COURT OF APPEAL FOR ONTARIO
CITATION: Branch 1 of the Polish National Union of Canada v. Polish National Union of Canada Inc., 2015 ONCA 91
DATE: 20150209
DOCKET: C59015
MacFarland, Hourigan and Benotto JJ.A.
BETWEEN
Branch 1 of the Polish National Union of Canada, an unincorporated association, led by the individual board members, Jozeff (Joseph) Aleksandrowicz, Henryk (Henry) Kacprzak, Anna Kacprzak, Barthlomiej (Bart) Habrowski, and Antoni Kantor
Appellants (Applicants)
and
Polish National Union of Canada Inc., and Polish National Union of Canada, and Bogan Adamczak, Stanislawa (stella) Adamczak, Euggeniusz Boryszko, Danuta Boryszko, Bogus Law (Jack) Bukin, Danuta Bukin, Jerry Chalubinski, Jan Cylke, Jan Cuba, Stanislaw Godzisz, Jan Komor, Andrezej Legends, Josef Malexcki, Wieslaw Magiera, Iwona Rebiszewski, Stefan Skulski, Stanislaw (Stan) Szustak, Marek Urbaniak, Grzegorz (Greg) Wasniewski
Respondents (Respondents)
James F. Diamond, for the appellants
Ronald S. Segal and Maria Constantine, for the respondents
Heard and released orally: January 29, 2015
On appeal from the order of Justice Michael A. Penny of the Superior Court of Justice, dated May 28, 2014.
ENDORSEMENT
[1] The appellants appeal the judgment of the application judge and argue essentially that he failed to deal with all of the issues that were before him. This litigation arises as the result of a disagreement between the Branch and the Union over the ownership and the use of certain property.
[2] Each side brought an application “competing applications” as described by the application judge and the relief generally sought by each of the parties is summarized in the first four paragraphs of the reasons.
[3] There were two central issues. The first was the ownership of the properties where Branch 1 had been meeting for many years and the second was described as “governance issues”.
[4] The application judge decided the property issue and no appeal is taken from that decision. On the governance issues, the court determined that the appellants had not been afforded natural justice at a special meeting called by the president of the HEB on February 15, 2013. The appellants asked the court to invalidate the actions taken by the Union at that meeting as follows:
- the removal of Aleksandrowicz as a member and officer of the Branch;
- the dissolution of Branch 1 and the termination of membership in the Union of all Branch 1 members;
- the establishment of Branch 26 as the successor to Branch 1.
[5] The court quashed the decision to strip Aleksandrowicz of his membership and his office and it quashed the decision to dissolve Branch 1 and invalidated the termination of all Branch 1 members and the “purported” replacement of Branch 1 with the successor Branch 26.
[6] Before the application was heard, the appellant sought an injunction to prevent the Union from holding its national convention on December 14, 2013. Before this date, there had been some negotiations between the parties, a mediation attempt that unfortunately was unsuccessful and the convention had been adjourned to this date.
[7] The motion proceeded before Brown J. on December 12, 2013, and his reasons refusing the injunction were released the next day. The agenda for the proposed business that would be conducted at that meeting was before the court and is referenced in para. 31 of the motion judge’s reasons. At para. 47 of his reasons, the motion judge said:
Consequently, while I am not prepared to grant a broad injunction restraining the Union from holding its National Convention tomorrow, I do order that the Convention may only proceed subject to the following condition – although the Union can conduct the general business and proceed to hold the various elections described in its agenda, the Union cannot otherwise conduct any business or pass any resolution concerning any of the issues described in the prayer for relief in the Union’s notice of application. (Emphasis added.)
[8] I emphasize his words “in the Union’s notice of application”. The order did not preclude anything else. The convention proceeded, the elections were held as outlined in the agenda.
[9] In this court, the appellants argue that their victory before Penny J. is a hollow one because he did not take the further step and invalidate all of the actions taken at the national convention in December 2013. They say that because of the actions taken by the HEB in February of 2013 where their membership was effectively terminated, they were precluded from participation in the convention held in December. In the final result, those actions had all been quashed and so too they say should the business conducted at the national convention which they couldn’t participate in because of the actions taken in February.
[10] The application judge in his reasons noted that both sides had submitted draft forms of judgment that “raised collateral issues that were not addressed in argument”. The appellants say invalidation of the elections held at the national convention were not collateral and this issue was put before the motion judge. There are two problems with this argument.
[11] First, the application judge in his reasons specifically states that other than the matters he did deal with the other matters raised in the draft forms of judgment were collateral and because they were not specifically addressed he would not make orders in relation to them. If as the appellants now argue these matters were specifically addressed, then the obligation was to return to the application judge and seek adjudication on those issues not to raise it in this court by way of appeal.
[12] Second, the order of Brown J. specifically permitted the Union to carry on with the national convention and the elections as specifically set out in the agenda which the motion judge recited in his reasons as described above. That order was not appealed and the elections proceeded as authorized by it. The damage has been done and the “irreparable harm” foreseen by the motion judge had occurred, yet the injunction did not issue and the application judge stated the matter to be collateral and not specifically addressed.
[13] In these circumstances, the appellants cannot succeed. Their remedies were to attempt to appeal the refusal to grant them an injunction to prevent the convention being held and failing that to put the issue of the validity of those elections held at that time front and centre and squarely before the application judge. This court has no original jurisdiction and in these circumstances, the appeal must be dismissed.
[14] For oral reasons given, the appeal is dismissed. Costs to the respondent fixed in the sum of $24,832.76 inclusive of disbursements and HST.
“J. MacFarland J.A.”
“C.W. Hourigan J.A.”
“M.L. Benotto J.A.”