International Brotherhood of Electrical Workers (IBEW) Local 773, et al. v. Pamela Lawrence
(Ontario) (Civil) (By Leave)
Civil procedure - Parties - Civil procedure - Parties - Capacity to be sued - Trade unions - Union and directors named as defendants in wrongful dismissal action - After discovery, pre-trial conference and expiry of limitation period, Union moved to dismiss action based on incapacity to be sued - Motion dismissed - Representation order issued - Is the effect of the r. 12.07 Order to add a party after the expiry of the limitation period, or can it be re-characterized as an order under r. 5.04 correcting a misnomer, notwithstanding the Rights of Labour Act?.
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Having been terminated from her employment with the International Brotherhood of Electrical Workers, Local 773, Ms. Lawrence sought damages for wrongful dismissal, naming Local 773 as a defendant. Although Local 773 pleaded that, as a trade union, it could not be named as a party based on Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3(2), Ms. Lawrence obtained a consent order adding several directors of Local 773 as defendants and amended the statement of claim to plead that they were jointly and severally liable for her claim rather than obtaining a representation order under Rule 12.07 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The action proceeded normally. Once the limitation period expired, Local 773 and the individual defendants moved under Rule 21 for an order dismissing the action on the ground that Local 773 was not a suable entity and the individual defendants were not personally answerable to the claim.
The motions judge refused to strike the claim as disclosing no reasonable cause of action because the motion had not been brought in a timely manner. Leave to appeal that decision was dismissed. Ms. Lawrence then moved for and was granted a representation order under Rule 12.07 and leave to amend her statement of claim to add the individual applicants as representatives of all members of Local 773. A majority of the Court of Appeal dismissed both Ms. Lawrence’s motion to quash the appeal for want of jurisdiction and the applicants’ appeal.
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