisions to which I have referred is difficult to reconcile with modern principles of civil procedure. There may well be proceedings that are so irregular as to qualify as nullities but the Rules of Civil Procedure suggest that those proceedings should be confined to a very narrow range. The Rules aim, in the words of rule 1.04(1), to "secure the just, most expeditious and least expensive determination of every civil proceeding on its merits". The courts are directed by rule 2.01(1)(a) to "grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute". Treating procedural flaws or defects as fatal nullities, incapable of amendment, is inconsistent with that approach. As Kerans J.A. put it in Bridgeland Riverside Community Assn. v. Calgary (City), 1982 ABCA 138, [1982] A.J. No. 692, 135 D.L.R. (3d) 724 (C.A.), at p. 730 D.L.R.:
. . . no concept is more sterile than that which says that a proceeding is a nullity for failure of compliance with a procedural rule and without regard to the effect of the failure.
. . . no defect should vitiate a proceeding unless, as a result of it, some real possibility of prejudice to the attacking party is shown, or unless the procedure was so dramatically devoid of the appearance of fairness that the administration of justice is brought into disrepute.
[22] Third, there is the question of how we should interpret and apply the Rights of Labour Act in the contemporary context of the labour relations regime. The respondent could not obtain a judgment against Local 773 in the face of the Act, but does that mean that we should treat an action naming Local 773 as a defendant as something that simply does not exist in law? Can it be that the Rights of Labour Act, s. 3(2), designed in the 1940s to protect unions against employers in the early days of trade unionism, should be rigidly interpreted in the modern era to protect a trade union against a claim for wrongful dismissal by one of its own employees?
[23] The judgment of Goudge J.A. in P.I.P.S.C. v. Canada (Attorney General), 62 O.R. (3d) 682 puts the Rights of Labour Act in its proper historical context. The Act was passed in 1944, a time when trade unions were first emerging as important institutions, and the Act "offered some protection to trade unions and the fledgling system of labour relations of which they were a part" (para. 17). In the words of the appellants' own factum, the Act was designed to protect unions from "the unforgiving common law, which viewed trade unionism as an unlawful combination in restraint of trade". Since that time, trade unions and collective bargaining have undergone an "extraordinary evolution" and for unions to "be able to properly fulfill the functions now expected of them, courts must treat them as juridical entities" (P.I.P.S.C., at para. 27).
[24] In Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493, the Supreme Court of Canada recognized unions as "entities which possess a legal personality" and which are endowed, subject to "express legislative provisions to the contrary", with "legal status to sue and be sued in their own name" (paras. 3 and 46). The s. 3(2) remains on the books and it is an "express legislative provision" providing that an Ontario trade union may not be named as a party in an Ontario proceeding, although in P.I.P.S.C. the application of s. 3(2) was narrowly interpreted to permit unions in Ontario that derive their status from non-Ontario legislation to be named as parties. In the words of Goudge J.A., s. 3(2) is "something of an archaic legislative provision" (P.I.P.S.C., at para. 15). While that does not mean the Act can or should be ignored, it is a factor to be taken into account when the court is asked to use another archaic concept, that of "nullity", to characterize the effect of naming a trade union as a party. Irregularity or misnomer, certainly; but nullity, no.
[25] The appellants place particular reliance on Pal v. Powell, [2009] O.J. No. 658, 303 D.L.R. (4th) 601. In that case, the plaintiff sued several union members for personal injuries allegedly sustained during an encounter with a picket line of striking workers. After the two-year limitation period had expired, the plaintiff sought a representation order pursuant to rule 12.07 to permit the claim to be advanced against the individual defendants on behalf of all members of the union. The Divisional Court allowed an appeal from the representation order granted by the motion judge, holding that the effect of the order was "really to add the Union because all the members become subject to the results of the action" and that new parties could not be added after the limitation period had expired (para. 14).
[26] In my view, Pal is distinguishable on the ground that, in that case, the union was not initially named as a defendant. The action proceeded against individual union members and it was only after the limitation period expired that an attempt was made to add the union by way of a representation order. In the present case, however, the union was named as a party from the outset. It was improperly named, no doubt, but named nonetheless.
[27] I agree with the motion judge that, as an unincorporated association, a union is "the sum of its members". The members of Local 773 would have known that the respondent intended to name the legal entity that they comprised as members. Local 773 possesses a legal personality. It cannot be sued in its own name but it can be sued by way of a representation order. I agree with the motion judge that the request for a representation order in this case could properly be characterized as a request to "correct the name of a party incorrectly named" within the meaning of rule 5.04(2). While the form of the order states that the amendment is to "add the individual Defendants . . . as representatives of all members of the Defendant . . . Local 773", the individual defendants were already named and all other members of the union were on notice that the respondent intended to sue the entity they collectively comprise. In my view, this brings the case squarely within the principle articulated by this court in Lloyd v. Clark, [2008] O.J. No. 1682, 2008 ONCA 343, at para. 4:
The case law amply supports the proposition that where there is a coincidence between the plaintiff's intention to name a party and the intended party's knowledge that it was the intended defendant, an amendment may be made despite the passage of the limitation period to correct the misdescription or misnomer.
See, also, Stechyshyn v. Domljanovic, 2015 ONCA 889, 129 O.R. (3d) 236, at para. 20:
The law treats the naming of the correctly named defendant as a substitution for the incorrectly named defendant and not the addition of a new party or the initiation of the action against the correctly named defendant.
[28] Here, the respondent intended from the outset to name her employer as a defendant. Local 773 and its members knew well before the expiry of the limitation period that the respondent had brought an action claiming damages for wrongful dismissal against the entity that had been her employer. Both Local 773 and the same individual parties named as representatives of the members participated in the action for over two years. The action is now ready for trial. No further procedural steps would be required as a result of the representation order and the appellants would suffer no prejudice as a consequence of the representation order.
[29] I have now had the benefit of reading the dissenting reasons of my colleague Hourigan J.A. and offer the following comments on some of the authorities he cites.
[30] In addition to the cases cited by Local 773 and discussed above, my colleague cites Chapman v. 3M Canada Inc., [1995] O.J. No. 4564, 24 C.C.L.T. (2d) 304 (Gen. Div.), affd, [1997] O.J. No. 928, 30 C.C.E.L. (2d) 102, and Lukings v. I.M.A.W., Region No. 8, [1989] O.J. No. 676, 33 O.A.C. 352 (Div. Ct.) for the proposition that a failure to obtain a representation order necessarily renders any claim against a union a nullity. However, neither case uses the term "nullity". Chapman involved a unionized employee attempting to avoid the exclusive statutory arbitration regime governing the claim under which the proceeding in question ought to have been brought. Here we have a claim that may be properly brought in the Superior Court. In Lukings, union employees sued for wrongful dismissal naming as defendants individual members as trustees of the employer union. The Divisional Court dismissed the action and cited Wilkes v. Teamsters Local Union No. 230, [1985] O.J. No. 77, 50 C.P.C. 151 (C.A.), where this court expressly declined to pronounce on the application of the Rights of Labour Act to the circumstances of that case. In Wilkes, this court held that the issue should be determined after a trial on the evidence and upon "considering the scope of s. 3(2) of the Rights of Labour Act especially in relation to matters other than those pertaining to union-employer relations" (p. 153 C.P.C.).
[31] Hourigan J.A. also cites cases involving the notice requirement found in the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27. I note that this court has expressly declined to adopt the strict approach advocated by my colleague to the interpretation of that requirement. In both Mattick Estate v. Ontario (Minister of Health), 52 O.R. (3d) 221, [2001] O.J. No. 21 (C.A.), at para. 14, and Miguna v. Ontario (Attorney General), [2005] O.J. No. 5346, 262 D.L.R. (4th) 222 (C.A.), this court took a purposive approach to the notice requirement and allowed the claims to proceed despite arguably inadequate notice, on the basis that there was no prejudice to the Crown. In Toronto (City) v. Longbranch Child Care, [2011] O.J. No. 738, 2011 ONSC 548 (S.C.J.), the claim was struck by the Superior Court of Justice as a nullity for failure to give notice to the Crown. However, in that case, before filing a statement of defence, the Crown moved to strike the claim under Rule 21, conduct consistent with the position that the action was a nullity.
[32] My colleague also cites case law on the need to avoid uncertainty with respect to the limitation of actions. On that point, I note that in Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, the principle of certainty with respect to discoverability under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B was invoked by this court in precisely the context of preventing a party from engaging in tactical litigation strategies like that of Local 773 designed to undermine another party's substantive rights.
Disposition
[33] I would dismiss the motion to quash and the appeal with costs to the respondent fixed in the amount agreed to by the parties, $12,000 inclusive of disbursements and taxes.
DISSENTING REASONS
HOURIGAN J.A. (dissenting):
[34] I have had the opportunity to consider the reasons of my colleagues. I am unable to agree with their analysis or their disposition of the appeal.
[35] Section 3(2) of the Rights of Labour Act, R.S.O. 1990, c. R.33 (the "Act") provides:
3(2) A trade union shall not be made a party to any action in any court unless it may be so made a party irrespective of this Act or of the Labour Relations Act.
[36] There are certain indisputable legal principles relevant to this appeal that bear repeating. First among them is that with the enactment of s. 3(2) of the Act in 1944, the only way to commence a civil proceeding against an Ontario union is to obtain a representation order. An action brought against a union without the benefit of a representation order is a "nullity": McGhie and Canadian Air Line Flight Attendants' Assn. (Re), 58 O.R. (2d) 333, [1986] O.J. No. 1379 (H.C.J.), at pp. 340-42 O.R. Such an action will be struck or dismissed: Nipissing Hotel Ltd. v. Hotel & Restaurant Employees & Bartenders International Union, [1963] 2 O.R. 169, [1963] O.J. No. 705 (H.C.J.), at pp. 170-76 O.R.; Lukings v. I.M.A.W, Region No. 8, [1989] O.J. No. 676, 33 O.A.C. 352 (Div. Ct.), at paras. 4-18; and Chapman v. 3M Canada Inc., [1995] O.J. No. 4564, 24 C.C.L.T. (2d) 304 (Gen. Div.), at paras. 57-60, affd, [1997] O.J. No. 928, 30 C.C.E.L. (2d) 102 (C.A.).
[37] Second, in the seminal case of Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493, the Supreme Court of Canada determined that trade unions have the capacity to sue or to be sued. See, also, Fullowka v. Pinkerton's of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132, at para. 118. However, this capacity only exists "absent express legislative provisions to the contrary": Berry, at para. 46.
[38] Third, s. 3(2) of the Act is an express legislative provision to the contrary. Accordingly, Berry did not change the law with respect to suing Ontario unions, and a representation order under rule 12.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 is still required: Guilbeault v. Cornellier, [2002] O.J. No. 4415 (S.C.J.), at para. 3; Active Canada Inc. v. Formosa, [2002] O.J. No. 2551, [2002] O.T.C. 436 (S.C.J.), at para. 49; and Burley v. Ontario Public Service Employees Union, [2004] O.J. No. 4431, [2004] O.T.C. 936 (S.C.J.), at para. 51. In Pal v. Powell, [2009] O.J. No. 658, 303 D.L.R. (4th) 601 (Div. Ct.), at para. 11, the Divisional Court stated:
The 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.
[39] In Professional Institute of the Public Service of Canada v. Canada (Attorney General), 62 O.R. (3d) 682 ("P.I.P.S.C."), at para. 45, Goudge J.A. expressed the view in obiter that there is a need for legislative reform in this area. However, he did not challenge the notion that s. 3(2) does not permit a suit against an Ontario trade union without a representation order.
[40] Thus, the law in Ontario has been clear for over 70 years that without a representation order a union cannot be sued. In this case, the respondent did not obtain such an order before the limitation period expired. For that reason, by operation of s. 3(2) of the Act, no suit could be brought against the International Brotherhood of Electrical Workers, Local 773 ("Local 773") within the limitation period. The motion judge was obliged to strike the statement of claim as against Local 773.
[41] I am not persuaded by the arguments proffered by the majority that there is any principled basis to conclude that this case should not be subject to the well-established rule prohibiting suits against unions absent a representation order. I will now consider each of the arguments supporting the majority's decision.
[42] The majority view the concept of nullity as being difficult to reconcile with modern principles of civil procedure. However, the concept of an action being a nullity if it is brought in violation of a statutory requirement is not at all foreign to contemporary Ontario law. To take one example, s. 7(1) of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 prohibits a claim from being commenced against the Crown unless the claimant has given notice to the Crown at least 60 days before commencing the claim. This court has held that "failure to comply with this section renders the action a nullity": Mattick Estate v. Ontario (Minister of Health), 52 O.R. (3d) 221, [2001] O.J. No. 21 (C.A.), at para. 10 (emphasis added). See, also, Miguna v. Ontario (Attorney General), [2005] O.J. No. 5346, 262 D.L.R. (4th) 222 (C.A.), at paras. 7-8; and Toronto (City) v. Longbranch Child Care, [2011] O.J. No. 738, 2011 ONSC 548 (S.C.J.), at para. 38. Although courts have been flexible in defining what a claimant against the Crown must do to give adequate notice under s. 7(1), where notice is inadequate courts continue to treat the concept of a claim against the Crown being a nullity as a viable and legally legitimate one.
[43] Relying on rule 2.01 of the Rules of Civil Procedure and the Alberta Court of Appeal's decision in Bridgeland Riverside Community Assn. v. Calgary (City), 1982 ABCA 138, [1982] A.J. No. 692, 135 D.L.R. (3d) 724 (C.A.), the majority asserts that treating procedural flaws or defects as fatal nullities, incapable of amendment, is inconsistent with the court's obligation to secure the just determination of the matters in dispute.
[44] This conclusion ignores the critical fact that the respondent's failure to obtain a representation order in time was not a mere procedural defect or flaw. The need for a representation order is a substantive statutory requirement; without one, s. 3(2) expressly bars suits against unions. The requirement may be cumbersome, and it has been subject to criticism (see, for example, P.I.P.S.C., at para. 45; and Kiewning v. Communications, Energy and Paperworkers Union of Canada, Local 324, [2011] O.J. No. 599, 2011 ONSC 712 (S.C.J.), at para. 32), but that does not undermine its validity.
[45] The majority's reliance on rule 2.01 is also misplaced. That sub-rule is limited to situations where there has been non-compliance with the Rules of Civil Procedure. It cannot operate to excuse non-compliance with a statute.
[46] Both the reasons of the majority and the endorsement of the motion judge are also critical of the appellants' conduct in this case. The majority finds that Local 773 has engaged in a "carefully designed tactical ploy to avoid having the respondent's claim adjudicated on the merits".
[47] It is important at this stage to review the chronology. The respondent sued Local 773 and in its statement of defence Local 773 pleaded and relied upon the Act. Instead of moving for a representation order so as to avoid the operation of the Act, the respondent brought a motion for an order amending her statement of claim to add the individual appellants as defendants.
[48] Thus, once the respondent was served with Local 773's statement of defence, she was put on notice of her failure to comply with the Act. This was approximately twenty months before the limitation period expired. The respondent subsequently took an incorrect step in an attempt to remedy her non-compliance with the Act. At some point in litigation, a party must live with the consequences of their action or non-action.
[49] In any event, the alleged desire of the appellants to avoid a determination on the merits is hardly unique to this case. Sometimes, parties exploit advantages that the law offers them in a manner that may offend our sense of fairness. Sometimes, the application of the law leads to harsh results. But that does not mean that courts can disregard the will of the legislature and ignore a clear statutory requirement on the basis that its application would appear to be unfair.
[50] The decision of the motion judge and the reasons of my colleagues inject a degree of uncertainty into the law. As a result of the majority's decision, the statutory requirement for a representative order is no longer absolute, but dependent on the equities and circumstances of any given case. This court has stated that uncertainty is particularly unacceptable when it comes to the law of limitation of actions: Markel Insurance Co. of Canada v. ING Insurance Co. of Canada, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.
[51] Worse, the method chosen to achieve that result is ill-suited for its purpose. The motion judge found that the order the respondent sought was properly characterized as a motion to correct an error in the title of proceedings under rule 5.04(2). In my view, she erred in so finding. This is not a misnomer case, as there is no question that Local 773 was correctly named. This is a case where there has been non-compliance with a statutory requirement and a new party has been added. One need only look to the form of the order granted by the motion judge. She did not make an order under rule 5.04(2); rather, she made a representation order.
[52] Finally, the reasons of the majority raise the issue of how s. 3(2) of the Act should be applied in the contemporary context of the labour relations regime. The majority take the position that legislation enacted in the 1940s for the protection of trade unions should not serve to bar an employee's wrongful dismissal suit in the present case. They reason that the law is archaic and that this fact should be borne in mind when considering whether the respondent's action is a nullity.
[53] I disagree with that analysis. It is not open to courts to ignore legislation on the basis that they feel it is outmoded or archaic. Such an approach is contrary to the basic rules of our parliamentary democracy because it usurps the legislative role of government. This, of course, is a role for which courts are untrained and unaccountable. This court expressed a desire for legislative reform of s. 3(2) of the Act in P.I.P.S.C.; it does not have the authority to make the desired change itself by declining to apply the provision.
[54] The majority also reasons that because s. 3(2) is, in their view, archaic, that is a factor that can be taken into account in the analysis of whether the respondent's claim is a nullity. I disagree. Subsection 3(2) is not a mere factor to be balanced against others; it either applies or it does not. If it applies, and under the current state of law there is no doubt that it does, then that ends the analysis.
[55] For these reasons, I would allow the appeal and strike the respondent's statement of claim.
Disposition
Appeal dismissed.
End of Document
