2016 ONSC 5129
COURT FILE NO.: 13-CV-18905
DATE: 20160818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Lawrence
Plaintiff
– and –
International Brotherhood of Electrical Workers (IBEW) Local 773, Karl Lovett, Ken Gelinas, Jeff McPherson, Mark Stobbs, Sean Bristow, Robert Duby, Norm Ball, and Fred Bloomfield
Defendants
Robert Reynolds, for the Plaintiff
Dan J. Shields, for the Defendants
HEARD: August 2, 2016
Hebner J.:
[1] This motion was brought by the plaintiff for a representation order under rule 12.07 of the Rules of Civil Procedure, R.R.O 1990, Reg. 194, granting leave to the plaintiff to amend the amended statement of claim to add the individual defendants as representatives of all members of the defendant, International Brotherhood of Electrical Workers Local 773.
Background Facts
[2] This action arises out of an alleged wrongful dismissal of the plaintiff by her previous employer, International Brotherhood of Electrical Workers Local 773 (“IBEW”).
[3] The plaintiff was hired by IBEW in September 1994. There was no written contract of employment. The contract was an oral contract of indefinite duration. Initially, the plaintiff was the assistant benefits coordinator. In May 2006, she was promoted to the position of office manager. She continued in that position until her termination on October 29, 2012.
[4] The plaintiff commenced this action by statement of claim issued January 21, 2013. The only named defendant was IBEW. The defendant delivered a statement of defence on February 21, 2013. On February 28, 2013, the plaintiff delivered a reply to the statement of defence. On May 16, 2013, the statement of claim was amended to add all of the individual defendants, who were the members of the Board of Directors at the time of the plaintiff’s dismissal.
[5] The action proceeded through the usual steps. Examinations for discovery were held in November 2013. The defendant, IBEW, produced Karl Lovett as the representative. Undertakings were fulfilled. On March 27, 2014, a mediation took place. A trial record was prepared and served on July 21, 2014. A date of February 25, 2015, was arranged for the pre-trial. The trial is now scheduled to proceed the week of September 25, 2016.
[6] On November 28, 2014, just after the two-year limitation period had expired, counsel for the plaintiff received a letter from counsel for the defendants indicating for the first time that his clients intended to bring a motion for summary judgment to dismiss the action on the basis that the plaintiff is not able to sue a trade union and there is no basis in law to hold the individual defendants jointly and severally liable based on their positions as executive board members of the union.
[7] The defendants’ motion was heard on June 22, 2015, before Campbell J. The motion proceeded as a Rule 21 motion as opposed to a summary judgment motion. The defendants’ submission was that the statement of claim ought to be struck as disclosing no reasonable cause of action. Campbell J. dismissed the motion on the basis that “[w]hether the defendant has the legal capacity to be sued is unsettled in the jurisprudence. At this point in the litigation, this action should be allowed to continue to trial.” The defendants’ motion for leave to appeal was dismissed by Howard J.
[8] On the motion before Campbell J., the plaintiff, in her factum, suggested “if the court deems it appropriate to grant a further order with regard to amendment of the pleadings.” There was no cross-motion for such relief before Campbell J. He concluded that “[i]n the context of the defendants’ motion, I conclude an amendment of the plaintiff’s pleadings should not be allowed.”
The Position of the Parties
[9] The plaintiff submits that the motion is an attempt to correct an error in the title of proceedings under rule 5.04 (2) which reads as follows:
At any stage of a proceeding the court may by order add, delete or substitute a party or correct the name of a party incorrectly named, on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[10] The plaintiff points out that there will be no new pleadings required. There will be no new lawyers hired. Additional affidavits of documents or examinations for discovery will not be required. A new mediation will not be required. The trial date will not have to be moved. There will be no prejudice as the union and all of its board members are already parties. The only difference will be that the individual defendants would be named both in their capacity as board members of IBEW and as representatives of IBEW.
[11] The plaintiff also relies on rules 2.01(1) and 2.03 which read as follows:
2.01 (1) A failure to comply with these rules is an irregularity and does not render a proceeding or a step, document or order in a proceeding a nullity, and the court,
(a) may grant all necessary amendments or other relief, on such terms as are just, to secure the just determination of the real matters in dispute; or
(b) only where and as necessary in the interest of justice, may set aside the proceeding or a step, document or order in the proceeding in whole or in part.
2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time.
[12] The defendants take the position that, if the order is granted, parties are being added to the action. The parties added are all of the members of the union. The defendants take the position that additional defendants cannot be added to the claim after the limitation period. The defendants rely on the Divisional Court decision in Pal v. Powell, 2009 CanLII 6630 (ON SCDC).
[13] The decision in this case, therefore, turns on the characterization of the motion itself. Is the motion an attempt to correct an error in the title of proceedings under rule 5.04 or is it an attempt to add additional party defendants after the limitation period? For the reasons that follow, I find the motion is to correct an error in the title of proceedings under rule 5.04 and I grant the order requested.
Analysis
[14] In the case of Pal, the plaintiff’s motor vehicle was blocked by seven individuals who were said to be part of a picket line at an adjoining building which was the subject of a strike by the union. When the plaintiff got out of his car to speak to the individuals blocking his way, he was struck on the head with a metal pipe and beaten senseless. He was ultimately rescued and taken away by ambulance. In 2007, the plaintiff sued the officers and administrative officials of the union in their personal capacity. He did not sue the union. Following the expiration of the two-year limitation period, the plaintiff brought a motion for a representation order. The motions judge granted the motion. The Divisional Court allowed the defendants’ appeal. At para. 14, the Divisional Court said “[t]he effect of a Representation Order, as has been already suggested, is really to add the Union because all the members become subject to the results of the action.”
[15] I find that the decision in Pal can be distinguished from the decision in this case on the facts. In this case, the plaintiff added the union as a party defendant from the outset. She is not seeking to add the union as a party defendant following the limitation period, as the union is already a party defendant.
[16] I reject the argument of the defendants that the result of a representation order would be to add all of the individual union members as parties to the action. It seems to me that the union is, by definition, the sum of its members. It is an organization of workers formed to negotiate with employers. As the union is already a party defendant, it seems to me that all of its members are already, notionally, party defendants. Changing the title of proceedings to reflect a representation order would not change the fact that the union (and therefore its members) has been a party to this action from the outset.
[17] In the case of Casselman v. Casselman, 2014 ONSC 1267, 119 O.R. (3d) 631, Tucker J dealt with a motion requesting an order under rule 5.04 (2). In that case, the plaintiff, injured in a motor vehicle accident caused by an unidentified vehicle, sued her own insurer, Aviva Canada Inc. The vehicle the plaintiff was in at the time was owned and operated by her son, who was insured by Economical Mutual Insurance Company of Canada. Economical was put on notice of the claim shortly after the accident occurred. After the limitation period expired, the plaintiff brought a motion asking that Economical be added as a defendant under rule 5.04. At paras. 8 and 9, Tucker J said:
Here, although the wording of the claim may not have referred to the statutory basis for the claim against Economical, it clearly asserts a claim for uninsured/unidentified motorist coverage. In addition, based upon the evidence filed in support of the motion, the intention had always been to name Economical and, again, on such basis is distinguishable from the John Doe case.
I do not see any prejudice to the defendant by including it in the action notwithstanding the passage of the limitation period, given that they were put on notice of the claim and received relevant information concerning it. Discoveries have not yet been held. The only issue in my mind is whether Economical should be added to Aviva or substituted for it.
[18] The same can be said of this case. The union, as they were a party from the outset, had notice of the claim and received relevant information concerning it. They have participated at discoveries and mediation. There is no prejudice to making the representation order, notwithstanding the passage of the limitation period
[19] I have also taken into account rule 1.04 (1) of the Rules of Civil Procedure, which reads as follows:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[20] In this case, the defendants should have brought their Rule 21 motion at the pleading stage of the action. In his decision, Campbell J. said:
I accept the plaintiff’s position that a motion under rule 21.01(1)(b) ought to be brought at the pleading stage of an action. The defendants have delayed bringing this motion until the figurative eve of trial. There has been no compelling explanation advanced as to why the motion was delayed.
[21] I find that the defendants delayed bringing their motion under Rule 21 until the limitation period had expired. In the meantime, they cooperated in the action. They participated in examinations for discovery and the exchange of relevant documents. They participated in a mediation. The timing of the motion was tactical on the part of the defendants. The motion was an attempt to avoid a determination of the plaintiff’s claim on its merits. If the defendants had brought their motion under Rule 21 at the pleading stage, which would have been well within the limitation period, I have no doubt that the plaintiff would have brought this motion for a representation order. The limitation period would not have been an issue. Under those circumstances, I find that the use of rule 5.04 to correct the title of proceedings so as to ensure that the plaintiff’s claim is dealt with on its merits is entirely appropriate.
Disposition
[22] For the foregoing reasons, I hereby grant a representation order under rule 12.07, granting leave to the plaintiff to amend the amended statement of claim to add the individual defendants as representatives of all members of the defendant, International Brotherhood of Electrical Workers Local 773.
[23] If the parties are unable to agree on costs, they may make brief written submissions, to include a costs outline, as follows:
The plaintiff may provide written submissions within 20 days;
The defendants may provide written submissions within 30 days.
Original signed by Justice Pamela L. Hebner
Pamela L. Hebner
Justice
Released: August 18, 2016
2016 ONSC 5129
COURT FILE NO.: 13-CV-18905
DATE: 20160818
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Pamela Lawrence
Plaintiff
– and –
International Brotherhood of Electrical Workers (IBEW) Local 773, Karl Lovett, Ken Gelinas, Jeff McPherson, Mark Stobbs, Sean Bristow, Robert Duby, Norm Ball, and Fred Bloomfield
Defendants
Ruling on motion
Hebner J.
Released: August 18, 2016