



COURT OF APPEAL FOR ONTARIO

CITATION: United Food and Commercial Workers Canada, Local
    175, Region 6 v. Quality Meat Packers Holdings Limited, 2018 ONCA 671

DATE: 20180727

DOCKET: C63620 & C63635

LaForme, Rouleau and van Rensburg JJ.A.

C63620

BETWEEN

Sam Caetano,

as representative of the
    members of the United Food and Commercial Workers Canada, Local 175, Region 6
    who were employed by the Quality Meat Packers Limited, Toronto Abattoirs
    Limited, Great Lakes Specialty Meats of Canada and/or any of the Defendants in
    this Action in 2014

Plaintiffs (Appellants)

and

Quality Meat Packers
    Holdings Limited
,
    Quality Meat Packers Limited, Toronto Abattoirs Limited, Great Lakes Specialty
    Meats of Canada Inc., 2268204 Ontario Inc.,
Two Tecumseth
    Street Inc., Tasty Chip (2008) Inc., BNJ Cold Storage Inc., Franklyn Bernard
    Company Limited, 1581337 Ontario Inc., David Schwartz
, Franklyn
    Schwartz,
Brian Schwartz and Sheldon Garfinkle

Defendants (
Respondents
)

C63635

BETWEEN

Debbie Abreu, in their
    personal capacity and as the proposed representative of all non-union
    terminated employees and retirees of Quality Meat Packers Limited under Rule 10
    of the
Rules of Civil Procedure
, Alex
    Abreu, in their personal capacity and as the proposed representative of all
    non-union terminated employees of Toronto Abattoirs Limited and Great Lakes Specialty
    Meats of Canada Inc., under Rule 10 of the
Rules of Civil Procedure

Plaintiffs (Respondents)

and

Quality Meat Packers
    Holdings Limited
,
    Quality Meat Packers Limited (in bankruptcy), Toronto Abattoirs Limited (in
    bankruptcy), Great Lakes Specialty Meats of Canada Inc. (in bankruptcy),
    2268204 Ontario Inc. (under receivership),
Two Tecumseth
    Street Inc., Tasty Chip (2008) Inc., BNJ Cold Storage Inc., Franklyn Bernard
    Company Limited, 1581337 Ontario Inc., David Schwartz
, Franklyn
    Schwartz, and
Brian Schwartz

Defendants (
Appellants
)

Andrew J. Hatnay, Demetrios Yiokaris and Amy Tang, for
    the appellants (C63620) and for the respondents (C63635)

Jeffrey E. Goodman, Frank Cesario and Dianne Jozefacki, for
    the appellants (C63635) and for the respondents (C63620), Quality Meat Packers
    Holdings Limited, BNJ Cold Storage Inc., Two Tecumseh Street Inc., Tasty Chip
    (2008) Inc. and David Schwartz

Matthew P. Gottlieb and Brad Vermeersch, for the appellants
    (C63620) and for the respondents (C63635), Brian Schwartz and Franklyn Bernard
    Company Limited

Kyla Mahar, for the respondent, 1581337 Ontario Inc.

Heard: January 31, 2018

On appeal from the orders of Justice Edward Belobaba of
    the Superior Court of Justice, dated March 17, 2017, with reasons reported at
    2017 ONSC 1199.

H.S. LaForme J.A.:

OVERVIEW

[1]

A family-owned meat processing business went bankrupt in 2014 and some
    800 employees were terminated without notice or severance. Two separate actions
    were commenced on behalf of the terminated employees. The first was brought by
    Sam Caetano as the representative of the 700 or so unionized employees (the
    Caetano action). The second was brought by Debbie Abreu and Alex Abreu as the
    proposed representatives of the 100 or so non-unionized employees (the Abreu
    action).

[2]

The defendants in both actions are: (i) the bankrupt companies; (ii) the
    other purportedly related family-owned companies  Quality Meat Packers
    Holdings Ltd., Two Tecumseth Street Inc., Tasty Chip (2008) Inc., BNJ Cold
    Storage Inc., Franklyn Bernard Company Limited, 1581337 Ontario Inc.; and (iii)
    two individuals  David Schwartz and Brian Schwartz. Together, they are alleged
    to have been the common employer of the terminated employees and thus jointly
    and severally liable for the unpaid severance.

[3]

The defendants in both the Abreu and Caetano actions have not filed a
    statement of defence. Instead, the non-bankrupt defendants brought two motions
    under Rule 21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194
:

1.       In the Caetano action, they
    requested under Rule 21.01(3)(a) that the Caetano action be stayed on the basis
    of jurisdiction (the jurisdiction motion); and

2.       Under Rules 21.01(1)(a) and
    (b) they requested that the representative elements of the Caetano and Abreu actions
    be struck because the claims of the individuals sought to be represented are
    time-barred and thus fail to disclose a reasonable cause of action (the limitations
    motion).

[4]

On the jurisdiction motion, the motion judge stayed the Caetano action.
    On the limitations motion, he agreed that the representative aspect of the
    Caetano action was statute-barred. In contrast, he concluded it was not plain
    and obvious that the representative aspect of the Abreu action was
    statute-barred.

[5]

In the Caetano action, Caetano appeals, whereas in the Abreu action it
    is the defendants who appeal. In my discussion below, in both appeals I will
    refer to the respective parties as Caetano, the Abreus and the Defendants.

[6]

For the reasons that follow, I would dismiss the Caetano appeal and
    allow the Abreu appeal.

DISCUSSION

(1)

Caetano Appeal  Jurisdiction

(a)

Motion Judges Reasons

[7]

The issue on this motion was whether the Ontario Labour Relations Board
    (OLRB) had exclusive jurisdiction to determine the claims asserted in the Caetano
    action.

[8]

The motion judge concluded that the court had no jurisdiction to decide
    the matter since the essence of the claim - the wrongful dismissal of unionized
    employees - is subject to the exclusive jurisdiction of the provincial labour
    relations regime. The collective agreements between the former unionized employees
    that Caetano purports to represent and the bankrupt employers comprehensively
    dealt with the terms of employment. As a matter of law, the collective
    agreements incorporated provincial employment standards law. The collective
    agreements also set out a detailed dispute resolution procedure that must be
    followed to resolve grievances arising out of the collective agreements. He
    found, at para. 21:

The core dispute in Caetanos claim is wrongful dismissal and
    unpaid severance. The claim is directly connected with their employment at [the
    bankrupt employers], the terms and conditions of which are governed by
    comprehensive collective agreements. Since the essential character of the
    dispute arises out of the interpretation, application, administration or
    violation of the collective agreements, the dispute falls within the exclusive
    jurisdiction of an arbitrator and the OLRB.

Accordingly, the motion judge stayed the Caetano
    action.

(b)

Submissions

[9]

Caetano argues that the motion judge erred in concluding that he did not
    have jurisdiction. The Supreme Court in
Weber v. Ontario Hydro
, [1995]
    2 S.C.R. 929 clarified the respective jurisdiction of courts, labour
    arbitrators, and labour tribunals when dealing with disputes arising from a
    collective agreement. To determine jurisdiction in this context the court must
    consider whether the dispute arises from the interpretation, application,
    administration, or violation of the collective agreement. Caetano submits the
    motion judge erred in applying these factors.

[10]

The
    collective agreement, Caetano points out, is silent on severance pay. The
    employees entitlement to severance is based in the
Employment Standards
    Act, 2000,
S.O. 2000, c. 41 (the ESA). Further, Caetano and the other
    unionized employees seek payment of severance pay from third parties to the
    collective agreement. Therefore, Caetano submits that the essential character
    of the dispute has nothing to do with the collective agreement  this action is
    essentially an enforcement action for the severance owing.

[11]

Caetano
    relies on jurisprudence such as
Ritchie v. Canadian Airlines International
    Ltd.
(2001)
, 13 C.P.C.
    (5th) 368, where the Superior Court applied the test in
Weber
and
    declined to dismiss an action for want of jurisdiction. In
Ritchie
,
    union members, as a class, claimed unpaid severance pay from companies other
    than their bankrupt employer. As in this case, the defendant in
Ritchie
was not a party to the collective agreement. Caetano argues that since the
    court in
Ritchie
had jurisdiction over the subject matter of the
    dispute, the court has jurisdiction in this case.

[12]

Caetano
    also submits that this case is similar to
Logue Mechanical Services Ltd. v.
    UA, Local 787,
[2016] O.L.R.B. Rep. July/August 691, in which the OLRB
    noted that it does not have jurisdiction over enforcement proceedings against
    related employers when the original employer is bankrupt. Caetano submits that
    the jurisdiction of the court is clearer in the case at bar for a number of
    reasons: the businesses are shut down, the property has been sold, there are no
    employees, and there is no bargaining unit.

(c)

Analysis

[13]

The
    motion judge was correct to conclude that he did not have jurisdiction over the
    Caetano proceeding. He properly conducted the
Weber
analysis. It is
    the substance of a dispute that governs this analysis. If the dispute, in its
    essential character, arises from the interpretation, application,
    administration or violation of the collective agreement, the dispute falls
    within the exclusive jurisdiction of the labour arbitrator:
Weber
, at
    p. 957.

[14]

The
    core of Caetanos claim is wrongful dismissal and unpaid severance of unionized
    employees in the context of a common employer. These claims are directly tied
    to the employees employment and the terms and conditions of their employment.
    These terms and conditions were comprehensively governed by the collective
    agreement, whether explicitly or through incorporation of provincial employment
    standards. The types of claims raised by Caetano can be, and have been in the
    past, resolved within the labour arbitration process.

[15]

As
    explained by the motion judge, Caetanos reliance on
Ritchie
is
    misplaced as that case involved a breach of contract claim separate and apart
    from the collective agreement, not a common employer claim.

[16]

Similarly,
    the decision in
Logue
does not go as far as Caetano submits. The Chair
    of the OLRB in
Logue
was concerned that the declaration the union
    sought smells too much like interference (if not an attempt to gain a
    priority outside of the bankruptcy) in the orderly and fair distribution of a
    bankrupt's property among the creditors of the bankrupt:
Logue
,

at
    para. 34. Unlike in
Logue,
Caetano is not making an end-run around the
    provisions of the
Bankruptcy and Insolvency Act
, R.S.C., 1985, c. B-3,
    to undermine the orderly distribution of the bankrupts property to creditors.

[17]

Further,
    the Chair was hesitant to act in
Logue
as it is not normally the
    Board's function to actually enforce  its orders or declarations:
Logue
,
    at para. 35. Caetano draws comparisons between this proceeding and enforcement
    proceedings, but Caetanos statement of claim makes clear that the analogy only
    goes so far. Caetano seeks wrongful dismissal damages, a common employer
    declaration, and aggravated and punitive damages. Caetano also makes oppression
    and conspiracy claims, within the context of the employment relationship,
    against the Defendants. Unlike in
Logue
, this is not a proceeding
    where the OLRB is being asked to essentially enforce its own orders against a
    defendant.

[18]

For
    these reasons, I would uphold the motion judges order staying the proceeding
    on jurisdictional grounds.

(2)

Caetano Appeal - Rule 12.08

[19]

Given
    my conclusion on the jurisdiction issue, it is not strictly necessary to decide
    the Rule 12.08 issue raised by Caetano. However, I believe it is an important
    question that should be commented on for future consideration.

(a)

Motion Judges Reasons

[20]

The issue on the limitations motion was whether  as required
    under Rules 21.01(1)(a) and (b)  it was plain and obvious that the representative
    aspects of the two actions
[1]
were
    certain to fail because no representation orders were obtained within the two-year
    limitation period. Indeed, Caetano did not bring a motion for a representation
    order within the limitation period.

[21]

The
    motion judge, in the alternative to his jurisdiction analysis, concluded that
    the representative aspect of the Caetano action must be dismissed pursuant to Rule
    21.01(1) on the basis that the failure to obtain the required representation
    order within the two-year limitation period was fatal.

[22]

In
    reaching this conclusion, the motion judge found that Rule 12.08 applied. He
    noted that while there was no reference to Rule 12.08 in the statement of
    claim, Caetano agreed in his factum that he proceeded under Rule 12.08.

[23]

Focussing
    on the plain meaning of Rule 12.08, the motion judge interpreted the Rule as
    follows, at para. 31:

Note the precision in the statutory language: a proposed
    representative may be authorized by the court
to bring a proceeding
on
    behalf of or for the benefit of all. In my view, this only can be read in one
    way. A representation order authorizing the plaintiff to commence a
    representative proceeding under Rule 12.08 must be obtained
before
the
    proposed representative proceeding is actually commenced. It is not enough to
    commence an individual action, add a representative component in the style of
    cause and then, perhaps years later, seek the required court order. Under Rule
    12.08, a court order is needed to authorize the initiation of the
    representative action. And the initiation of the representative action will
    only be authorized by the court if the plaintiff can show that a proceeding
    under the
Class Proceedings Act, 1992
would be an unduly
    expensive or inconvenient means for determining [his] claim. [Italics in
    original.]

[24]

He also added, at paras. 39-40:

Whether or not the required representation order  must be
    obtained within an applicable limitation period is a question that does not
    turn on any notion of adding parties. Both sides spent some time in their
    written material and oral submissions advancing or refuting lower-court
    decisions that appeared to undertake an added parties analysis under Rule
    5.03 or s. 21(1) of the
Limitations Act.


It is important to remember both in the context of class
    proceedings and representative proceedings that the only parties to the
    action are the certified or court-appointed representative plaintiffs and the
    named defendants. The class members that are represented under the
Class
    Proceedings Act
or the class of persons that is represented under
    Rules 10.01 and 12.08 are not parties. It causes unnecessary confusion
    in the case law to suggest otherwise. [Footnotes omitted.]

[25]

As I read the motion judges reasons, since he did not find a
    limitations problem based on adding parties under s. 21(1) of the

Limitations
    Act, 2002,
S.O. 2002, c. 24, Sched. B (
Limitations
    Act
), he must have concluded that there was a
    limitations problem based on s. 4 of the
Limitations Act
, which precludes the commencement of a proceeding in respect of a
    claim after the second anniversary of the day on which the claim was
    discovered.

(b)

Legal Context

[26]

Before
    turning to the question at hand, I will provide some legal context. I begin by
    considering the wording of Rule 12.08 and how limitations issues have been
    dealt with in the context of class actions. Finally, I consider the question at
    issue  whether a representation order may be obtained after the expiry of the
    limitation period in the circumstances of this case, or whether it is plain and
    obvious that such an order is statute-barred.

(i)

Rule 12.08

[27]

Rule
    12.08 states:

Where numerous persons are members of an unincorporated
    association or trade union and a proceeding under the
Class
    Proceedings Act, 1992
would be an unduly expensive or inconvenient
    means for determining their claims, one or more of them may be authorized by
    the court to bring a proceeding on behalf of or for the benefit of all.

[28]

There
    is little reported case law dealing with the application of Rule 12.08. Indeed,
    the parties did not point to any cases that directly deal with the issue here,
    namely, whether a representation order can be obtained under Rule 12.08
    following the expiry of a limitation period.

[29]

However,
    there are several points worth mentioning about Rule 12.08.

[30]

First,
    Rule 12.08 falls under Rule 12, which is entitled Class Proceedings and Other
    Representative Proceedings.

[31]

Second,
    it is engaged where a person or persons seek to bring a claim on behalf of or
    for the benefit of all members of an unincorporated association or trade union.
    The rule addresses the problems facing unincorporated associations and trade
    unions seeking to sue in their own names.

[32]

Third,
    Rule 12.08 is meant to provide for a less costly and more convenient procedure
    than the
Class Proceedings Act, 1992
, S.O. 1992, c. 6 (
CPA

). Indeed, in determining whether to
    authorize a representative action under Rule 12.08, the court will take a
    similar approach to that taken in determining whether a class action should be
    certified under the
CPA
: see
Ginter v. Gardon
(2001), 53 O.R.
    (3d) 489 (S.C.), at para. 14;
Ottawa (City) Police Assn. v. Ottawa (City)
    Police Services Board
, 2014 ONSC 1584, 55 C.P.C. (7th) 183, at para. 38
    (Div. Ct.).

[33]

Fourth,
    the rule is discretionary. One or more members of an unincorporated association
    or trade union 
may
be
    authorized by the court to bring a proceeding on behalf of or for the benefit
    of all. Thus, unless and until authorization is granted, no representative
    proceeding may be brought.

[34]

Fifth,
    the rule is silent on the question of limitation periods.

(ii)

Limitation Periods and Class Proceedings

[35]

As
    Rule 12.08 provides an alternative to a representative proceeding under the
CPA
,
    it is instructive to consider how the
CPA
deals with the question of
    limitation periods.

[36]

Section
    2(1) of the
CPA
permits a class member to commence a proceeding on
    behalf of the class:

One or more members of a
    class of persons may commence a proceeding in the court on behalf of the
    members of the class.

[37]

Section
    20 of the
Limitations Act
recognizes that a limitation period may be extended,
    suspended or otherwise varied by or under another Act. Section 28(1) of the
CPA
does exactly that:

Subject to
    subsection (2),
any limitation period applicable to
    a cause of action asserted in a class proceeding is suspended in favour of a
    class member on the commencement of the class proceeding
and resumes
    running against the class member when,

(a) the member opts
    out of the class proceeding;

(b) an amendment that
    has the effect of excluding the member from the class is made to the
    certification order;

(c) a decertification
    order is made under section 10;

(d) the class
    proceeding is dismissed without an adjudication on the merits;

(e) the class
    proceeding is abandoned or discontinued with the approval of the court; or

(f) the class
    proceeding is settled with the approval of the court, unless the settlement
    provides otherwise. [Emphasis added.]

[38]

Section
    28(1) suspends the limitation period from the time the proceeding is commenced,
    not from the time the proceeding is certified as a class action:
Logan v.
    Canada (Minister of Health)
(2004), 71 O.R. (3d) 451 (C.A.).

[39]

As
    noted by Karakatsanis J. in
Canadian Imperial Bank of
    Commerce v. Green
, 2015 SCC 60, [2015] 3 S.C.R. 801, at para. 175:

Without s. 28 [of the
CPA
] the commencement of a
    proceeding by a representative plaintiff would only suspend the limitation
    period with respect to that plaintiff; the limitation period governing all
    other potential class members would continue to run during the certification proceedings.

Côté J., who wrote separate reasons, agreed with that
    statement at para. 74. (See also:
Coulson v. Citigroup Global Markets
    Canada Inc.
, 2010 ONSC 1596, 92 C.P.C. (6th) 301, at para. 49, affd 2012
    ONCA 108, 288 O.A.C. 355, at para. 11.)

(c)

Submissions

[40]

Caetano
    submits that the motion judge erred in concluding that he relied on Rule 12.08
    and that he could only seek a representation order in a future motion under
    Rule 12.08 and not Rule 10.01. In the circumstances, I need not decide whether
    Rule 10.01 was available. As I will explain below, the result in the
    circumstances of this case would be the same under either Rule. Thus, I will
    proceed on the assumption that Caetano relied on Rule 12.08.

[41]

Turning
    to Caetanos other arguments, he submits that under the
Limitations Act
,
    a
proceeding
need only
    have been commenced within two years and a representation motion is not a
    proceeding. He points to Rule 1.03(1), which defines a proceeding as an
    application or action.

[42]

In
    Caetanos view, a court may issue a representation order under Rule 12.08 at
    any stage of a proceeding, which promotes flexibility and fairness.

[43]

In
    the alternative, he says that s. 28 of the
CPA
should apply by analogy
    to suspend the limitation period.

[44]

He
    also argues that a representation order can be made
nunc pro tunc
.

(d)

Analysis

[45]

In
    my view, there are several problems with Caetanos arguments.

[46]

First,
    under Rule 12.08, authorization is required to bring a
proceeding
on behalf of or for the
    benefit of all members of a trade union or unincorporated association. As I
    noted earlier, under s. 4 of the
Limitations Act
, a
proceeding

shall not be
    commenced in respect of a claim after the second anniversary of the day on
    which the claim was discovered. Reading Rule 12.08 harmoniously with s. 4, the
    limitation period does not stop running for the claims of class members until a
    proceeding has been brought on their behalf and that does not happen unless and
    until court authorization has been granted under Rule 12.08.

[47]

Second,
    Caetano is effectively arguing that Rule 12.08 suspends the limitation period 
    that once a
proposed
representative commences a
proposed
representative proceeding, the limitation period is suspended on behalf of all
    members of the trade union or unincorporated association. That, as explained
    above, is the situation under the
CPA
where s. 28 expressly suspends
    any limitation period applicable to a cause of action asserted in favour of
    class members on the commencement of a proceeding. In contrast, Rule 12.08 is
    silent on the question of limitation periods and does not purport to extend,
    suspend or otherwise vary any limitation period applicable to claims asserted
    in favour of class members.

[48]

Third,
    the Supreme Courts decision in
Green
supports the view that, without
    a tolling provision, any limitation period applicable to the claims advanced on
    behalf of class members continues to run until the court authorizes the claims
    to be brought by the representative plaintiff:
Green
, paras. 74,
    174-175.

[49]

Finally,
    I would reject the argument that a
nunc pro tunc
order would be
    available in the circumstances of this case where leave was not sought prior to
    the expiry of the limitation period: see
Green
, at paras. 94-111.

[50]

I
    recognize that a representative action under Rule 12.08 is meant to provide a
    less onerous and less expensive alternative to bringing a class action and yet
    a proposed representative plaintiff may feel it is necessary to proceed under
    the
CPA
instead of Rule 12.08
to
    avoid any limitations problems even if it would be more expensive and less convenient
    to do so. My interpretation, therefore, may seem to be at odds with concerns
    about expense and convenience. However, as Côté J. observed in
Green
,
    at para. 75, policy concerns, as compelling as they are, do not override the
    plain meaning of the text and the intent of the Ontario legislature.

[51]

In
    conclusion, even if the Superior Court were the correct forum for pursuing the
    claims of terminated union members, the representative aspect of the Caetano
    action would be statute-barred.

(3)

Abreu Appeal - Rule 10.01

[52]

This
    appeal by the Defendants focuses on one issue: is it plain and obvious that a
    representation order cannot be made under Rule 10.01 in respect of the claims
    of the individuals sought to be represented by the Abreus after the expiry of
    the limitation period in the circumstances of this case? As I will explain, my
    answer to this questions is yes.

(a)

Motion Judges Reasons

[53]

The
    motion judge concluded that the Abreu action was not statute-barred and could
    proceed. He reasoned that there was nothing in Rule 10.01 that plainly and
    obviously required that a motion for a representation order be brought within
    the two year limitation period when the proceeding within which it was brought
    was properly commenced within that limitation period. He noted that a Rule
    10.01 representation order can only be obtained after the initial proceeding
    has commenced.

(b)

Submissions

[54]

The
    Abreus argue that since Rule 10.01 representation orders are brought within an
    already commenced proceeding, and the representation order sought does not seek
    to add new parties, the
Limitations Act
poses no barrier to a
    representation order.

[55]

They
    further submit that this courts decision in
Lawrence v. International Brotherhood
    of Electrical Workers
, 2017 ONCA 321, 138 O.R. (3d) 129, affd 2018 SCC
    11, 16 C.P.C. (8th) 1, is authority for permitting a representation order to be
    made outside of a two year limitation period. The Abreus additional
    submissions are similar to those advanced by Caetano and are addressed by my
    Rule 12.08 analysis above.

(c)

Analysis

(i)

Can a representation order be granted to add statute barred claims?

[56]

Rule
    10.01 provides as follows:

In a proceeding concerning,

(a) the interpretation of a deed, will, contract or other
    instrument, or the interpretation of a statute, order in council, regulation or
    municipal by-law or resolution;

(b) the determination of a question arising in the
    administration of an estate or trust;

(c) the approval of a sale, purchase, settlement or other
    transaction;

(d) the approval of an arrangement under the
Variation of
    Trusts Act
;

(e) the administration of the estate of a deceased person; or

(f) any other matter where it appears necessary or desirable to
    make an order under this subrule,

a judge may by order appoint one or more persons to represent
    any person or class of persons who are unborn or unascertained or who have a
    present, future, contingent or unascertained interest in or may be affected by
    the proceeding and who cannot be readily ascertained, found or served.

[57]

In
    this case, the proceeding does not concern any of the matters listed in (a) to
    (e). Rather, the Abreus are relying on (f)  that in their motion for a
    representation order they will be able to persuade a judge that the proceeding
    concerns any other matter where it appears necessary or desirable to make an
    order under this subrule and that they otherwise meet the criteria for an
    order to be made.  It is apparent that the Abreus seek to rely on Rule 10.01 as
    a class action alternative.

[58]

I
    note that courts have used Rule 10.01 as a class action alternative. However, the
    proper scope of Rule 10.01 has not been delineated by this court, and it need
    not be addressed to determine this appeal. The resolution of the limitations
    issue is driven by a consideration of what the Abreus are seeking to achieve
    through this litigation in respect of the claims of other terminated non-union
    employees of the Defendants. I will explain why such individual claims are
    already statute-barred, and why a representative order under Rule 10.01 would
    not avoid this limitation period problem.

[59]

First,
    I agree with both the motion judge and the Abreus that s. 21(1) of the
Limitations
    Act
, which prevents adding parties to an existing action after the expiry
    of a limitation period, has no direct application here. As the motion judge
    stated at para. 40 of his reasons, [i]t is important to remember both in the
    context of class proceedings and representative proceedings that the only
    parties to the action are the certified or court-appointed representative
    plaintiffs and the named defendants. The Abreus are not seeking to add
    plaintiffs. Their argument is that their statement of claim already seeks
    relief on behalf of the persons they seek to represent under Rule 10.01.

[60]

The
    concern in this case is the application of s. 4 of the
Limitations Act
:

Unless this Act provides otherwise, a proceeding shall not be
    commenced in respect of a claim after the second anniversary of the day on
    which the claim was discovered.

[61]

While
    the Abreus do not seek to add parties to their action, the question is whether
    they can assert claims, through the device of a representation order, on behalf
    of persons who are not plaintiffs in the proceeding, after the limitation
    period in respect of such claims has already expired. The Abreus statement of
    claim seeks termination pay under the ESA and wrongful dismissal damages, as
    well as common employer and other declarations, and aggravated and punitive
    damages for themselves. It purports to assert claims for monetary amounts for approximately
    125 other non-unionized former employees of the Defendants, relying on Rule 10.

[62]

Here
    it must be recalled that the limitation periods for certain individual claims
    expired on May 6, 2016, and for others on June 9, 2016. The Abreu action was
    commenced on May 6, 2016. Although the statement of claim refers to the
    plaintiffs status as proposed representatives under Rule 10, no motion was
    brought for a representation order within the two year limitation period
    applicable to the wrongful dismissal claims.

[63]

The
    Abreus note that a representation order under Rule 10.01 is made [i]n a
    proceeding. This is in contrast to the wording of Rule 12.08 which contemplates
    that proposed representatives will bring a proceeding on behalf of or for the
    benefit of all. On this line of reasoning they assert that, since s. 4 of the
Limitations
    Act
bars commencing a proceeding, and under Rule 10.01 the proceeding has already
    begun before a representation order is sought, the limitation period is of no
    moment.

[64]

This
    court, however, has repeatedly held that parties cannot circumvent the
Limitations
    Act
by amending their pleadings to add additional claims: see
Frohlick
    v. Pinkerton Canada Ltd
. (2008), 88 O.R. (3d) 401;
Dee Ferraro Ltd. v.
    Pellizzari
, 2012 ONCA 55, 346 D.L.R. (4th) 624;
1100997 Ontario
    Limited v. North Elgin Centre Inc.
, 2016 ONCA 848, 409 D.L.R. (4th) 382.
    The addition of new statute-barred claims by way of an amendment to a statement
    of claim is conceptually no different than issuing a new and separate statement
    of claim that advances a statute-barred claim:
Frohlick
,
at para. 24. An amendment will be
    statute-barred if, after the expiry of the limitation period, it seeks to
    advance a fundamentally different claim based on facts not originally
    pleaded:
North Elgin Centre,
at para. 23.

[65]

An
    amendment will also be statute-barred if it seeks to add a new cause of action:
North Elgin Centre
, at paras. 19-23, 33. A cause of action is a
    factual situation the existence of which entitles one person to obtain from the
    court a remedy against another person:
North Elgin Centre,
at para.
    19. A new cause of action is not asserted if an amendment pleads an alternative
    claim for relief from the same facts, or in other words, if the amendment flows
    directly from the facts already pleaded: see
North Elgin Centre,
at
    paras. 20-21;
Dee Ferraro
, at paras. 13-14

[66]

In
    this case, the Abreus statement of claim sets out facts relevant for all 125 non-union
    employees of the Defendants who were terminated
en masse
on May 6,
    2014 and June 9, 2014. The statement of claim also clearly sets out that it is a
    proposed representative action under Rule 10. At first blush, a representation
    order permitting the Abreus to bring claims on behalf of these employees may not
    appear to be adding new claims. The facts grounding the representation order
    have already been pleaded, and the claims advanced on behalf of the potentially
    represented employees are not fundamentally different than the claims advanced
    by the Abreus.

[67]

The
    reality however is that, while the claims of other terminated employees are
    referred to in the statement of claim, those employees are not parties to the proceeding,
    and their claims cannot be advanced by the Abreus unless or until a
    representation order is obtained. In the interim, the limitation period in
    respect of such claims has continued to run. There is no equivalent to s. 28 of
    the CPA that would toll the operation of the limitation period.

[68]

As
    noted above, representative plaintiffs under s. 2 of the
CPA
commence
    proceedings on behalf of the members of the class, and a certification order is
    sought within the context of that proceeding. Despite a certification motion under
    the
CPA
occurring within the context of an already commenced
    proceeding, individual members of the class require the presence of a tolling
    provision to maintain their claims beyond applicable limitation periods. The
    commencement of a class proceeding is not enough on its own: see
Green
,
    at para. 175.

[69]

Similarly,
    under Rule 10.01 a representation order is sought within the context of an
    already existing proceeding, but there is no tolling provision applicable to
    Rule 10.01. Thus, the logic set out by the Supreme Court in
Green
applies
    and the limitation period continues to run for those individuals on whose
    behalf the Abreus purportedly assert claims. This approach treats limitations
    issues arising in Rule 10.01 proceedings that are akin to class actions in a
    manner consistent with Rule 12.08 and
CPA
proceedings.

[70]

Without
    addressing the question of the various types of proceedings in which a Rule 10
    representation order might be available, I note that courts should be cautious
    to not create limitations issues where none exist.  A representation order
    under Rule 10.01 may be sought in proceedings in a variety of circumstances.  In
    many circumstances limitation period defences may have little or no
    application, and therefore pose no impediment to the making of a representation
    order at any stage in the proceedings. Here, however, it is clear that the
    representation order sought by the Abreus could not have the effect of
    extending the limitation period for claims against the Defendants that have
    already expired. It is plain and obvious that the claims would be defeated by
    the two-year limitation period under the
Limitations Act.


(ii)

Lawrence

[71]

Finally,
    the Abreus submit that this courts conclusion in
Lawrence
is authority for a representation order to be made
    outside the limitation period.
I do not agree with this submission.

[72]

Ms.
    Lawrence brought an action for wrongful dismissal against the International
    Brotherhood of Electrical Workers, Local 773 (Local 773).  She subsequently
    added individuals, all directors of Local 773, as defendants. In its statement
    of defence, Local 773 pleaded that, as a union, it could not be named as a party
    under the
Rights of Labour Act
, R.S.O. 1990, c. R.33. Ms. Lawrence
    successfully moved to amend her statement of claim, after the expiry of the
    limitation period, to add the individuals as representatives of all the members
    of Local 773 by way of a Rule 12.07 representation order. Rule 12.07 provides
    that [w]here numerous persons have the same interest, one or more of them may
    defend a proceeding on behalf or for the benefit of all, or may be authorized
    by the court to do so.

[73]

On
    appeal, this court dismissed Local 773s appeal and upheld the representation
    order despite the expiry of the limitation period. Writing for the majority,
    Sharpe J.A. concluded that the request for a representation order in this case
    could properly be characterized as a request to correct the name of a party
    incorrectly named within the meaning of r. 5.04(2): at para. 27.

[74]

As
    noted by Sharpe J.A., this court explained in
Lloyd v. Clarke
, 2008
    ONCA 343, 52 C.P.C. (6th) 41, at para. 4, where there is a coincidence between
    the plaintiffs intention to name a party and the intended partys knowledge
    that it was the intended defendant, an amendment may be made despite the
    passage of the limitation period to correct the misdescription or misnomer. Subsection
    21(2) of the
Limitations Act
specifically permits the correction of a
    misnaming or misdescription of a party after the expiry of a limitation period.

[75]

The
    Supreme Court affirmed the majoritys reasoning:
Lawrence
SCC, at
    para. 1.

[76]

Lawrence
has no application to the circumstances of this case. Nor does it provide any
    general authority for granting a representation order to permit claims to be pursued
    after a limitation period in respect of such has expired. The case turned on
    the fact that the union was already named as a defendant (although by law it
    could not be sued), and that the representation order could be used, in the
    particular circumstances of the case  where the parties proceeded as though
    the union had been properly sued -  to correct a misnomer.

[77]

For
    these reasons, I would allow this appeal. I would strike references to the
    action proceeding as a representative action under Rule 10 from the Abreu
    statement of claim on the basis that the claims of the persons sought to be
    represented are statute-barred.

DISPOSITION

[78]

In
    the result, I would dismiss the Caetano appeal and award costs to the
    Defendants (respondents) in the amount of $25,000 inclusive of disbursements
    and HST. I would allow the Abreu appeal and award costs to the Defendants
    (appellants) in the amount of $18,500 inclusive of disbursements and HST.

Released: DW JUL 27 2018

H.S. LaForme J.A.

I agree. Paul Rouleau J.A.

I agree. K. van Rensburg J.A.





[1]
There is no dispute that the plaintiffs and the other former unionized and
    non-unionized employees in both actions were terminated on May 6, 2014 and June
    9, 2014, depending on the location of their employment. There is no dispute
    that the limitation period for all claims asserted in the statements of claim
    expired on May 6, 2016 and June 9, 2016, respectively. Specifically, there is
    no issue that both actions were commenced within the two-year limitation period
    and are not time-barred as they relate to claims by the plaintiffs in their personal
    capacities.


