Court File and Parties

CITATION: Brown v. Hanley, 2017 ONSC 7400

COURT FILE NO.: CV-17-573692

DATE: 2017-12-11

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

TRACEY BROWN, ANGELA CLARK, DENNIS BOLAND AND CORNELIUS KEIGHER Plaintiffs

– and –

LAWRENCE J. HANLEY on his own behalf and on behalf of all members of THE AMALGAMATED TRANSIT UNION (INTERNATIONAL) Defendant

– and between –

AMALGAMATED TRANSIT UNION (ATU), LOCAL 113 Defendant

COUNSEL:

Sean Dewart and Adrienne Lei, for the Plaintiffs

David Jewitt, for the Defendant, Lawrence Hanley on behalf of the Amalgamated Transit Union (International)

Brian Shell, for the Defendant, Amalgamated Transit Union (ATU) Local 113

Robert Healey, for the Moving Party, The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union

Paul J.J. Cavalluzzo and Elichai Shaffir, for the Moving Parties The International Association of Machinists and Aerospace Workers, Laborers’ International Union of North American and United Food and Commercial Workers

James K. McDonald, for the Moving Party The Canadian Labour Congress

Peter Engelman, for the Moving Party Canadian Union of Public Employees

HEARD: October 31 and November 1, 2017

Reasons for Judgment

Cavanagh J.

Introduction

[1] The plaintiffs are members of the Amalgamated Transit Union (International) ("ATU") and its local affiliate, Local 113. In this action, the plaintiffs challenge certain provisions of the Constitution and General Laws of the ATU ("ATU Constitution"). The plaintiffs claim that the impugned provisions are unconscionable and contrary to public policy and therefore void.

[2] Four motions were brought on behalf of six moving parties, five unions and the Canadian Labour Congress, for leave to intervene in this action pursuant to rule 13 of the Rules of Civil Procedure. These motions were heard on two consecutive days, with two sets of moving parties arguing two motions, and the plaintiffs making responding submissions to the two motions together, on each day. The four motions involve common questions and I have combined my reasons as they relate to each motion in one document.

[3] Four of the moving parties move to intervene as an added party to this action pursuant to rule 13.01 of the Rules of Civil Procedure or, in the alternative, as a friend of the court for the purpose of rendering assistance to the court by way of argument pursuant to rule 13.02. Two of the moving parties move only for leave to intervene as a friend of the court.

[4] The moving parties submit that the plaintiffs’ action raises questions of law that are of broad importance to trade unions across Canada. The four moving parties that seek to be added as parties submit that they have an interest in the subject matter of the action and that they may be adversely affected by a judgment in the action. All of the moving parties submit that they could assist the court by providing a helpful perspective on the questions before the court in the action through submissions.

[5] The moving parties rely on the fact that their constitutions (or, in the case of CLC, the constitutions of its affiliated unions) have similar provisions in common with the impugned provisions in the ATU Constitution. They submit that if a court were to declare that the impugned provisions are void and of no force and effect, they would be adversely affected since the constitutional underpinnings of the legal relationships between these unions and their locals would be called into question, and such a decision may result in individual members commencing similar actions against the unions or, in the case of the CLC, against its affiliated unions.

[6] The defendants have brought a motion under rule 21 of the Rules of Civil Procedure for (a) an order striking out the Statement of Claim for failure to disclose any reasonable cause of action, (b) dismissing the action on the basis that the Court lacks jurisdiction over the subject matter of the action, and (c) dismissing the action on the basis that the plaintiffs lack the capacity or standing to commence the action. The defendants also seek alternative relief on his motion. The rule 21 motion is scheduled to be heard on January 16, 2018.

[7] For the following reasons, each of the four motions for leave to intervene in this action, including in the rule 21 motion, is dismissed.

Factual Background

Claims made in the action

[8] The plaintiffs commenced this action against the Defendant Lawrence J. Hanley on his own behalf and on behalf of the ATU. By Order of Penny J. dated June 1, 2017 and made on consent, Local 113 was granted leave to intervene as an added defendant.

[9] In their Statement of Claim, the plaintiffs plead that certain sections of the ATU Constitution are unconscionable and contrary to public policy and, therefore, void. The plaintiffs plead, among other things, that the ATU Constitution is a contract of adhesion that thwarts democratic expression and inhibits dissent. In support of their claim, the plaintiffs also plead and rely upon section 2(d) of the Canadian Charter of Rights and Freedoms and sections 2 and 5 of Ontario’s Labour Relations Act, 1995, S.O. 1995, c 1, Sch. A.

[10] The provisions of the ATU Constitution that the plaintiffs’ challenge include those that provide that:

a. A Local cannot withdraw or disaffiliate from the ATU if 10 members of the Local object (section 17.1).

b. If a Local does withdraw or disaffiliate from the ATU, the Local’s property is forfeited to the ATU (section 13.4).

c. A Local that wilfully violates the principles of the ATU or acts in antagonism to its welfare may be suspended or placed in trusteeship (section 13.17).

d. Union members, including the plaintiffs, and officials of a Local are subject to internal discipline and union charges for matters such as corrupt practices or financial irregularities, gross disloyalty, or dual unionism, decertification or secession. In most cases, charges against a member or official are brought before the members of the Local at large (sections 22.1 and 22.4).

e. In the case of internal discipline and union charges concerning the possible disaffiliation of a Local from the ATU, the charges must be filed exclusively with the ATU’s General Executive Board (section 22.2).

[11] The plaintiffs seek as a remedies (a) a declaration that the impugned sections of the ATU Constitution are void and of no force or effect insofar as the plaintiffs and other members of Local 113 are concerned; and (b) a permanent and interim injunction restraining the defendant from imposing or purporting to impose any form of discipline, union charges or reprisal of any nature on the plaintiffs in response to their pursuit of this action.

Relief sought by moving parties on these motions

[12] The following moving parties seek the following relief:

a. The Canadian Labour Congress ("CLC") moves for leave to intervene as an added party and, in the alternative, as a friend of the court;

b. The Canadian Union of Public Employees ("CUPE") moves for leave to intervene as a friend of the court;

c. The International Association of Machinists and Aerospace Workers ("IAMAW"), Laborers’ International Union of North America ("LIUNA") and United Food and Commercial Workers ("UFCW") (collectively, the "Coalition") move for leave to intervene as parties and, in the alternative, as friends of the court; and

d. The United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union ("USW") moves for leave to intervene as a friend of the court.

Positions of moving parties on these motions

[13] The positions advanced by all of the moving parties complement each other, but the submissions on behalf of the moving parties on each of the four motions differ in some respects.

Position of the CLC

[14] The CLC provided evidence that:

a. It is the principal centre for the labour movement and the primary organization of trade unions in Canada. The CLC membership is made up of affiliated trade unions which represent approximately 3.3 million members in every sector of the economy and every region of the country, as well as provincial and territorial federations of labour and numerous local labour councils throughout the country.

b. The purpose of the CLC is to advance the economic and social welfare of Canadian workers and to advance the interests of its affiliated trade unions by, among other things, promoting workforce unionization, advocating legislation that will safeguard the rights of workers, promoting the principles of free collective bargaining, and protecting and strengthening Canadian democratic institutions. The CLC is committed to protecting and advancing the rights of all workers in Canada.

c. Many CLC affiliates have provisions in their own constitutions similar to the impugned provisions of the ATU Constitution, which are common terms in many union constitutions.

d. The CLC has a history of making useful contributions to the courts resolving issues of importance to the labour movement. The CLC has been granted leave to intervene by the Supreme Court of Canada 32 times in cases raising important labour law issues. The CLC has also participated as either a party or an intervener in Superior Court proceedings raising important questions of labour law on three occasions.

[15] The CLC submits that it has an interest in the subject matter of the action in part because the plaintiffs, in paragraph 10 of the Statement of Claim, invoke its constitution by stating that the "offending terms" in the ATU Constitution are inconsistent with "the Constitution of the Canada Labour Congress by which the IU [the ATU] and Local 113 are bound".

[16] In their factum, the plaintiffs offered an undertaking "not to ask the court to interpret the CLC’s constitution at any point in this action". At the hearing of this motion, the plaintiffs undertook to amend the Statement of Claim to withdraw the paragraph in question at their earliest opportunity which, because pleadings are not closed, they are able to do without leave of the court or consent of the defendants. I assume that this amendment has been made.

[17] This amendment, in my view, would adequately address the submissions of the CLC in relation to its interest in the action because its own constitution is at issue. For this reason, it is not necessary for me to address in these reasons the submissions of the CLC that relate to the paragraph in the Statement of Claim that the plaintiffs have undertaken to withdraw.

[18] The CLC submits that, if granted intervenor status, it would make submissions on the following areas of public importance:

a. The court’s jurisdiction to entertain actions for bare declarations respecting union constitutions in circumstances where there is no active lis between the parties.

b. That unions, as private entities, are not subject to the Charter and so section 2(d) of the Charter has no application.

c. It is the Ontario Labour Relations Board, and not the court, that has exclusive jurisdiction to determine whether a union constitution violates section 5 of the Labour Relations Act, 1995.

d. With respect to the plaintiffs’ claims that the ATU Constitution is a contract of adhesion and is unconscionable, the CLC would make submissions based on the democratic nature of unions and the process by which their constitutions are created and amended by their members to demonstrate that they are not simple contracts of adhesion.

e. On the issue of whether the impugned provisions of the ATU Constitution are contrary to public policy, the CLC would make submissions on the wide use of such provisions, and the role that they play in maintaining the orderly functioning of unions and union solidarity.

Position of CUPE

[19] CUPE provided evidence that:

a. CUPE is a national trade union which represents over 650,000 members throughout Canada. It is the largest trade union in Canada and has a very diverse membership, representing employees in many different sectors, for both private and public employers and in all three levels of government: municipal, provincial, and federal.

b. CUPE’s core mandate is to advocate on its members behalf to ensure fair pay and benefits and safe workplaces. CUPE and its members are governed by its Constitution, which sets out its objectives, and governs how it operates and its relationship with its Locals. CUPE has approximately 2,132 constituent Locals. Consistent with CUPE’s commitment to union democracy, the CUPE Constitution provides that the Locals have a considerable degree of local autonomy.

c. The impugned provisions of the ATU Constitution are similar or identical to those found in the CUPE Constitution.

d. CUPE currently has a number of Locals under administration and is involved in litigation on these matters.

e. CUPE has extensive experience at all levels of courts as a party in cases involving a wide range of issues of importance to the labour movement. In addition, CUPE and/or its locals also have extensive experience as an intervenor at the Supreme Court of Canada, provincial Courts of Appeal, and at the trial level. CUPE is familiar with the proper role of an intervenor and in providing assistance to the court in this respect.

[20] CUPE submits that if it is granted intervenor status as a friend of the court, its submissions will focus on the legal relationship between parent and local unions as recognized in Canadian law. CUPE will submit, among other things:

a. The impugned provisions, like the similar provisions in the CUPE Constitution, are neither unconscionable nor contrary to public policy.

b. Union constitutions, such as the constitutions of CUPE and of ATU, are not contracts of adhesion. They are democratic documents built on democratic principles, which can be amended by the union membership.

c. Canadian courts have repeatedly recognized the dominant authority of the parent over the local union in disputes over property rights or boundaries of authority. Canadian courts of also recognize that parent unions have a general responsibility to protect the broader interests of the union, and that they have a supervisory interest in the purposes to which a local puts its funds to use, and a right to take steps if that purpose is not legitimate.

d. Canadian courts have imposed a fiduciary duty on local executive to safeguard the assets under the local’s control that are legally the property of the parent.

e. Canadian courts have held that, even where a majority of a local’s membership may have quit a parent union for another, the local may still have status within the union if the governing constitution provides, as it does for both CUPE and ATU.

f. The impugned provisions of the ATU Constitution, and similar provisions in the CUPE Constitution, are consistent with the legal principles set out above.

g. In the circumstances of this case, the court does not have freestanding jurisdiction, absent an underlying cause of action, to declare a provision of a union’s constitution invalid.

h. The impugned provisions are not contrary to s. 5 of the Labour Relations Act, 1995 and, regardless, this is an issue that should be left to the expertise and jurisdiction of the Ontario Labour Relations Board to determine.

i. The Canadian Charter of Rights and Freedoms does not apply to unions, or their constitutions. Even if it did, the impugned provisions do not violate s. 2(d) of the Charter.

Position of IAMAW, LIUNA, and UFCW

[21] The Coalition provided evidence that:

a. IAMAW, LIUNA and UFCW are three major international unions representing over 300,000 Canadian workers primarily in three different sectors of the Canadian economy: aerospace, construction and food/service.

b. The constitutions of each of the members of the Coalition include provisions that are substantially the same as the impugned provisions of the ATU Constitution.

c. The Coalition members have a history of involvement in legal proceedings that raise issues of broad importance to the labour movement, and making useful contributions to the courts in resolving those issues.

[22] The Coalition submits that, if granted intervenor status, it will provide a useful and distinct perspective from the submissions of the parties to the action that will aid the court in coming to an informed decision. The Coalition will focus on the significance to the analysis of the right to freedom of association set out in section 2(d) of the Charter and the related public policy issues raised in the action.

[23] In particular, the Coalition’s submissions will include:

a. The impugned provisions of the ATU Constitution are neither unconscionable nor contrary to public policy.

b. The impugned provisions are not contrary to section 5 of the Labour Relations Act, 1995 and, in any event, the determination of this issue falls within the exclusive jurisdiction of the Ontario Labour Relations Board.

c. Union constitutions are not contracts of adhesion.

d. The Canadian Charter of Rights and Freedoms does not directly apply to a union constitution.

Position of the USW

[24] The USW provided evidence that:

a. The USW is an international union and the largest private sector union in North America. It is comprised of several layers, including an International Executive, regional Districts and Local Unions.

b. The USW is committed to union democracy and local autonomy. Notwithstanding the broad autonomy that USW Local Unions exercise, from time to time the USW has had to place Canadian locals into administration, often for reasons of financial impropriety.

c. The USW has great experience participating in litigation that raises important questions of broad interest to the labour movement in Canada, particularly in matters involving the orderly withdrawal of local unions from international unions.

d. The USW’s interest in this action arises from a number of factors including: the similarity between the constitutions of the USW and the ATW; the similar structure of the USW and the ATU and their relationships with other entities including the CLC; and the USW’s long-standing interest and commitment to core principles of the labour movement, including local autonomy, union democracy and worker solidarity.

e. As an international union, the USW has a different perspective than the parties and other proposed interveners, the CLC and CUPE, and the USW is best positioned to assist the court to grapple with the potential repercussions of this litigation for international unions.

[25] The USW submits that if it were to be granted leave to intervene in this action, it would provide submissions to assist the Court based on its own unique perspective on and interest in the issues in this case. In particular, the USW would make submissions concerning the following:

a. The plaintiffs lack standing to bring this action.

b. Union constitutions are not truly contracts of adhesion at least for unions who, like the USW, are committed to union democracy.

c. The impugned provisions of the ATU Constitution and others like it are not contrary to public policy.

d. The general questions raised in the action related to the Charter, the Labour Relations Act, 1995, the jurisdiction of the Superior Court of Justice, and issues respecting mootness, standing and exhaustion of internal union remedies.

Analysis

[26] The four motions before me raise two issues:

a. Should the CLC and the Coalition unions be granted leave to intervene as added parties to this action pursuant to rule 13.01(1)?

b. If the CLC or the Coalition unions are not granted leave to intervene as added parties, should they, in the alternative, be granted leave to intervene as a friend of the court pursuant to rule 13.02, and should CUPE and the USW be granted such leave to intervene?

I address each issue in turn.

a. Should the CLC and the Coalition unions be granted leave to intervene as added parties to this action pursuant to rule 13.01(1)?

[27] Rule 13.01(1) provides:

13.01 (1) A person who is not a party to a proceeding may move for leave to intervene as an added party if the person claims,

(a) an interest in the subject matter of the proceeding;

(b) that the person may be adversely affected by a judgment in the proceeding; or

(c) that there exists between the person and one or more of the parties to the proceeding a question of law or fact in common with one or more of the questions in issue in the proceeding.

(2) On the motion, the court shall consider whether the intervention will unduly delay or prejudice the determination of the rights of the parties to the proceeding and the court may add the person as a party to the proceeding and may make such order as is just.

[28] The CLC and the Coalition who seek to be added as parties submit that they have an interest in the subject matter of the action and that they may be adversely affected by a judgment in the action.

[29] In support of its position that it has an interest in the subject matter of the action sufficient to justify an order for leave to intervene as a party, the CLC submits:

a. To have a sufficient interest in a proceeding to support a motion for leave to intervene, a proposed intervener must demonstrate an interest either in the particular lis between the parties or with respect to a broader public interest that is raised in the litigation. In either event, the proposed intervener must demonstrate that it has an interest that goes beyond that of the public generally. Because the subject matter of the action raises issues of significant importance to the labour movement in Ontario and Canada, the CLC’s interest in the proceedings is demonstrably greater than that of the general public.

b. As the principal centre for the labour movement and the primary organization of trade unions in Canada, the CLC has an interest in the subject matter of the action with respect to the following issues:

i. Whether union constitutions are truly contracts of adhesion.

ii. Whether the impugned provisions of the ATU Constitution, which are common provisions amongst labour unions in Canada, are unconscionable or contrary to public policy.

iii. Whether individual members of local unions may seek to have the constitutions of parent unions invalidated in the absence of any actual lis.

iv. Whether the Superior Court has freestanding jurisdiction to determine this issue in the absence of any lis between the parties.

v. Whether the types of claims being raised are premature, academic, moot and/or speculative.

vi. Whether the issues raised in the plaintiffs’ action must first be determined by other bodies, such as the Ontario Labour Relations Board, or the appropriate internal bodies within involved trade unions.

vii. Whether the Canadian Charter of Rights and Freedoms applies directly to trade unions and their constitutions.

[30] In support of its position that it has a sufficient interest in the subject of the action to justify an order for leave to intervene as a party, the Coalition submits:

a. To qualify as having an interest in the subject matter of a proceeding, it is not necessary that the prospective intervener have a direct interest in the very matter to be determined. Instead, it is sufficient that the person have an economic interest or a broader interest to appear and make submissions.

b. An interest in a legal question raised or in the practical effects of the judicial determination to be made is also a sufficient interest in the proceeding’s subject matter.

c. The Coalition clearly is interested in the subject matter of the action given the degree of similarity between the impugned provisions and the provisions in its constitutions. If the Court were to declare the impugned provisions invalid and of no force and effect, the Coalition’s constitutions would be significantly impacted.

d. The Coalition has a clear interest in the legal questions of rot application that are raised in the action including:

i. Whether the impugned provisions are unconscionable and contrary to public policy.

ii. Whether the ATU Constitution is a contract of adhesion.

iii. Whether the impugned provisions violate the Labour Relations Act, 1995 or are contrary to section 2 (d) of the Charter.

e. The issues raised in the action go beyond the interests of the immediate parties to the action and engage both the public interest and public policy. The threshold for granting intervener status is lower in such a case than it is for a case that involves only a private interest.

[31] The CLC and the Coalition also submit that they may be adversely affected by a judgment in the action and that, therefore, they qualify for leave to be added as parties to the action.

[32] In this regard, the CLC submits:

a. For a party to meet the requirement of being potentially adversely impacted by a judgement, it must show that it would be affected in a greater way than members of the general public, and that the adverse effect on the proposed intervener need not be direct.

b. Because the impugned provisions are similar or analogous to provisions of many CLC affiliates’ constitutions, if the impugned provisions in the ATU Constitution were to be invalidated, several current CLC affiliates would have a meaningful incentive to disaffiliate.

c. As a matter of fairness, it ought to be permitted to intervene to defend itself from these manifest risks of harm.

[33] In regard to whether the unions in the Coalition may be adversely affected by a judgment in the action, the Coalition submits:

a. It is not necessary for these unions to show that they would definitely be adversely affected, nor is it necessary to show that the unions would be directly adversely affected. Rather, it is only necessary to demonstrate the mere possibility of an adverse effect.

b. Any ruling that invalidates the impugned provisions would adversely affect the members of the Coalition because each of their respective constitutions contain provisions that are virtually identical to the impugned provisions.

c. Any judgment allowing the relief sought by the plaintiffs in the action may result in individual union members commencing similar actions challenging the constitutions of the three unions in the Coalition, which would cause a significant drain on their resources.

[34] The plaintiffs submit that even where a proposed intervenor has an interest in the subject matter of the proceeding or may be adversely affected by a judgment in the proceeding, the court has an overriding judicial discretion to decide whether or not to grant leave to add the intervenor as a party. The plaintiffs submit that rule 13.01 has been interpreted narrowly in conventional, non-charter litigation. They submit that the dispute that is the subject of the action is a private one involving the interpretation of a contract to which the plaintiffs are parties, and that the fact that a decision in one case may later be applied as a precedent in another case between different parties does not create an interest on the part of possible later litigants that is sufficient to justify an order granting leave to intervene in the first case.

[35] With respect to the submissions by certain moving parties that the plaintiffs’ reliance on the Charter makes this case one that raises broader constitutional issues and is not, therefore, purely a private dispute, the plaintiffs submit that they rely on the Charter as pleaded in the Statement of Claim only in support of their position that the common law concerning unconscionability of contracts should be interpreted and developed in a manner that is consistent with the values enshrined by s. 2(d) of the Charter. They cite Grant v. Torstar, 2009 SCC 61 as authority for the appropriateness of this approach to contractual interpretation. I accept the plaintiffs’ submission that this is how they rely upon s. 2(d) of the Charter, and I do not regard the plaintiffs’ pleading as one that raises the constitutional issue of whether the Charter applies to unions or to a union constitution.

[36] The first consideration for me on these motions is whether the action involves a purely private dispute, the outcome of which is unlikely to affect, even indirectly, the interests of the moving parties.

[37] The distinction between Charter cases and conventional litigation in relation to motions for leave to intervene was addressed by McMurtry C.J.O. in Authorson (Guardian of) v. Canada (Attorney General), 2001 CanLII 4382 (ON CA), at paras. 7-9:

In Peel, Chief Justice Dubin noted that in constitutional cases, including cases decided under the Canadian Charter of Rights and Freedoms, there has been a relaxation of the rules heretofore governing the disposition of motions for leave to intervene. This approach ensures that the court will have the benefit of various perspectives of the historical and sociological context, as well as policy and other considerations that bear on the validity of legislation.

In contrast, Ontario courts have interpreted Rule 13 more narrowly in conventional, non-constitutional litigation. (See for example, Peixeiro v. Haberman (1994), 1994 CanLII 7322 (ON SC), 20 O.R. (3d) 666 at 670 (Gen. Div.)). Intervention of third parties into essentially private disputes should be carefully considered as any intervention can add to the cost and complexity of litigation, regardless of an agreement to restrict submissions.

Many appeals will fall somewhere in between the constitutional and strictly private litigation continuum, depending on the nature of the case and the issues to be adjudicated. In my view, the burden on the moving party should be a heavier one in cases that are closer to the "private dispute" end of the spectrum.

[38] The plaintiffs are correct that their action is properly founded in contract, given that each member of a trade union has a contractual relationship with the union itself, based on the constating documents of the union, read in light of the statutory labour relations regime and governing principles of labour law which regulate unions and their activities: Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493 at para. 5.

[39] Any judgment made in the action would legally bind only the plaintiffs and the defendants as contractual parties. The doctrines of issue estoppel or abuse of process would not apply to prevent any of the moving parties from fully litigating issues that may arise in a future action that may be brought by a union member to challenge similar provisions in their constitutions or, in the case of the CLC, the constitutions of its affiliated members.

[40] Nevertheless, the nature of the plaintiffs’ claim is such that it does involve policy considerations that apply to union constitutions that contain provisions that are the same as or similar to those in the ATU Constitution that are impugned. If the plaintiffs were to succeed in their action, the decision could have very significant implications for all unions with similar provisions in their constitutions. In my view, it is not at all speculative for the moving parties to anticipate that they may be confronted with similar suits, if the plaintiffs were to succeed. Although this case involves a private dispute in the sense that I have described, a decision in the plaintiffs’ favour could clearly have significant implications as a precedent in other cases involving other unions and other union members who are not parties to the plaintiffs’ action. As well, in my view, the court called upon to make a decision in the action may need to address a variety of jurisdictional issues as well as the public policy considerations that relate to the processes through which union constitutions are arrived at in Canada.

[41] I therefore accept the submissions of the CLC and the Coalition and, indeed, all of the moving parties, that a decision in favour of the plaintiffs in the action could be a very significant adverse legal precedent in other cases, and one that could lead to other actions by union members against the unions who seek leave to intervene and against affiliates of the CLC.

[42] The next question is whether the interest of the Coalition and the CLC that arises from fact that a decision in the plaintiffs’ favour in the action could be a significant adverse precedent is one that justifies an order for leave to intervene as a party under rule 13.01.

[43] In support of their submission that such an interest is sufficient, the Coalition relies on the decision of Gray J. in United Parcel Service Canada Ltd. v. Ontario (Highway Transport Board) 1989 CarswellOnt 487 (Div. Ct.). In that case, an application was pending whereby the applicant sought a determination of whether a statutorily created board had jurisdiction to order public interest hearings under the governing statute, and whether there was a provincial board authorized to hold such hearings in Ontario. The proposed intervenors were regularly involved in such public interest hearings. Gray J. held that they qualified to be added as intervenors on the basis that they had an economic interest, and that it was not necessary that they be directly adversely affected. In my view, the facts of this case are different from those in the case before me because in United Parcel Service, a judgment in that case could have resulted in the proposed intervenors losing the ability to appear on the hearings in question. A decision in the proceeding would not simply have been an adverse precedent. In this case, a judgment in the action would have no legal effect, other than as a judicial precedent, on the Coalition or the other moving parties.

[44] Other courts on other occasions have addressed motions to intervene where the decision in the proceeding in respect of which intervention is sought would answer a question whose impact is not confined to the parties to the proceeding, but would apply broadly and constitute a precedent for future cases that would likely follow.

[45] One such case is Schofield v. Ontario (Minister of Consumer and Commercial Relations), 1980 CanLII 1726 (ON CA), [1980] O.J. No. 3613 (ON CA). In Schofield, the Court of Appeal heard an application that was brought to permit counsel for two separate clients, who were not parties to the appeal, to intervene to make submissions on the appeal. The issue on the appeal was concerned with the treatment of no-fault benefits paid by the Minister of Consumer and Commercial Relations to a plaintiff injured in an accident involving an uninsured motor vehicle. The applicant submitted that the outcome of the appeal would determine the outcome of one client’s pending case, and that a second client’s litigation had been settled with reference to the outcome of the appeal. On this basis, therefore, the applicant submitted that each of his clients was a person interested in the appeal, and that leave to intervene should be granted.

[46] The applicant asked rhetorically in Schofield, "[h]ow could one have a greater interest?" The Coalition and the CLC on the motions before me ask essentially the same question in relation to their interest in the action.

[47] In Schofield, Wilson J.A., as she then was, disagreed that the applicant’s interest that arose because of the significance of the decision to be made in the case as a precedent justified an order for leave to intervene. Wilson J.A. wrote at para. 7:

Is this correct? Is it appropriate for this Court to determine whether or not the decision in Schofield will govern Client A’s case and then on the basis of an affirmative answer to that question, find that Client A is a person "interested" in this appeal? I do not think so. I think this is "putting the cart before the horse". It is surely for the Court hearing Client A’s case to decide whether or not Schofield is applicable to the facts of that case. This is fundamental, I believe, to the operation of the doctrine of precedent.

Wilson J.A. considered two other cases that addressed this question and concluded at para. 12:

It seems to me that the Bolton and Solosky decisions stand for the proposition that, in order to obtain standing as a person "interested" in litigation between other parties, the applicant must have an interest in the actual lis between those parties. While I would not be prepared to construe Rule 504a so narrowly, it seems to me that the fact that the decision of that lis may be applied subsequently by another Court as a precedent in resolving a lis between other parties is not a sufficient interest to justify a grant of standing to one of those other parties.

Wilson J.A. dismissed the application for leave to intervene.

[48] In M. v. H., 1994 CanLII 7324 (ON SC), [1994] O.J. No. 2000, the moving parties sought leave to intervene in a rule 21 motion in an action between two women who were involved in a same-sex relationship. The issue on the motion involved the definition of "spouse" under the Family Law Act. The proposed intervenors submitted that each was a party in a factually similar proceeding, and that each would be adversely affected by the decision made at the hearing. The motions were argued under both rules 13.01 and 13.02.

[49] In M. v. H., Epstein J., as she then was, addressed the difference between rule 13.01 and 13.02 in relation to the basis upon which the court will exercise its discretion and allow intervention. Epstein J. wrote that rule 13 as a whole, and particularly rule 13.01, has been interpreted narrowly in conventional, non-Charter litigation, for two reasons. The first reason that Epstein J. identified is that the admission of parties or non-party participants could present difficulties for the court in its attempt to address issues in the case clearly and fairly. Epstein J., when she explained the second reason, addressed the same argument that is raised by the moving parties on these motions, that the applicants should be granted leave to intervene because they will be significantly affected by the precedent that an adverse decision in the proceeding could represent.

[50] Epstein J. rejected that argument and wrote, at para. 33:

The second reason, in my opinion, that the discretion to add parties has been exercised cautiously has to do with the very basis upon which the common law is built. It is built upon an incremental system of developing the law. An issue is determined between parties and then, subsequently, an individual who has a case with the same issue pending asks the court hearing his or her matter to decide whether or not the precedent set is applicable. If the court had previously interpreted or were to interpret Rule 13 as giving intervention rights to individuals who might be affected, adversely or otherwise, solely by the legal precedent which the first case creates, then, as Ms. Eberts so aptly put it, there would be no principled way of excluding the second or the 500th case. The common law system would implode upon itself.

[51] In both Schofield and M. v. H., the decision to be made in the proceeding in which intervention was sought was one that involved policy considerations and would have broad application as a precedent in other cases, a precedent that would affect the proposed intervenors who were then involved in litigation that involved the same questions. In Schofield, the decision would have been made at the appellate level and, therefore, the precedential value of this decision would have been greater than that of a decision made by a court of first instance. Nevertheless, the proposed intervenors were denied leave to intervene because, in those cases, the nature of the interest, that of a person who would be affected by the judicial precedent from a decision, was not one that justified an order for leave to intervene.

[52] In Peixeiro v. Haberman, 1994 CanLII 7322 (ON SC), [1994] O.J. No. 2459, MacPherson J., as he then was, addressed whether the sole insurer of lawyers in Ontario should be granted leave to intervene in a private lawsuit because a judge’s decision on one aspect of that lawsuit might have an impact on the legal liability of lawyers and the financial exposure of the insurance company in the future. MacPherson J. considered the reasoning of Wilson J.A. in Schofield and concluded that similar reasoning applied in the litigation before him. MacPherson J. concluded that any effect of a decision in the case before him on a lawyer involved in the litigation or the insurer of lawyers was too speculative and remote to constitute a sufficient interest to justify granting leave to the proposed intervenor to intervene.

[53] Similarly, in Lawyers Professional Indemnity Co. v. Geto Investments Ltd., [2002] O.J. No. 378 the proposed intervenor argued that he had an interest in the subject matter of the proceeding and may be adversely affected by a judgment in the proceeding. Nordheimer J., as he then was, rejected the submission that a judgment in the action could affect the proposed intervenor and that intervention was therefore justified. He wrote, at para. 22:

Mr. Roberts also asserts that he may be adversely affected by a judgment in this proceeding because any finding by the trial judge of credibility regarding Mr. Tsoukalis might adversely impact on Mr. Roberts in subsequent proceedings in which he may be involved whether criminal or civil. Again, that is not the type of adverse impact to which the rule is directed. Any such finding by the trial judge in this action as to the credibility of Mr. Tsoukalis would not be binding on a judge in a separate proceeding involving different parties. It would also not be determinative of the issues raised in that separate proceeding. I note that a similar assertion was rejected by the Alberta Court of Queen’s Bench in PanCanadian Petroleum Ltd. v. Husky Oil Operations Ltd., [1994] A. J. No. 207.

[54] I agree with the reasoning in Schofield and M. v. H, as it relates to the motions by the CLC and the Coalition for leave to intervene as parties pursuant to rule 13.01. The fact that as unions or, in the case of CLC, as the primary organization of trade unions in Canada, these moving parties may be adversely affected by the precedent set by a decision in favour of the plaintiffs does not, in my view, justify an order for leave to intervene as parties.

[55] The unions in the Coalition are in no different position than any other union that has provisions in its constitution that are the same in material respects as the impugned provisions in the ATU Constitution, including those that are affiliated members of the CLC. All such unions could be affected by an adverse precedent if the plaintiffs’ claims were to succeed. If the interest asserted by these moving parties is sufficient to warrant leave to intervene as a party, there would be no principled basis to deny a right to intervene by any union with the same provisions in its constitution as the provisions in the ATU Constitution that the plaintiffs challenge in their action.

[56] For these reasons, I decline to grant leave to the CLC and to the Coalition unions to intervene in the action, including the rule 21 motion, as added parties under rule 13.01 of the Rules of Civil Procedure.

b. If the CLC or the Coalition unions are not granted leave to intervene as added parties, should they, in the alternative, be granted leave to intervene as a friend of the court pursuant to rule 13.02, and should CUPE and the USW be granted such leave to intervene?

[57] The CLC and the Coalition unions move in the alternative, and CUPE and the USW move, for an order pursuant to rule 13.02 granting leave to each moving party to intervene as a friend of the court.

[58] Rule 13.02 provides:

13.02 Any person may, with leave of a judge or at the invitation of the presiding judge or master, and without becoming a party to the proceeding, intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument.

[59] The CLC submits that the issues raised in the action are important ones for trade unions across Canada and involve novel questions with broad consequences to a significant segment of Canadian society. The other moving parties make similar submissions. Each moving party has had significant experience in making useful contributions to courts in other proceedings in cases involving issues of importance to the labour movement. Each moving party submits that it will be able to assist the court making submissions from its own perspective on the issues before the court in this action.

[60] The legal principles that apply to a motion under rule 13.02 for leave to intervene as a friend of the court have been described in a number of cases.

[61] In Peel (Regional Municipality) v. Great Atlantic & Pacific Co. of Canada Ltd. (1990), 1990 CanLII 6886 (ON CA), 74 O.R. (2d) 164 (C.A.), in a decision on a motion for leave to intervene as a friend of the court, Dubin C.J.O. wrote at p. 167 that on such an application, "the matters to be considered are the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties".

[62] In Childs v. Desormeaux, 2003 CanLII 47870 (Ont. C.A.), McMurtry C.J.O. addressed the fact that although the dispute on the appeal before the court was between individuals and in that regard private in nature, the issue to be decided (whether the law should recognize that social hosts owe an actionable duty of care to members of the public) was one that transcended the dispute between the immediate parties to the litigation. In Childs, McMurtry C.J.O. explained how the role of amicus curiae has evolved over time:

[13] Today most intervenors who intervene as a friend of the court articulate a position that may generally be aligned with one or another side of the argument. The submission of the respondents that a "friend of the court" must be neutral, abstract and objective refers to a restricted notion of the amicus curiae that has long been rejected. In the United States, the author Samuel Krislov, in "The Amicus Brief: From Friendship to Advocacy" (1963) 72 Yale L.J. 694 at p. 704, stated:

The Supreme Court of the United States makes no pretense of such disinterestedness on the part of "its friends". The amicus is treated as a potential litigant in future cases, as an ally of one of the parties, or as the representative of an interest not otherwise represented ... thus the institution of the amicus curiae brief has moved from neutrality to partisanship, from friendship to advocacy.

[14] While the law of Ontario has not, perhaps, expanded the role of the friend of the court this far, David Scriven and Paul Muldoon, wrote as long ago as 1985, in their article "Intervention as a Friend of the Court: Rule 13 of the Ontario Rules of Civil Procedure" (1986) 6 Advocates’ Q. 448, at pp. 456-57:

While the old case law implicitly assumes that a friend of the court cannot provide "assistance" when it intends to advocate its point of view, the language of Rule 13.02 appears to deny this traditional argument. The rule states that any person may intervene as a friend of the court for the purpose of rendering assistance to the court by way of argument. The term "argument" literally means to "persuade by giving reasons" and thus directly imports the notion of advocacy in such applications.

Although McMurtry C.J.O., accepted that the applicant for intervenor status was generally aligned with the plaintiff, he was satisfied that the proposed intervenor could make a useful contribution to the argument of the issues before the court, and that the intervention would not cause injustice to the defendants. See also Bhajan v. Ontario (Children’s Lawyer), 2010 ONCA 560 at para. 7.

[63] In Schofield, Wilson J.A. wrote at para. 19 that "one thing that does seem to emerge from them [other cases involving motions for leave to intervene] is that a person should not be added as a party if his interest is already represented". Wilson J.A. considered that the same principle should be applied to the motion brought for leave to make submissions to the Court on the appeal. Wilson J.A. denied the request for leave to make submissions on the ground that the request was not made by a private or public interest group which might bring a different perspective to the issue before the Court, and where the interest of the party seeking to make submissions was identical to the interest of the appellant.

[64] In Lafarge Canada Inc. v. Ontario Environmental Review Tribunal 2008, CanLII 6870 (Div. Ct.), Himel J. wrote at para. 12 that "[w]here there is no evidence or argument that is substantially different from the parties, the court may deny the motion to intervene as a friend of the court: see Stadium Corp. of Ontario Ltd. v. Toronto (City), supra".

[65] In Jones v. Tsige, 2011 CanLII 99894 (ON CA), [2011] O.J. No. 4276 (C.A.) motions were brought for leave to intervene on an appeal as friends of the court. Watt J.A. heard the motions and noted that the proposed intervenors would make submissions that align with those advanced by a party. He wrote at para. 28-29:

It should scarcely surprise, indeed it would seem almost the very essence of intervention, that the position to be advanced by a proposed intervener would tend to support that of one of the original litigants and oppose that of the other. While we cannot ignore the potential of injustice to an original litigant by an accumulation of interveners, neither should we be quick to dispatch those with some value to add for this reason alone. Assistance from interveners can come in assorted shades and from different perspectives. The likelihood of useful contribution should exert the greater influence [citations omitted].

In the end, a proposed intervener must have more to offer than mere repetition of the position advanced by a party. The "me too" intervention provides no assistance [citations omitted].

[66] Having regard to the principles in the cases I have cited, I must decide whether the moving parties, or any of them, would likely make a useful contribution by way of argument from a perspective that differs from that of the parties, that is more than mere repetition of the position advanced by a party, and that would assist the court in the action.

[67] I first observe that the ATU is a large, international union which represents some 190,000 members in 240 locals across Canada and the United States. There is no suggestion by the moving parties that the ATU lacks sufficient resources in order to fully and vigorously defend its own interests in the action, or that it is unable to do so for any other reason.

[68] In the evidence filed on behalf of the five moving parties that are unions to show that they have an interest in the action, each relies heavily on the fact that there is a high degree of similarity between the impugned provisions in the ATU Constitution and provisions in their constitutions. It is for this reason that they could be affected by the judicial precedent of a decision in favour of the plaintiffs. The CLC also provided evidence that many CLC affiliates have provisions that are similar to the impugned provisions in the ATU Constitution, and that these are common provisions in many union constitutions. I do not regard the fact that CUPE is not an international union, or that the CLC is not a union but an organization of unions, as a circumstance that materially differentiates their respective perspectives from that of the ATU in relation to the issues in the action.

[69] When I consider the submissions that each moving parties proposes to make if granted leave to intervene as a friend of the court, I note that these intended submissions are substantively very similar and, in respect of many proposed submissions, the same. These intended submissions essentially mirror the grounds upon which the ATU relies in the Notice of Motion filed on its rule 21 motion.

[70] I do not question that the moving parties have significant experience in providing helpful assistance to courts in many cases that involved important labour issues in a variety of contexts. I do not, however, agree that in this case any of the moving parties is in a position to provide assistance to the court from a materially different perspective than that of the ATU. To the contrary, each moving party proposes to make submissions from the perspective of a union, or an organization representing unions, which would be affected by a decision in the plaintiffs’ favour in the action, if it were to be applied as a precedent in a future case, in the same way as the ATU would be affected.

[71] I regard the motions by the moving parties for leave to intervene as a friend of the court for the purpose of rendering assistance by way of argument as requests for "me too" interventions that, if allowed, would result in the same interest being represented by several sets of counsel. In my view, this would not be helpful to the court, and it would be unfair to the plaintiffs.

[72] For these reasons, I decline to grant leave to the moving parties to intervene in the action pursuant to rule 13.01 or rule 13.02 of the Rules of Civil Procedure, including in the rule 21 motion brought by the defendants.

Disposition

[73] Each of the four motions is dismissed.

[74] If the parties are unable to agree on costs, the plaintiffs may make written submissions within 30 days. The moving parties on each motion may make responding submissions within 15 days of receipt of the plaintiffs’ submissions. The plaintiffs, if so advised, may make brief reply submissions within 5 days thereafter.

Cavanagh J.

Released: December 11, 2017