COURT FILE NO.: 03-CV-254370CM1
DIVISIONAL COURT NO.: 107/04
DATE: 20040310
SUPERIOR COURT OF JUSTICE - ONTARIO
(Divisional Court)
RE: CRAIG STEWART, PAUL LORION, WILLIAM HARCOURT
AND THE INDIVIDUALS LISTED ON SCHEDULE "A"
Plaintiffs
- and -
THE TORONTO PROFESSIONAL FIRE FIGHTERS' ASSOCIATION,
LOCAL 3888 AND CITY OF TORONTO
Defendants
BEFORE: Mr. Justice D. Rutherford
COUNSEL: Raj Anand, for the plaintiffs
Robert Fredericks & Kerri Kitchura, for the defendant, City of Toronto
Sean McGee, for the defendant, The Toronto Professional Fire Fighters'
Association, Local 3888
HEARD: March 8, 2004
E N D O R S E M E N T
RUTHERFORD J.:
[1] On January 19, 2004, Sanderson J. refused to strike out the Statement of Claim herein against it. The City now seeks leave to appeal to the Divisional Court.
[2] The City argues that an employer cannot at common law be impleaded by an employee seeking a remedy as a result of the employees' union breaching its duty to represent the employee fairly. That may have been a traditional approach at common law and, I can see that one possible outcome of an action such as this may be that no remedial order impacting the employer is made.
[3] However, the common law is not a frozen or static thing. The evolution of remedies even without statutory intervention or nudging is a dynamic feature of the common law. To deny a plaintiff the possibility of establishing a right to a possible remedy at the pleadings stage without the benefits of the contextual fabric of the evidence would certainly chill if not freeze that dynamic aspect of the common law.
[4] I think Sanderson J. gave persuasive reasons for refusing to strike the claim against the City. I would have come to a similar conclusion.
[5] I must decline to grant leave and dismiss this motion. Costs are assessed at $2,000 payable within 30 days by the moving party to the Union and to the plaintiffs as a group, for a total of $4,000.
RUTHERFORD J.
DATE: 20040310