ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-478165
DATE: 20131218
BETWEEN:
DURVAL TERCEIRA, CESAR DANIEL AVERO AND JAIME MELO
Plaintiffs
- and -
UNIVERSAL WORKERS UNION, LABOURERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183 AND LABOURERS INTERNATIONAL UNION OF NORTH AMERICA
Defendants
Chris Donovan, for the Plaintiffs
Debra Newell, for the Defendant, Universal Workers Union, Labourers’ International Union of North America Local 183
Michael D. Wright and Elichai Shaffir, for the Defendant, LIUNA (Moving Party)
HEARD: September 20, 2013
REASONS FOR DECISION
FIRESTONE j.:
[1] The Labourers International Union of North America (“LIUNA”), brings this motion under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the following relief:
(a) A determination pursuant to rule 21.01(1)(a) of whether the Plaintiffs are precluded from pursuing their claims at paragraphs 1(e), 1(f), 1(g), and 53-57 of the Statement of Claim, which regards their expulsion from the membership of LIUNA because they failed to exhaust the internal appeal route in LIUNA’s constitution.
(b) In the alternative, an order pursuant to rule 21.01(3)(a) dismissing the part of the Plaintiffs’ action at paragraphs 1(e), 1(f), 1(g), and 53-57 of the Statement of Claim because pursuant to LIUNA’s constitution exclusive jurisdiction is conferred to the Federal District Court of Columbia.
The Parties
[2] LIUNA, the moving party, is an international union based in Washington, D.C. and represents approximately 500,000 members who work in construction, waste management, and show service in both Canada and the United States.
[3] The Universal Workers Union, Labourers International Union of North America Local 183 (“Local 183”) is a trade union that represents approximately 28,000 persons employed in the construction industry in Toronto, Ontario and surrounding regions.
[4] Durval Terceira, Cesar Daniel Avero, and Jaime Melo (“the Plaintiffs”) were elected members of LIUNA and Local 183.
Background
[5] The Plaintiffs seek damages for wrongful dismissal as a result of their termination from Local 183. The Plaintiffs also seek a declaration that the September 22, 2011 decision by LIUNA to expel the Plaintiffs from membership was not conducted in accordance with the provisions of LIUNA’s constitution governing the international union’s management and affairs as well as a declaration that their resulting expulsion is null and void and of no force and effect.
[6] Finally, the Plaintiffs seek a mandatory order requiring LIUNA to reinstate the Plaintiffs’ memberships in Local 183.
Position of the Parties
[7] LIUNA, the moving party, argues that paragraphs 1(e), 1(f), 1(g), and 53-57 in the Statement of Claim challenging the Plaintiffs’ expulsion should be barred because the Plaintiffs failed to exhaust the internal appeal route in LIUNA’s Constitution.
[8] LIUNA argues that it is settled law the courts will not intervene in a union’s internal affairs where an alternative constitutional remedy exists including an internal appeal route unless such a remedy is “unreasonable, impractical or otherwise illusory.” LIUNA submits that its internal appeal route is not unreasonable, impractical, or illusory.
[9] In the alternative, LIUNA argues that this court does not have jurisdiction over the Plaintiffs’ claims at the paragraphs mentioned above because of the forum selection clause in LIUNA’s Constitution. The forum selection clause states that any challenge arising out of contractual rights allegedly premised upon LIUNA’s Constitution (which includes membership rights) shall exist only in the Federal District Court for the District of Columbia.
[10] Local 183 supports LIUNA’s position.
[11] The Plaintiffs argue that they are not obligated to exhaust the internal appeal mechanisms in LIUNA’s Constitution. They state their expulsion is void because it was made in breach of the principles of natural justice. Namely, the rights of appeal relied on are “unreasonable” and “impracticable.”
[12] The Plaintiffs further argue that the forum selection clause was imposed upon them. They did not bargain for such provision; therefore, they do not have to demonstrate a strong cause for not giving effect to the provision.
[13] In the alternative, the Plaintiffs state that a strong cause is established because having the expulsion claims litigated in the Federal District Court of Columbia undermines the public policy objectives of avoiding the multiplicity of proceedings and preventing potentially inconsistent results in those proceedings.
[14] The Plaintiffs also argue that a forum selection clause in a contract does not deprive the court of jurisdiction over a matter.
Analysis
(a) Are the Plaintiffs precluded from pursuing their claims at paragraphs 1(e), 1(f), 1(g), and 53-57 of the Statement of Claim regarding their expulsion from membership in LIUNA because they failed to exhaust the internal appeal route?
[15] The relevant constitutional provisions can be summarized as follows:
• Article XII of LIUNA’s Uniform Local Union Constitution requires each officer or person assuming an elective position to pledge “to recognize and comply with all of the provisions of [LIUNA’s] constitutions.”
• Article III, Section 3(h) of the same Constitution requires all members exhaust internal remedies in accordance with Article XVI, Section 2 of the International Union Constitution.
• Article XVI, Section 2 of the International Union Constitution states “no member shall bring or cause to be brought in any court … any action against a Local Union, District Counsel of the International Union … in any matter involving an issue arising out of or related to the member’s membership, which is remediable within the framework of the International Union, Local Union or District Counsel Constitution without having first exhausted all of the remedies available under the aforesaid constitutions.”
• Article VIII (a-viii) of the International Union Constitution provides that “any member … aggrieved by a decision, direction, ruling or order of the General Executive Board shall have the right to appeal therefrom to the Convention of the International Union.”
[16] It is settled law that a court should not interfere in the internal affairs of a union where the union’s constitution and by-laws require members to exhaust all remedies available in the constitution and by-laws unless the right is unreasonable, impracticable, or illusory: see Wood, Wire & Metal Lathers’ International Union v. United Brotherhood of Carpenters and Joiners of America, 1973 135 (SCC), [1973] S.C.R. 756, at pp. 771-774; Pileggi v. C.U.P.W. (2005), 13 C.P.C. (6th) 373 (Ont. S.C.), at para. 44; and Boyko v. Canadian Pacific Railway, 2011 MBQB 25, [2011] 5 W.W.R. 521, at para. 80.
[17] The motion for the determination of this issue is brought pursuant to rules 21.01(1)(a). Case law has established that the test on a 21.01(1)(b) motion is assuming the facts in the Statement of Claim can be proved, whether it is “plain and obvious” that the pleading discloses no reasonable cause of action: see Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at pp. 979-980. The “plain and obvious” test is also the relevant test for rule 21.01(1)(a): see MacDonald v. Ontario Hydro (1994), 1994 7294 (ON SC), 19 O.R. (3d) 529 (Gen. Div.), at pp. 533-534; and Toronto-Dominion Bank v. Deloitte Haskins & Sells (1991), 1991 7366 (ON SC), 5 O.R. (3d) 417 (Gen. Div.), at pp. 418-419.
[18] Rule 21.01(2)(a) stipulates that no evidence is admissible unless leave is granted. I grant leave to file the affidavit of James Robbins sworn May 24, 2013 and the affidavit of Michael O’Brien sworn September 16, 2013.
[19] It is not “plain and obvious” that the Plaintiffs are precluded from pursuing that part of their claim regarding their expulsion from membership without first exhausting the internal appeal route. On the limited evidentiary record before me, a just determination of whether the subject union constitution procedures were “unreasonable, impracticable, or otherwise illusory” or whether LIUNA failed to adhere to procedural fairness or breached the principles of natural justice cannot be made.
[20] In my view, it is desirable and necessary that this legal question be determined on the basis of a full evidentiary record: see Gauthier v. Toronto Star Daily Newspapers Ltd. (2003), 2003 49328 (ON SC), 228 D.L.R. (4th) 748 (Ont. S.C.), at para. 9. LIUNA is at liberty to do so at the appropriate time pursuant to Rule 20.
(b) Should paragraphs 1(e), 1(f), 1(g), and 53-57 of the Statement of Claim be dismissed on the basis that pursuant to LIUNA’s Constitution exclusive jurisdiction is conferred to the Federal District Court for the District of Columbia?
[21] LIUNA argues that this court does not have jurisdiction over the Plaintiffs’ claim at the paragraphs indicated above because an agreement or statute, in this case the forum selection clause in Article XVI of LIUNA’s International Constitution, designates another jurisdiction as the forum for such determination.
[22] In 2249659 Ontario Ltd. v. Sparkasse Siegen, 2013 ONCA 354, [2013] ONCA 354, 115 O.R. (3d) 241, the court states in part as follows, at para. 25:
A forum selection clause applicable to the relevant litigation identifying a forum other than Ontario as the forum of choice cannot deprive Ontario jurisdiction simpliciter. A forum selection clause is relevant to whether Ontario should exercise its jurisdiction and not whether Ontario has jurisdiction.
[23] The existence of a forum selection clause is not in and of itself determinative of whether this court should assume jurisdiction over a foreign defendant based on jurisdiction simpliciter and forum non conveniens. This court recognizes that jurisdiction is a legal issue and forum non conveniens is discretionary.
[24] The issues of jurisdiction simpliciter and forum non conveniens were not argued before me. The parties are at liberty to bring a further motion for determining jurisdiction on that basis if they wish.
[25] The motion of LIUNA is therefore dismissed.
[26] If the parties cannot agree on costs, written submissions with a costs outline totaling no more than three pages may be filed by the Plaintiffs on or before January 17, 2014, and the Defendants on or before January 24, 2014.
Firestone J.
Released: December 18, 2013
COURT FILE NO.: CV-13-478165
DATE: 20131218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DURVAL TERCEIRA, CESAR DANIEL AVERO AND JAIME MELO
Plaintiffs
- and -
UNIVERSAL WORKERS UNION, LABOURERS INTERNATIONAL UNION OF NORTH AMERICA LOCAL 183 AND LABOURERS INTERNATIONAL UNION OF NORTH AMERICA
Defendants
REASONS FOR DECISION
FIRESTONE J.
Released: December 18, 2013