Kelava v. Spadacini, 2019 ONSC 6314
CITATION: Kelava v. Spadacini, 2019 ONSC 6314
DIVISIONAL COURT FILE NO.: 435/18
DATE: 20191030
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Leitch, Sachs and D.L. Corbett JJ.
BETWEEN:
DAVID KELAVA and THE UNITED BROTHERHOOD OF RETAIL, FOOD, INDUSTRIAL AND SERVICE TRADES INTERNATIONAL UNION
Applicants
– and –
DANTE SPADACINI
Respondent
COUNSEL:
Melvyn L. Solmon and Laney J. Paddock, for the Applicants
Dante Spadacini, acting in person
HEARD at Toronto: October 30, 2019
Oral Reasons for Judgment
Leitch J. (Orally)
[1] The applicants make application amongst other things for:
(a) an order quashing the order proclaimed by the Small Claims Court on June 21, 2018 that ordered that the defendants to the action be amended to “David Kelava on his own behalf and on behalf of all members of the United Brotherhood of Retail, Food, Industrial Services Trades International Union”;
(b) an order declaring that the Small Claims Court has no jurisdiction to decide the action in issue; and
(c) an order dismissing the action identified as the Small Claims Court action in issue.
[2] The substance and nature of the respondent, Mr. Spadacini’s claim is within the jurisdiction of the Small Claims Court. However, he wished to sue a trade union, an unincorporated association.
[3] As stated by the Court of Appeal in Lawrence v. International Brotherhood of Electrical Workers, 2017 ONCA 321 at para. 16, “the proper way to sue a trade union is to obtain a representation order pursuant to Rule 12.07 of the Rules of Civil Procedure, authorizing one or more members of a union to defend a proceeding on behalf of all other members”.
[4] The position of the applicant is that the Deputy Judge of the Small Claims Court had no jurisdiction to make such an order and he exceeded his jurisdiction in doing so.
[5] Since the issue raised is a jurisdictional issue, it is appropriately before this court for review.
[6] The Deputy Judge referenced Rule 1.03(2) of the Small Claims Court Rules that states: “that if such rules do not cover a matter adequately, the court may make any order that is just and the practice shall be decided by analogy to the Small Claims Court Rules, by reference to the Courts of Justice Act, and if the court considers it appropriate by reference to the Rules of Civil Procedure.
[7] The Deputy Judge relied on Rule 12.07 the Rules of Civil Procedure and granted the representation order in issue. The Deputy Judge noted that David Kelava, an executive member of the union, was already named as a defendant.
[8] We are satisfied that the Deputy Judge did not err in making the representation order in issue because in our view the legislature did not intend to omit from the Small Claims Court Rules any reference to representation orders.
[9] These are not circumstances, paraphrasing Nordheimer JA. in Bruyea v. Canada (Vetern Affairs), 2019 ONCA 599, where it is apparent that the legislature decided that some motions take on significance for the parties where the result should only be determined by a judge of the Superior Court. Further, there is no principled reason why the legislature would seek to prohibit a trade union from suing or being sued in the Small Claims Court.
[10] In our view, the Small Claims Court Rules contain a “gap”, a gap that the Small Claims Court has jurisdiction to fill under Rule 1.03(2) by reference to the Rules of Civil Procedure.
[11] For these reasons, the application is dismissed.
[12] I have endorsed the Application Record as follows: “This application is dismissed for oral reasons given. Costs to respondent all inclusive, fixed at $600.”
Leitch J.
I agree
Sachs J.
I agree
D.L. Corbett J.
Date of Oral Reasons for Judgment: October 30, 2019
Date of Release: November 1, 2019
CITATION: Kelava v. Spadacini, 2019 ONSC 6314
DIVISIONAL COURT FILE NO.: 435/18
DATE: 20191030
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Leitch, Sachs and D.L. Corbett JJ.
BETWEEN:
DAVID KELAVA and THE UNITED BROTHERHOOD OF RETAIL, FOOD, INDUSTRIAL AND SERVICE TRADES INTERNATIONAL UNION
Applicants
– and –
DANTE SPADACINI
Respondent
ORAL REASONS FOR JUDGMENT
LEITCH J.
Date of Oral Reasons for Judgment: October 30, 2019
Date of Release: November 1, 2019