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CIVIL PROCEDURE - Parties - Capacity to sue or be sued - Party types - Trade unions

Tuesday, May 02, 2017 @ 6:52 AM  


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Appeal by the defendants, the IBEW Local 773 and its directors, from a motion judge's refusal to dismiss the action by the plaintiff, Lawrence, and the granting of a Rule 12.07 representation order in her favour. The plaintiff was terminated from her employment with the Union. She brought an action for wrongful dismissal damages naming the Union as defendant. She subsequently obtained a consent order adding the directors as defendants and amended her claim to plead joint and several liability. The Union pled that as a trade union, it could not be named as a party to the action based on s. 3(2) of the Rights of Labour Act. The plaintiff failed to amend her claim within the governing limitation period to obtain a Rule 12.07 representation order providing that the individual director defendants were representatives of the members of the Union. The defendants moved for dismissal of the action on the basis the Union was not an entity capable of being sued. The motion judge found that the issue remained unsettled in the jurisprudence and that the matter should proceed to trial. The motion judge granted the plaintiff's request for a representation order on the basis of misnomer. The defendants appealed.

HELD: Appeal dismissed. It was well-established that the Rights of Labour Act precluded naming a trade union as a party to an action. The proper procedure required obtaining a Rule 12.07 representation order authorizing one or more members of the Union to defend a proceeding on behalf of all other members. Here, the defendants were unable to rely on the concept of nullity to resist the order granted to the plaintiff. The defendants did not treat the claim as a nullity, having filed a defence and fully participated throughout the discovery and pre-trial process. Given the historic context of s. 3(2) of the Rights of Labour Act, and the modern principles of civil procedure, it was more appropriate to view the naming of the Union as a defendant as an irregularity or misnomer rather than a nullity. The plaintiff knew from the outset to name her employer as a defendant. Her claim was brought well before the expiration of the applicable limitation period. The action was ready for trial with no prejudice accruing to the defendants. On that basis, the plaintiff's request for a representation order could be properly characterized as a request to correct the name of a party incorrectly named, as per Rule 5.04(2). The motion judge did not err in making the representation order.

Lawrence v. International Brotherhood of Electrical Workers (IBEW) Local 773, [2017] O.J. No. 1944, Ontario Court of Appeal, R.J. Sharpe, P.D. Lauwers and C.W. Hourigan JJ.A., April 20, 2017. Digest No. TLD-May12017004