Court of Appeal for Ontario
Date: May 15, 2019
Docket: C65155/C66387
Judges: Rouleau, van Rensburg and Benotto JJ.A.
Between
Tracey Brown, Angela Clark, Dennis Boland and Cornelius Keigher
Plaintiffs (Respondents/Appellants by way of cross-appeal)
and
Lawrence J. Hanley on his own behalf and on behalf of all members of the Amalgamated Transit Union (International) and Amalgamated Transit Union (ATU), Local 113
Defendants (Appellant/Respondent by way of cross-appeal)
Counsel
John McLuckie and Alycia Shaw, for the appellant/respondent by way of cross-appeal
Sean Dewart, Tim Gleason and Adrienne Lei, for the respondents/appellants by way of cross-appeal
Brian Shell, for the Amalgamated Transit Union (ATU), Local 113
Heard: January 24, 2019
On appeal from: the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated February 15, 2018, with reasons reported at 2018 ONSC 1112, 2018 C.L.L.C. 220-031.
Benotto J.A.:
I. FACTS
[1] The Amalgamated Transit Union (International) (the "International") is an international trade union headquartered in the United States. The appellant, Lawrence J. Hanley, is the International's president. The respondents are four rank and file members of the International's Toronto-based affiliate, the Amalgamated Transit Union (ATU), Local 113 ("Local 113").
[2] Relations between the members of Local 113 and the International are governed by the International's Constitution and General By-Laws of the Amalgamated Transit Union (the "Constitution"). The respondents brought an action in the Superior Court of Justice seeking, among other things, a declaration that certain sections of the Constitution are void for unconscionability. In response, the appellant brought a motion to strike or stay the action on various grounds under r. 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Local 113, which received leave to intervene as an added defendant to the action, supported the appellant's motion.
[3] The motion judge granted a temporary stay of the action but dismissed the balance of the motion. He found that the action presented arguable issues which the respondents had capacity to raise and which the court had jurisdiction to determine. However, the motion judge held that the action was premature and that the respondents must first exhaust the International's constitutional amendment process before seeking relief in the court. The action was temporarily stayed on this basis.
[4] Mr. Hanley, on his own behalf and on behalf of all members of the International, appeals the dismissal of the motion to strike. The respondents cross-appeal the temporary stay. Local 113 supports the position of the appellant on both the appeal and cross-appeal.
II. FACTS
[5] The International was established in 1892 and currently represents over 200,000 transportation workers across 240 local union chapters in the United States and Canada. Local 113 was formed in Toronto in 1899 through a charter issued by the International. Local 113 currently represents approximately 11,000 employees of the Toronto Transit Commission and 200 employees of Veolia Transportation in collective bargaining.
[6] Members of Local 113 are also members of the International. As such, they are bound both by Local 113's internal by-laws and by the Constitution. The Constitution is capable of amendment at the International's Convention by a two-third's majority vote.
[7] The respondents, individual members of Local 113, filed a statement of claim in the Superior Court of Justice seeking a declaration that nine sections of the Constitution are void for unconscionability.[1] They also sought an injunction enjoining the appellant from taking any reprisals against them for having brought the action.
[8] The respondents argued that the impugned provisions of the Constitution prevent members of Local 113 from freely deciding whether or not to disaffiliate from the International and should therefore be declared unconscionable and of no force or effect. In their view, the provisions achieve this effect by:
allowing 10 members of Local 113 to block a disaffiliation vote (s. 17.1);
requiring Local 113 to forfeit its property to the International in the event of disaffiliation (s. 13.4); and
imposing sanctions against Local 113 or its members for expressing dissent or attempting to disaffiliate (s. 13.17, 22.1).
[9] In the result, the respondents argued, the disaffiliation of Local 113 from the International is rendered practically impossible. The provisions are therefore unconscionable as a matter of contract law and run afoul of statutory and constitutional principles protecting the right of Canadian workers to freely choose their own union.
[10] The appellant, with the support of Local 113, filed a notice of motion to strike or stay the claim pursuant to r. 21.01 of the Rules of Civil Procedure. He argued that:
The court lacked jurisdiction over the action because disputes of this kind are to be dealt with at the Ontario Labour Relations Board (the "Board").
The respondents lacked capacity to commence the action in the absence of a representative order, because the relief they sought would bind thousands of other members of Local 113.
The statement of claim disclosed no reasonable cause of action because (a) it failed to plead the necessary elements of a claim of unconscionability, and (b) an actionable lis or dispute between the parties had not yet developed, such that the claim was not justiciable.
[11] In the alternative, the appellant sought a stay of the action and an order requiring the respondents to exhaust all internal rights and remedies under the Constitution to resolve the dispute prior to seeking relief in the court.
III. DECISION BELOW
[12] The motion judge dismissed the appellant's motion to strike the action. However, he granted a stay of the action pending the respondents' pursuit of amendments to the Constitution through the International's amendment process. Further, the motion judge enjoined both the International and Local 113 from imposing any form of discipline in response to the respondents' pursuit of such amendments. He held that, following exhaustion of the amendment process, the stay could be lifted by any party, but that if the respondents chose not to engage that process, their action would be permanently dismissed.
[13] In dismissing the motion to strike, the motion judge rejected each of the arguments advanced by the appellant on the issues of jurisdiction, capacity and no reasonable cause of action. His ruling on each issue is summarized below.
With Respect to Jurisdiction
[14] The motion judge rejected the appellant's claim that the court lacked jurisdiction to grant the relief sought. He reviewed developments in the law applicable to labour unions. While unions were once treated as mere associations whose members were connected directly to one another by a web of individual contracts, the Supreme Court of Canada's decision in Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493 recognized that unions possess a discrete legal identity in their own right. When a person joins a union, they are now regarded as contracting directly with the union as such, pursuant to terms codified in the union's constitution or founding charter. The act of membership thus creates a relationship "in the nature of a contract" between the member and the union, capable of enforcement by either party: Berry v. Pulley, at para. 48.
[15] In light of the change augured by Berry v. Pulley, the motion judge held that, as a matter of contract law, individual union members could sue their union for declaratory relief with respect to the union constitution. To obtain relief, however, a member would have to show that a significant right or interest was at play, and that internal means to remedy the issue had been exhausted. Provided that those two conditions were met, the court could exercise its jurisdiction to rule on the issue, unless its jurisdiction was ousted by the legislature. The motion judge held that no such ouster applied in this case, as the terms of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the "LRA") did not confer jurisdiction on the Board to determine the legality of union constitutions. The court therefore had jurisdiction to grant the respondents' request for relief.
With Respect to Capacity
[16] The motion judge also rejected the appellant's submission that the respondents lacked capacity to bring the action. Under the law of contract, parties to a contract may sue to enforce its terms and determine the extent to which the contract creates enforceable promises. In the motion judge's view, the fact that the respondents are four rank and file members lacking the representative capacity to bind other members of Local 113 was of no moment. Their status as parties to the contract established their capacity to file suit.
Regarding the Cause of Action
[17] Finally, the motion judge rejected the appellant's argument that the respondents' statement of claim disclosed no reasonable cause of action. Citing this court's decision in Birch v. Union of Taxation Employees, Local 70030, 2008 ONCA 809, 93 O.R. (3d) 1, the motion judge concluded that the respondents correctly pleaded the necessary elements of a claim of unconscionability: that the Constitution, as an adhesion or 'take-it-or-leave-it' contract, is forged through a pronounced inequality of bargaining power, which the International abused by including terms that thwart any prospect of Local 113's disaffiliation. The claim of unconscionability was therefore arguable and should not be struck at the pleadings stage.
[18] The motion judge further rejected the contention that the claim disclosed no cause of action because there was no actionable lis or dispute between the parties. To the contrary, he observed that the parties were actively disputing the legality of the contract binding them together. In his view, the dispute was neither academic nor hypothetical, but real and immediate, and thus it was justiciable.
IV. EVENTS AFTER THE ORDER
[19] The motion judge's order staying the action and dismissing the motion to strike contained both interlocutory and final portions. In general, where an order has both interlocutory and final portions, the appeal lies to this court only from the final portion of the order: Cole v. Hamilton (City), 60 O.R. (3d) 284 (C.A.), at para. 9. Leave to appeal from the interlocutory portion must be obtained from the Divisional Court, at which point a party may move to have the appeals heard together in this court: Azzeh v. Legendre, 2017 ONCA 385, 135 O.R. (3d) 721, at para. 25; Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 6 and 19(1)(b).
[20] The parties to this appeal pursued their appeals at first instance in the proper courts. The appellant filed a notice of appeal in this court against the motion judge's final order dismissing the motion to strike. [2] The respondents sought and were granted leave by the Divisional Court to appeal the motion judge's interlocutory stay order. Shortly after the Divisional Court granted leave, Hourigan J.A. granted the appellant's request to consolidate the Divisional Court appeal with the appeal in this court. Both appeals are therefore properly before this court.
[21] The appellant seeks to rely on fresh evidence detailing the steps taken by the parties, since issuance of the motion judge's order, to amend the Constitution through internal union channels. The evidence reveals that on or about March 18, 2018, the membership of Local 113 approved a motion to amend those provisions of the Constitution that the respondents argue are unconscionable. This motion, brought by the respondents and adopted by Local 113 as a resolution, was forwarded to the International's offices in Maryland as required by the internal procedures of the International. It will be considered at the International's Triennial Convention scheduled for September 23-27, 2019 in Las Vegas, Nevada. Following a period of debate, it will be voted on. In the meantime, the International has retained a Canadian labour law expert, Professor Brian Langille, to provide advice on amending the Constitution in light of the requirements of Ontario and Canadian labour law.
V. ISSUES
[22] The issues are:
by way of appeal, whether the motion judge erred in dismissing the motion to strike; and
by way of cross-appeal, whether the motion judge erred in temporarily staying the action.
[23] The standard of review of the motion judge's decision to dismiss the motion to strike is correctness, as the decision determined questions of law: Attis v. Canada (Health), 2008 ONCA 660, 93 O.R. (3d) 35, at para. 23; Canadian Union of Postal Workers v. Quebecor Media Inc., 2016 ONCA 206, 129 O.R. (3d) 711, at para. 2.
[24] By contrast, the motion judge's decision to impose a temporary stay of the action was discretionary in nature. The cross-appeal thus attracts a deferential standard of review. The court will only intervene if the exercise of the motion judge's discretion was based on a wrong principle, a failure to consider a relevant principle or a misapprehension of the evidence: Aldo Group Inc. v. Moneris Solutions Corporation, 2013 ONCA 725, 118 O.R. (3d) 81, at para. 30.
VI. ANALYSIS
The Appeal of the Dismissal of the Motion to Strike
[25] I begin with a reference to the relevant portions of r. 21.01:
21.01 (1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
(a) the court has no jurisdiction over the subject matter of the action;
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;
[26] Against these parameters, I will deal with each of the appellant's submissions.
No Reasonable Cause of Action – r. 21.01(1)(b)
(i) Unconscionability
[27] The appellant submits that the statement of claim failed to plead the requisite elements of unconscionability, which in his view are: (i) a pronounced inequality of bargaining power, (ii) a substantially improvident bargain, and (iii) abuse of the inequality of power. He submits that the claim merely alleges an inequality of bargaining power and this does not in itself render a contract unconscionable. In his view, the motion judge erred in finding that additional facts, though not pleaded, somehow arose from vulnerabilities supposedly inherent to union membership itself. In particular, the appellant points to the motion judge's reasons at para. 71:
I disagree with the Defendants' submission that the Plaintiffs have only pleaded an adhesion contract and no facts upon which an abuse of power could be established. Those facts arise from the circumstance that the union members are notoriously in a situation of dependency, vulnerability, lack of independent representation, peer pressure, and reliance on the collective constituted by the union. And, as Justice Iacobucci noted in Berry v. Pulley (SCC), it must be borne in mind that a statutory labour relations scheme is superimposed over the contract between the member and the union and can create legal obligations. The contract, its terms, and the notion of the bargaining associated with membership must be viewed in this overall statutory and historic context.
[28] The appellant submits that this is a "remarkably pejorative" analysis that reflects derogatory assumptions about unions that were not expressly pleaded.
[29] Local 113 adopts the submissions of the appellant. In addition, it submits that the court should recognize that union constitutions are not ordinary commercial contracts, but are instead developed democratically over time by the members whom they bind. These constitutions should not be subject to the common law doctrine of unconscionability, because application of the doctrine would undermine their democratic, evolutionary nature.
[30] I do not agree. There is no reason to eliminate the doctrine of unconscionability in the context of this case. This court has previously held that the doctrine of unconscionability applies in disputes between a union and its members. In Birch, at para. 39, Armstrong J.A. said:
I can discern nothing in the unique contractual relationship between a union member and his or her union which would suggest to the court that we should refuse to apply the doctrine of unconscionability in appropriate circumstances. To suggest otherwise would be to deny the exercise of the equitable jurisdiction of the court to provide a remedy to individual members who have suffered an injustice at the hands of their union.
[31] In Ontario, the test for unconscionability contains four elements, as set out in Heller v. Uber Technologies Inc., 2019 ONCA 1, 52 C.C.E.L. (4th) 10, at para. 60:
a grossly unfair and improvident transaction;
a victim's lack of independent legal advice or other suitable advice;
an overwhelming imbalance in bargaining power caused by the victim's ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
the other party's knowingly taking advantage of this vulnerability.
[32] As confirmed by the Supreme Court in Berry v. Pulley, union contracts, as contracts of adhesion, entail an inherent inequality of bargaining power. The respondents allege that the International took advantage of this dynamic by incorporating into the Constitution what they describe as three fundamentally inequitable provisions: the 10-member veto on disaffiliation; the forfeiture of assets upon disaffiliation; and the suppression of disaffiliation-related activities through the threat of internal discipline. There is no indication that the respondents received legal advice or that they would have been able to negotiate the terms of the union contract had they received it: see Uber, at para. 68. The claim of unconscionability was therefore arguable and should not have been struck at the pleadings stage. The motion judge correctly disposed of this issue.
(ii) Justiciability
[33] The appellant submits that the motion judge further erred in his r. 21.01(1)(b) analysis by finding the existence of a justiciable dispute between the parties, despite the fact that the respondents failed to plead the infringement of any individual right or entitlement. Absent an allegation that the International disciplined or otherwise took action against the respondents for attempting to pursue disaffiliation, the appellant argues the claim is not justiciable.
[34] I reject this submission. The respondents sought declaratory relief concerning the legality of specific provisions in the Constitution. Courts have jurisdiction to grant such relief under their inherent jurisdiction and pursuant to s. 97 of the Courts of Justice Act.
[35] A declaratory judgement by a court is "a formal statement….pronouncing upon the existence or non-existence of a legal state of affairs": Zamir & Woolf, The Declaratory Judgment, 3rd ed. (London: Sweet & Maxwell, 2002), at para. 1.02. It does not require an injury or wrong to have been committed or even threatened. Rather, it is available "where the dispute before the court is real and not theoretical, where the party raising the issue has a genuine interest in its resolution, and where the respondent has an interest in opposing the declaration sought": Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81.
[36] Here there is a real question as to the legality of various provisions in the Constitution. The question is raised by the respondents who have an interest in raising it. The appellant, on the other hand, has a clear interest in opposing the declaration sought. The court has discretion to resolve the dispute by declaration. If the declaration is granted, the dispute will be settled between the parties. In my view, the motion judge therefore correctly found the dispute to be justiciable.
Lack of Capacity – r. 21.01(3)(b)
[37] The appellant, supported by Local 113, submits that the motion judge erred in misconstruing the issue with respect to capacity. The motion judge concluded that the respondents had capacity to sue as parties to the contract. He went on to hold, at para. 65, that "[w]hether a formal representative order is required to bind the Defendants to this action in contract is just a procedural technicality". The appellant submits that the issue under r. 21.01(3)(b) was not about the appellant or Local 113. Rather, it was about the respondents and whether they lacked capacity to file suit on behalf of all other members of Local 113 in the absence of a representative order under r. 12.08. The appellant refers to paragraph (1)(a) of the Amended Amended Statement of Claim, which asks the court to deem the sections of the Constitution "void and of no force or effect insofar as the plaintiffs and other members of Local 113 of the Amalgamated Transit Union are concerned". The impugned sections provide for forfeiture of the Local's property upon disaffiliation and the power to place the Local in trusteeship.
[38] The motion judge relied on Berry v. Pulley in concluding that the respondents had standing to bring their action. I agree that, pursuant to Berry v. Pulley, the respondents would have the right to bring an action against their union to assert their individual claims.
[39] There, the matter involved an intended action by pilots against their own trade union. The issue before the Supreme Court was whether individual union members may be personally liable to other members for breach of contract. The court held, at para. 48, that when a member joins a union, "a relationship in the nature of a contract arises between the member and the trade union", such that the member can sue the union for an alleged breach. However, the union's liability in this context is limited to its own assets and cannot extend to its members personally. In reaching this conclusion, the court "discarded" the notion that every union member has a contract with the other members, in favour of a "common sense approach" that "each union member has a contractual relationship with the union itself": at para. 5.
[40] The court in Berry v. Pulley also recognized, at para. 48, that the contractual relationship between a union and its members is unique:
…this relationship is in the nature of a contract because it is unlike a typical commercial contract. Although the relationship includes at least some of the indicia of a common law contract (for example offer and acceptance), the terms of the contractual relationship between the union and the member will be greatly determined by the statutory regime affecting unions generally as well as the labour law principles that courts have fashioned over the years. [Emphasis in original.]
[41] The court went on at para. 49 to note a number of distinguishing features of the typical union contract:
First, it is essentially an adhesion contract as, practically speaking, the applicant has no bargaining power with the union. Moreover, in many situations, union membership is a prerequisite to employment, leaving the individual with little choice but to accept the contract and its terms. Finally, it must be borne in mind that a statutory labour relations scheme is superimposed over the contract between the member and the union, and can create legal obligations. Consequently, the contract must be viewed in this overall statutory context.
[42] In my view, union contracts are distinct from commercial contracts in two additional respects. First, union contracts result from a process of deliberation among members who share certain interests in common as workers. The union as a legal entity plays no oppositional role in this process, even though it becomes a party to the resulting contract with its members. This is unlike the manner in which commercial contracts are formed or amended, where adverse parties are active participants in negotiations.
[43] A second distinguishing feature of union contracts flows from the democratic character of union membership. Unlike parties to a typical commercial contract, individual parties to a union contract become members of that union. As members they acquire the power to conduct the union's affairs collectively, often through a system of elected representatives. Union membership confers a range of other rights, obligations, and protections, including the right to propose changes to the contract through a periodic constitutional amendment process. What lone individuals may lack in bargaining power when joining a union thus contrasts sharply with the collective power they exercise as equal members.
[44] While the union contract is unique, and while common law contractual principles may need to be adapted in this context, none of this changes the fact that the respondents are parties to the contract with the capacity to sue. The motion judge concluded as much at para. 41:
Parties to a contract have the standing to sue to enforce the contract and to determine the extent to which a contract creates enforceable promises. In the immediate case, the Plaintiffs have standing to bring their action.
[45] While the motion judge's conclusion on this issue seems dispositive, he does not appear to have addressed the issue of the respondents' representative capacity – that is, their capacity to sue on behalf of all other members of Local 113, absent a representative order under r. 12.08. Nor did he address the appellant's broader concerns, including the trusteeship provisions, the Local's property on disaffiliation and the fact that these matters cannot be limited to the four claimants. The respondents point out that Local 113 has already been added as a defendant and will therefore participate in the action and be bound by the result. In oral submissions, the respondents proposed to resolve the issues by amending the pleadings to remove the words "and other members of Local 113 of the Amalgamated Transit Union" from paragraph 1(a). However, as the appellant submits, the impugned provisions of the Constitution cannot by their nature be declared void for only some members and not others. The proposed amendment would not solve this issue thus the respondents should not be able to proceed with their action without a representative order.
[46] I agree that these issues were not addressed in the court below. Given the novelty of this situation, whether the respondents should be required to obtain a representative order in order to bring their action and the remedies they can seek without obtaining such an order are issues that should be determined in the course of the proceedings. They cannot be determined on a final basis at this stage of the appeal and without the pleading having been amended.
Lack of Jurisdiction – r. 21.01(3)(a)
[47] The appellant submits that the motion judge identified several provisions of the LRA that were pertinent to many parts of the claim but then erred in subsequently determining that the court rather than the Board had jurisdiction over the claim.
[48] I do not agree. The Board has previously held that its mandate under the LRA does not include overseeing the internal governance of trade unions: see Ballantyne v. Ontario Secondary School Teachers' Federation, at para. 24. In addition, a long line of court jurisprudence confirms that, when a member joins a union, a contract is created between the member and the trade union, and an action may be brought by a member against the union for breach of contract: Berry v. Pulley, at paras. 48-49. See also: Lee v. Showmen's Guild of Great Britain, [1952] 2 Q.B. 329 (C.A.) at p. 341; Bonsor v. Musicians' Union, [1956] A.C. 104 (H.L.); Orchard v. Tunney, 8 D.L.R. (2d) 273 (S.C.C.) at p. 278; Howard v. Parrinton, 21 D.L.R. (3d) 395 (Ont. H.C.J.) at p. 400; Birch, at para. 50; G.W. Adams, Canadian Labour Law (2nd ed.) (Toronto: Thomson Reuters Canada Ltd., 2011) at para. 14.980.
[49] I therefore see no error in the motion judge's decision with respect to jurisdiction.
The Cross-Appeal of the Temporary Stay
[50] By way of cross-appeal, the respondents seek to set aside the motion judge's order granting a temporary stay of the action. This is directly related to the appellant's motion to adduce fresh evidence on this appeal.
Fresh Evidence
[51] As I noted above, the fresh evidence sets out the steps taken by the respondents to amend the Constitution to address the issues they raised through their court action. They brought a motion to Local 113 in March 2018, which the Local adopted as a resolution and forwarded to the International to be debated and voted on at the International's Triennial Convention in September 2019. In addition, the fresh evidence reveals that the International has retained a labour law expert to review and provide advice with respect to possible amendments of the Constitution. The respondents submit that the fresh evidence should not be admitted because it is not relevant and would not have changed the result on the motion.
[52] I disagree. The events that have taken place speak precisely to why the motion judge granted the stay in the first place. He made this clear, at paras. 78-80:
…the opposing views of the parties are worthy of a debate in a safe space before the parties turn to litigation.
In my opinion, given the court's historic reluctance to involve itself in the affairs of an association until after the processes of the association are exhausted, the case at bar is an appropriate case to grant a temporary stay provided that the Plaintiffs are protected from retaliatory action.
For the above reasons, I grant a temporary stay. The terms of the temporary stay are that: (a) the Plaintiffs may invoke the amendment process of the International Union's Constitution and General Laws to request amendments to Sections 12, 13.4, 13.5, 13.7, 17, 21.7, 22.1, 22.2 and 27; (b) the Defendants are enjoined from imposing any form of discipline, union charges, or reprisal in response to the Plaintiffs' request to amend the Constitution and General Laws; (c) following the exhaustion of the amendment process, the stay may be lifted upon application of either party; and (d) if the Plaintiffs do not request amendments to the International Union's Constitution and General Laws, then their action shall be permanently stayed or dismissed.
[53] The fresh evidence describes the unfolding of the constitutional amendment process anticipated by the motion judge and is highly relevant to the continuation of the stay. It is also credible evidence that could not have been obtained at the time of the hearing of the motion, since it relates to events that post-date the motion judge's decision. I would admit the fresh evidence as it meets the test set out in Sengmueller v. Sengmueller, 17 O.R. (3d) 208.
Merits of the Cross-Appeal
[54] The respondents ask this court to set aside the motion judge's decision to temporarily stay the action. I note that the stay is an interlocutory order entitled to significant deference from this court. An appellate court will overturn a stay only if the court below erred in principle, failed to consider a relevant principle, or misapprehended the evidence: Aldo Group, at para. 30.
[55] The respondents point to three alleged errors in the motion judge's stay decision. First, they submit he erred by applying administrative law principles governing judicial review of internal union decisions, rather than prejudice-based common law principles governing stays of civil actions framed in contract. Second, the respondents argue the motion judge misinterpreted the Constitution to erroneously conclude that it provides a reasonable internal remedy that the respondents could pursue in lieu of a court action. Third, they claim he fashioned an inadequate remedy as part of his stay order that fails to protect union members other than the respondents from retaliation for pursuing disaffiliation.
[56] I reject these submissions.
[57] With respect to the first argument, the respondents draw a distinction between challenges to specific union decisions on the one hand, and challenges to the legality of union rules on the other. Acknowledging that administrative law principles of prematurity and internal remedies apply to the first type of challenge, the respondents submit that they should not apply to the second. No case law is provided to support this submission. In my view, whether administrative law principles or common law principles governing stays of civil actions are applied, the result is the same. Given the novelty of the claim being advanced, the motion judge's decision to impose a temporary stay was reasonable in the circumstances. It was also reasonable in light of the uncertainty as to the need for a representative order and as to the available remedy should such an order not be obtained.
[58] The fresh evidence is directly relevant to the respondents' second argument on the cross-appeal. As the evidence shows, the respondents successfully advanced a motion within Local 113 proposing amendments to the Constitution. Local 113 adopted the motion as a resolution. It will now be discussed, debated and voted on at the International's Convention in September 2019. If the resolution is approved at Convention, the respondents will obtain precisely the relief they seek through this court action, which would in turn render the action moot. The notion that the Constitution provides no reasonable internal remedy is belied by these developments and must therefore be rejected.
[59] With respect to the respondents' third argument, the motion judge appears to have canvassed the terms of the stay with the parties, as indicated in his reasons at para. 75:
As it turns out, it is the matter of the threat of retaliatory action that has inhibited the Plaintiffs from resorting to the internal processes of the Constitution and General Laws. It emerged during oral argument that the ancillary injunctive relief was perhaps more important than the Plaintiffs' request of having various provisions of the Constitution and General Laws declared null and void and unenforceable, which will require a trial to resolve.
[60] As part of his stay order, the motion judge enjoined both the International and Local 113 "from imposing any form of discipline, union charges, or reprisal in response to the [respondents'] request to amend" the Constitution: at para. 80. The respondents complain that the order does not protect union members other than the respondents from retaliation. While I do not read the motion judge's order so narrowly, I note that the respondents have not brought forward any fresh evidence of actual retaliation suffered by their supporters. Absent such evidence, the argument that the stay order provides inadequate protection is merely speculative.
[61] For these reasons, I see no basis to interfere with the motion judge's exercise of his discretion to stay the action. I would uphold the stay on the same terms the motion judge imposed.
VII. CONCLUSION
[62] I would dismiss both the appeal and the cross-appeal. The parties agreed that, in the event of divided success, there would be no costs and I would order none.
Released: May 15, 2019
"M.L. Benotto J.A."
"I agree Paul Rouleau J.A."
"I agree K. van Rensburg J.A."
Footnotes
[1] Specifically, they challenged the legality of sections 12, 13.4, 13.5, 13.17, 17, 21.7, 22.1, 22.2 and 27 of the Constitution.
[2] The motion judge's finding that the respondents' claim disclosed a reasonable cause of action in unconscionability was interlocutory. However, in the circumstances, the appeal of that finding can be heard in this court because of its close connection to the other findings at issue on appeal: see Lax v. Lax, 70 O.R. (3d) 520 (C.A.), at para. 9.
