



COURT OF APPEAL FOR ONTARIO

CITATION: Brown v. Hanley, 2019 ONCA 395

DATE: 20190515

DOCKET: C65155/C66387

Rouleau, van Rensburg and Benotto JJ.A.

BETWEEN

Tracey
    Brown, Angela Clark,
Dennis Boland and Cornelius Keigher

Plaintiffs (Respondents/

Appellants by way of
    cross-appeal)

and

Lawrence
    J. Hanley on his own behalf and on behalf of all
members of the Amalgamated Transit Union (International)
and

Amalgamated
    Transit Union (ATU), Local 113

Defendants (
Appellant/

Respondent by way
    of cross-appeal
)

John McLuckie and Alycia Shaw, for the appellant/respondent
    by way of cross-appeal

Sean Dewart, Tim Gleason and Adrienne Lei, for the
    respondents/appellants by way of cross-appeal

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

Heard: January 24, 2019

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated February 15, 2018, with reasons reported
    at 2018 ONSC 1112, 2018 C.L.L.C. 220-031.

Benotto J.A.
:

[1]

The Amalgamated Transit Union (International) (the International) is an
    international trade union headquartered in the United States. The appellant, Lawrence
    J. Hanley, is the Internationals president. The respondents are four rank and
    file members of the Internationals Toronto-based affiliate, the Amalgamated
    Transit Union (ATU), Local 113 (Local 113).

[2]

Relations between the members of Local 113 and the International are
    governed by the Internationals
Constitution and General By-Laws of the
    Amalgamated Transit Union
(the 
Constitution
). The respondents
    brought an action in the Superior Court of Justice seeking, among other things,
    a declaration that certain sections of the
Constitution
are void for
    unconscionability. In response, the appellant brought a motion to strike or
    stay the action on various grounds under r. 21.01 of the
Rules of Civil
    Procedure,
R.R.O. 1990, Reg. 194
.
    Local 113, which received leave to intervene as an added defendant to the
    action, supported the appellants motion.

[3]

The motion judge granted a temporary stay of the action but dismissed
    the balance of the motion. He found that the action presented arguable issues
    which the respondents had capacity to raise and which the court had
    jurisdiction to determine. However, the motion judge held that the action was
    premature and that the respondents must first exhaust the Internationals constitutional
    amendment process before seeking relief in the court. The action was
    temporarily stayed on this basis.

[4]

Mr. Hanley, on his own behalf and on behalf of all members of the International,
    appeals the dismissal of the motion to strike. The respondents cross-appeal the
    temporary stay. Local 113 supports the position of the appellant on both the
    appeal and cross-appeal.

I.

FACTS

[5]

The International was established in 1892 and currently represents over 200,000
    transportation workers across 240 local union chapters in the United States and
    Canada. Local 113 was formed in Toronto in 1899 through a charter issued by the
    International. Local 113 currently represents approximately 11,000 employees of
    the Toronto Transit Commission and 200 employees of Veolia Transportation in
    collective bargaining.

[6]

Members of Local 113 are also members of the International. As such,
    they are bound both by Local 113s internal by-laws and by the
Constitution
.
    The
Constitution
is capable of amendment at the Internationals
    Convention by a two-thirds majority vote.

[7]

The respondents, individual members of Local 113, filed a statement of
    claim in the Superior Court of Justice seeking a declaration that nine sections
    of the
Constitution
are void for unconscionability.
[1]
They also sought an injunction enjoining the appellant from taking any
    reprisals against them for having brought the action.

[8]

The respondents argued that the impugned provisions of the
Constitution
prevent members of Local 113 from freely deciding whether or not to disaffiliate
    from the International and should therefore be declared unconscionable and of
    no force or effect. In their view, the provisions achieve this effect by:

1.

allowing 10 members of Local 113 to block a disaffiliation vote (s.
    17.1);

2.

requiring Local 113 to forfeit its property to the International in the
    event of disaffiliation (s. 13.4); and

3.

imposing sanctions against Local 113 or its members for expressing
    dissent or attempting to disaffiliate (s. 13.17, 22.1).

[9]

In the result, the respondents argued, the disaffiliation of Local 113 from
    the International is rendered practically impossible. The provisions are
    therefore unconscionable as a matter of contract law and run afoul of statutory
    and constitutional principles protecting the right of Canadian workers to
    freely choose their own union.

[10]

The
    appellant, with the support of Local 113, filed a notice of motion to strike or
    stay the claim pursuant to r. 21.01 of the
Rules of Civil Procedure
. He
    argued that:

·

The court lacked jurisdiction over the action because disputes of
    this kind are to be dealt with at the Ontario Labour Relations Board (the
    Board).

·

The respondents lacked capacity to commence the action in the
    absence of a representative order, because the relief they sought would bind
    thousands of other members of Local 113.

·

The statement of claim disclosed no reasonable cause of action
    because (a) it failed to plead the necessary elements of a claim of
    unconscionability, and (b) an actionable
lis
or dispute between the
    parties had not yet developed, such that the claim was not justiciable.

[11]

In
    the alternative, the appellant sought a stay of the action and an order
    requiring the respondents to exhaust all internal rights and remedies under the
Constitution
to resolve the dispute prior to seeking relief in the
    court.

II.

DECISION
    BELOW

[12]

The
    motion judge dismissed the appellants motion to strike the action. However, he
    granted a stay of the action pending the respondents pursuit of amendments to
    the
Constitution
through the
    International
s amendment
    process
. Further, the motion judge enjoined both the International
    and Local 113 from imposing any form of discipline in response to the respondents
    pursuit of such amendments. He held that, following exhaustion of the amendment
    process, the stay could be lifted by any party, but that if the respondents chose
    not to engage that process, their action would be permanently dismissed.

[13]

In
    dismissing the motion to strike, the motion judge rejected each of the arguments
    advanced by the appellant on the issues of jurisdiction, capacity and no
    reasonable cause of action. His ruling on each issue is summarized below.

With respect to jurisdiction

[14]

The
    motion judge rejected the appellants claim that the court lacked jurisdiction
    to grant the relief sought. He reviewed developments in the law applicable to
    labour unions. While unions were once treated as mere associations whose members
    were connected directly to one another by a web of individual contracts, the
    Supreme Court of Canadas decision in
Berry v. Pulley
, 2002 SCC 40, [2002]
    2 S.C.R. 493 recognized that unions possess a discrete legal identity in their
    own right. When a person joins a union, they are now regarded as contracting directly
    with the union as such, pursuant to terms codified in the unions constitution
    or founding charter. The act of membership thus creates a relationship in the
    nature of a contract between the member and the union, capable of enforcement
    by either party:
Berry v. Pulley,
at para. 48.

[15]

In
    light of the change augured by
Berry v. Pulley
,

the motion
    judge held that, as a matter of contract law, individual union members could
    sue their union for declaratory relief with respect to the union constitution.
    To obtain relief, however, a member would have to show that a significant right
    or interest was at play, and that internal means to remedy the issue had been
    exhausted. Provided that those two conditions were met, the court could
    exercise its jurisdiction to rule on the issue, unless its jurisdiction was
    ousted by the legislature. The motion judge held that no such ouster applied in
    this case, as the terms of the
Labour Relations Act, 1995
, S.O. 1995,
    c. 1, Sched. A (the 
LRA
) did not confer jurisdiction on the Board to
    determine the legality of union constitutions. The court therefore had
    jurisdiction to grant the respondents request for relief.

With respect to capacity

[16]

The
    motion judge also rejected the appellants submission that the respondents
    lacked capacity to bring the action. Under the law of contract, parties to a
    contract may sue to enforce its terms and determine the extent to which the
    contract creates enforceable promises. In the motion judges view, the fact
    that the respondents are four rank and file members lacking the representative
    capacity to bind other members of Local 113 was of no moment. Their status as
    parties to the contract established their capacity to file suit.

Regarding the cause of action

[17]

Finally,
    the motion judge rejected the appellants argument that the respondents
    statement of claim disclosed no reasonable cause of action. Citing this courts
    decision in
Birch v. Union of Taxation Employees, Local 70030
, 2008
    ONCA 809, 93 O.R. (3d) 1, the motion judge
concluded that
    the respondents correctly pleaded the necessary elements of a claim of
    unconscionability: that the
Constitution
, as an adhesion or
    take-it-or-leave-it contract, is forged through a pronounced inequality of
    bargaining power, which the International abused by including terms that thwart
    any prospect of Local 113s disaffiliation. The claim of unconscionability was
    therefore arguable and should not be struck at the pleadings stage.

[18]

The
    motion judge further rejected the contention that the claim disclosed no cause
    of action because there was no actionable
lis
or dispute between the
    parties. To the contrary, he observed that the parties were actively disputing
    the legality of the contract binding them together. In his view, the dispute
    was neither academic nor hypothetical, but real and immediate, and thus it was
    justiciable.

III.

EVENTS AFTER
    THE ORDER

[19]

The
    motion judges order staying the action and dismissing the motion to strike contained
    both interlocutory and final portions. In general, where an order has both
    interlocutory and final portions, the appeal lies to this court only from the
    final portion of the order:
Cole v. Hamilton (City)

(2002),
60 O.R. (3d) 284
    (C.A.), at para. 9
. Leave to appeal from the interlocutory portion
    must be obtained from the Divisional Court, at which point a party may move to
    have the appeals heard together in this court:
Azzeh v. Legendre,
2017
    ONCA 385, 135 O.R. (3d) 721, at para. 25;
Courts of Justice Act,
R.S.O.
    1990, c. C.43, ss. 6 and 19(1)(b).

[20]

The
    parties to this appeal pursued their appeals at first instance in the proper
    courts. The appellant filed a notice of appeal in this court against the motion
    judges final order dismissing the motion to strike.
[2]
The respondents sought and were granted leave by the Divisional Court to appeal
    the motion judges interlocutory stay order. Shortly after the Divisional Court
    granted leave, Hourigan J.A. granted the appellants request to consolidate the
    Divisional Court appeal with the appeal in this court. Both appeals are
    therefore properly before this court.

[21]

The
    appellant seeks to rely on fresh evidence detailing the steps taken by the
    parties, since issuance of the motion judges order, to amend the
Constitution
through internal union channels. The evidence reveals that on or about March
    18, 2018, the membership of Local 113 approved a motion to amend those
    provisions of the
Constitution
that the respondents argue are
    unconscionable. This motion, brought by the respondents and adopted by Local
    113 as a resolution, was forwarded to the Internationals offices in Maryland
    as required by the internal procedures of the International. It will be
    considered at the Internationals Triennial Convention scheduled for September
    23-27, 2019 in Las Vegas, Nevada. Following a period of debate, it will be
    voted on. In the meantime, the International has retained a Canadian labour law
    expert, Professor Brian Langille, to provide advice on amending the
Constitution
in light of the requirements of Ontario and Canadian labour law.

IV.

ISSUES

[22]

The
    issues are:

1.

by
    way of appeal, whether the motion judge erred in dismissing the motion to
    strike; and

2.

by way of cross-appeal, whether the motion judge erred in temporarily
    staying the action.

[23]

The
    standard of review of the motion judges decision to dismiss the motion to
    strike is correctness, as the decision determined questions of law:
Attis
    v. Canada (Health)
, 2008 ONCA 660, 93 O.R. (3d) 35, at para. 23;
Canadian
    Union of Postal Workers v. Quebecor Media Inc
., 2016 ONCA 206, 129 O.R.
    (3d) 711, at para. 2.

[24]

By
    contrast, the motion judges decision to impose a temporary stay of the action
    was discretionary in nature. The cross-appeal thus attracts a deferential
    standard of review. The court will only intervene if the exercise of the motion
    judges discretion was based on a wrong principle, a failure to consider a
    relevant principle or a misapprehension of the evidence:
Aldo Group Inc. v.
    Moneris Solutions Corporation,
2013 ONCA 725, 118 O.R. (3d) 81, at para.
    30.

V.

ANALYSIS

The appeal of the dismissal of the motion to strike

[25]

I
    begin with a reference to the relevant portions of r. 21.01:

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a
    question of law raised by a pleading in an action where the determination of
    the question may dispose of all or part of the action, substantially shorten
    the trial or result in a substantial saving of costs; or

(b) to strike out a
    pleading on the ground that it discloses no reasonable cause of action or
    defence,

and the judge may make an order or grant judgment
    accordingly.

[]

(3) A defendant may move before a judge to have an
    action stayed or dismissed on the ground that,

(a) the court has no jurisdiction over the subject
    matter of the action;

(b) the plaintiff is
    without legal capacity to commence or continue the action or the defendant does
    not have the legal capacity to be sued;

[26]

Against
    these parameters, I will deal with each of the appellants submissions.

No reasonable cause of action r. 21.01(1)(b)

(i)

Unconscionability

[27]

The
    appellant submits that the statement of claim failed to plead the requisite
    elements of unconscionability, which in his view are: (i) a pronounced
    inequality of bargaining power, (ii) a substantially improvident bargain, and
    (iii) abuse of the inequality of power. He submits that the claim merely
    alleges an inequality of bargaining power and this does not in itself render a
    contract unconscionable. In his view, the motion judge erred in finding that
    additional facts, though not pleaded, somehow arose from vulnerabilities supposedly
    inherent to union membership itself. In particular, the appellant points to the
    motion judges reasons at para. 71:

I disagree with the Defendants
    submission that the Plaintiffs have only pleaded an adhesion contract and no
    facts upon which an abuse of power could be established. Those facts arise from
    the circumstance that the union members are notoriously in a situation of
    dependency, vulnerability, lack of independent representation, peer pressure,
    and reliance on the collective constituted by the union. And, as Justice
    Iacobucci noted in
Berry v. Pulley
(SCC), it must be
    borne in mind that a statutory labour relations scheme is superimposed over the
    contract between the member and the union and can create legal obligations. The
    contract, its terms, and the notion of the bargaining associated with
    membership must be viewed in this overall statutory and historic context.

[28]

The
    appellant submits that this is a remarkably pejorative analysis that reflects
    derogatory assumptions about unions that were not expressly pleaded.

[29]

Local
    113 adopts the submissions of the appellant. In addition, it submits that the
    court should recognize that union constitutions are not ordinary commercial
    contracts, but are instead developed democratically over time by the members
    whom they bind. These constitutions should not be subject to the common law
    doctrine of unconscionability, because application of the doctrine would
    undermine their democratic, evolutionary nature.

[30]

I
    do not agree. There is no reason to eliminate the doctrine of unconscionability
    in the context of this case. This court has previously held that the doctrine
    of unconscionability applies in disputes between a union and its members. In
Birch
,
    at para. 39, Armstrong J.A. said:

I can discern nothing in the
    unique contractual relationship between a union member and his or her union
    which would suggest to the court that we should refuse to apply the doctrine of
    unconscionability in appropriate circumstances. To suggest otherwise would be
    to deny the exercise of the equitable jurisdiction of the court to provide a
    remedy to individual members who have suffered an injustice at the hands of
    their union.

[31]

In
    Ontario, the test for unconscionability contains four elements, as set out in
Heller
    v. Uber Technologies Inc.,
2019 ONCA 1, 52 C.C.E.L. (4th) 10, at para. 60:

1.   a grossly unfair and improvident transaction;

2.   a victim's lack of independent legal advice or other
    suitable advice;

3.   an overwhelming imbalance in bargaining power caused by
    the victim's ignorance of business, illiteracy, ignorance of the language of
    the bargain, blindness, deafness, illness, senility, or similar disability; and

4.   the other party's knowingly taking advantage of this
    vulnerability.

[32]

As
    confirmed by the Supreme Court in
Berry v. Pulley
, union contracts, as
    contracts of adhesion, entail an inherent inequality of bargaining power. The respondents
    allege that the International took advantage of this dynamic by incorporating into
    the
Constitution
what they describe as three fundamentally inequitable
    provisions: the 10-member veto on disaffiliation; the forfeiture of assets upon
    disaffiliation; and the suppression of disaffiliation-related activities
    through the threat of internal discipline. There is no indication that the
    respondents received legal advice or that they would have been able to
    negotiate the terms of the union contract had they received it: see
Uber,
at
    para. 68. The claim of unconscionability was therefore arguable and should not have
    been struck at the pleadings stage. The motion judge correctly disposed of this
    issue.

(ii)

Justiciability

[33]

The
    appellant submits that the motion judge further erred in his r. 21.01(1)(b) analysis
    by finding the existence of a justiciable dispute between the parties, despite
    the fact that the respondents failed to plead the infringement of any
    individual right or entitlement. Absent an allegation that the International disciplined
    or otherwise took action against the respondents for attempting to pursue
    disaffiliation, the appellant argues the claim is not justiciable.

[34]

I
    reject this submission. The respondents sought declaratory relief concerning
    the legality of specific provisions in the
Constitution
. Courts have
    jurisdiction to grant such relief under their inherent jurisdiction and
    pursuant to
s. 97
of
    the
Courts of Justice
Act
.

[35]

A
    declaratory judgement by a court is a formal statement.pronouncing upon the
    existence or non-existence of a legal state of affairs: Zamir &
    Woolf,
The Declaratory Judgment
,
    3rd ed. (London: Sweet & Maxwell, 2002), at para. 1.02. It does not require
    an injury or wrong to have been committed or even threatened. Rather, it is
    available where the dispute before the court is real and not theoretical,
    where the party raising the issue has a genuine interest in its resolution, and
    where the respondent has an interest in opposing the declaration sought:
Ewert
    v. Canada
, 2018 SCC 30, [2018] 2 S.C.R. 165, at para. 81.

[36]

Here
    there is a real question as to the legality of various provisions in the
Constitution
.
    The question is

raised by the respondents who have an interest in raising
    it. The appellant, on the other hand, has a clear interest in opposing the
    declaration sought. The court has discretion to resolve the dispute by
    declaration. If the declaration is granted, the dispute will be settled between
    the parties. In my view, the motion judge therefore correctly found the dispute
    to be justiciable.

Lack of capacity r. 21.01(3)(b)

[37]

The
    appellant, supported by Local 113, submits that the motion judge erred in
    misconstruing the issue with respect to capacity. The motion judge concluded
    that the respondents had capacity to sue as parties to the contract. He went on
    to hold, at para. 65, that [w]hether a formal representative order is required
    to bind the Defendants to this action in contract is just a procedural
    technicality. The appellant submits that the issue under r. 21.01(3)(b) was
    not about the appellant or Local 113. Rather, it was about the respondents and
    whether they lacked capacity to file suit on behalf of all other members of
    Local 113 in the absence of a representative order under r. 12.08. The
    appellant refers to paragraph (1)(a) of the Amended Amended Statement of Claim,
    which asks the court to deem the sections of the
Constitution
void
    and of no force or effect insofar as the plaintiffs and other members of Local
    113 of the Amalgamated Transit Union are concerned. The impugned sections
    provide for forfeiture of the Locals property upon disaffiliation and the
    power to place the Local in trusteeship.

[38]

The motion judge relied on
Berry v. Pulley
in concluding that the respondents had standing to
    bring their action
.
I
    agree that, pursuant to
Berry v. Pulley
the respondents would have the right to bring an action
    against their union to assert their individual claims.

[39]


There, the matter involved an intended
    action by pilots against their own trade union. The issue before the Supreme
    Court was whether individual union members may be personally liable to other members
    for breach of contract. The court held, at para. 48, that when a member joins a
    union, a relationship in the nature of a contract arises between the member
    and the trade union, such that the member can sue the union for an alleged breach.
    However, the unions liability in this context is limited to its own assets and
    cannot extend to its members personally.
In
    reaching this conclusion
, the court discarded the notion that every union
    member has a contract with the other members, in favour of a common sense
    approach that each union member has a contractual relationship with the union
    itself: at para. 5.

[40]

The
    court in
Berry v. Pulley
also recognized, at para. 48, that the contractual
    relationship between a union and its members is unique:

this relationship is in the
nature
of a contract because it is unlike a typical commercial contract.  Although the
    relationship includes at least some of the indicia of a common law contract
    (for example offer and acceptance), the terms of the contractual relationship
    between the union and the member will be greatly determined by the statutory
    regime affecting unions generally as well as the labour law principles that
    courts have fashioned over the years. [Emphasis in original.]

[41]

The
    court went on at para. 49 to note a number of distinguishing features of the typical
    union contract:

First, it is essentially an adhesion contract as, practically
    speaking, the applicant has no bargaining power with the union.  Moreover, in
    many situations, union membership is a prerequisite to employment, leaving the
    individual with little choice but to accept the contract and its terms. 
    Finally, it must be borne in mind that a statutory labour relations scheme is
    superimposed over the contract between the member and the union, and can create
    legal obligations. Consequently, the contract must be viewed in this overall
    statutory context.

[42]

In
    my view, union contracts are distinct from commercial contracts in two
    additional respects. First, union contracts result from a process of
    deliberation among members who share certain interests in common as workers. The
    union as a legal entity plays no oppositional role in this process, even though
    it becomes a party to the resulting contract with its members. This is unlike the
    manner in which commercial contracts are formed or amended, where adverse
    parties are active participants in negotiations.

[43]

A
    second distinguishing feature of union contracts flows from the democratic
    character of union membership. Unlike parties to a typical commercial contract,
    individual parties to a union contract become members of that union. As members
    they acquire the power to conduct the unions affairs collectively, often through
    a system of elected representatives. Union membership confers a range of other rights,
    obligations, and protections, including the right to propose changes to the contract
    through a periodic constitutional amendment process. What lone individuals may
    lack in bargaining power when joining a union thus contrasts sharply with the collective
    power they exercise as equal members.

[44]

While
    the union contract is unique, and while common law contractual principles may
    need to be adapted in this context, none of this changes the fact that the
    respondents are parties to the contract with the capacity to sue. The motion
    judge concluded as much at para. 41:

Parties to a contract have the
    standing to sue to enforce the contract and to determine the extent to which a
    contract creates enforceable promises. In the immediate case, the Plaintiffs
    have standing to bring their action.

[45]

While the motion judges conclusion on this issue seems
    dispositive, he does not appear to have addressed the issue of the respondents
representative
capacity  that is, their capacity to sue
on behalf
of all other members of Local 113,
absent a representative
    order under r. 12.08. Nor did he address the appellants broader concerns,
    including the trusteeship provisions, the Locals property on disaffiliation
    and the fact that these matters cannot be limited to the four claimants. The
    respondents point out that Local 113 has already been added as a defendant and
    will therefore participate in the action and be bound by the result. In oral
    submissions, the respondents proposed to resolve the issues by amending the
    pleadings to remove the words 
and other members of Local 113 of the
    Amalgamated Transit Union from paragraph 1(a).
However, as
    the appellant submits, the impugned provisions of the
Constitution
cannot by their nature be declared void for only some members and
    not others. The proposed amendment would not solve this issue thus the
    respondents should not be able to proceed with their action without a
    representative order.

[46]

I agree that these issues were not addressed in
    the court below. Given the novelty of this situation, whether the respondents
    should be required to obtain a representative order in order to bring their
    action and the remedies they can seek without obtaining such an order are issues
    that should be determined in the course of the proceedings. They cannot be
    determined on a final basis at this stage of the appeal and without the
    pleading having been amended.

Lack of jurisdiction r. 21.01(3)(a)

[47]

The
    appellant submits that the motion judge identified several provisions of the
LRA
that were pertinent to many parts of the claim but then erred in subsequently
    determining that the court rather than the Board had jurisdiction over the
    claim.

[48]

I
    do not agree. The Board has previously held that its mandate under the
LRA
does not include overseeing the internal governance of trade unions: see
Ballantyne
    v. Ontario Secondary School Teachers Federation
, 2013 CanLII 41565 (ON
    LRB), at para. 24. In addition, a long line of court jurisprudence confirms
    that, when a member joins a union, a contract is created between the member and
    the trade union, and an action may be brought by a member against the union for
    breach of contract:
Berry v. Pulley
, at paras. 48-49. See
    also:
Lee v. Showmen's Guild of Great Britain
, [1952] 2 Q.B.
    329 (C.A.) at p. 341;
Bonsor v. Musicians' Union
, [1956]
    A.C. 104 (H.L.);
Orchard v. Tunney
1957, 8 D.L.R.
    (2d) 273 (S.C.C.) at p. 278;
Howard v. Parrinton
(1971),
1971 CanLII 394 (ON SC)
, 21
    D.L.R. (3d) 395 (Ont. H.C.J.) at p. 400;
Birch,
at para. 50;
    G.W. Adams,
Canadian Labour Law
(2
nd
ed.)
    (Toronto: Thomson Reuters Canada Ltd., 2011) at para. 14.980.

[49]

I
    therefore see no error in the motion judges decision with respect to
    jurisdiction.

The cross-appeal of the temporary
    stay

[50]

By
    way of cross-appeal, the respondents seek to set aside the motion judges order
    granting a temporary stay of the action. This is directly related to the
    appellants motion to adduce fresh evidence on this appeal.

Fresh evidence

[51]

As
    I noted above, the fresh evidence sets out the steps taken by the respondents to
    amend the
Constitution
to address the issues they raised through their
    court action. They brought a motion to Local 113 in March 2018, which the Local
    adopted as a resolution and forwarded to the International to be debated and
    voted on at the Internationals Triennial Convention in September 2019. In
    addition, the fresh evidence reveals that the International has retained a
    labour law expert to review and provide advice with respect to possible
    amendments of the
Constitution
. The respondents submit that the fresh
    evidence should not be admitted because it is not relevant and would not have
    changed the result on the motion.

[52]

I
    disagree. The events that have taken place speak precisely to why the motion
    judge granted the stay in the first place. He made this clear, at paras. 78-80:

the opposing views of the parties are worthy of a debate in a
    safe space before the parties turn to litigation.

In my opinion, given the courts historic reluctance to involve
    itself in the affairs of an association until after the processes of the
    association are exhausted, the case at bar is an appropriate case to grant a
    temporary stay provided that the Plaintiffs are protected from 
    retaliatory action.

For the above reasons, I grant a temporary stay. The terms of
    the temporary stay are that: (a) the Plaintiffs may invoke the amendment
    process of the International Unions
Constitution and General
    Laws
to request amendments to Sections 12, 13.4, 13.5, 13.7, 17,
    21.7, 22.1, 22.2 and 27; (b) the Defendants are enjoined from imposing any form
    of discipline, union charges, or reprisal in response to the Plaintiffs
    request to amend the
Constitution and General Laws;
(c)
    following the exhaustion of the amendment process, the stay may be lifted upon
    application of either party; and (d) if the Plaintiffs do not request
    amendments to the International Unions
Constitution and General
    Laws,
then their action shall be permanently stayed or dismissed.

[53]

The
    fresh evidence describes the unfolding of the constitutional amendment process
    anticipated by the motion judge and is highly relevant to the continuation of
    the stay. It is also credible evidence that could not have been obtained at the
    time of the hearing of the motion, since it relates to events that post-date
    the motion judges decision. I would admit the fresh evidence as it meets the
    test set out in
Sengmueller v. Sengmueller
(1994), 17 O.R. (3d) 208.

Merits of the cross-appeal

[54]

The
    respondents ask this court to set aside the motion judges decision to
    temporarily stay the action. I note that the stay is an interlocutory order
    entitled to significant deference from this court. An appellate court will
    overturn a stay only if the court below erred in principle, failed to consider
    a relevant principle, or misapprehended the evidence:
Aldo Group,
at
    para. 30.

[55]

The
    respondents point to three alleged errors in the motion judges stay decision.
    First, they submit he erred by applying administrative law principles governing
    judicial review of internal union decisions, rather than prejudice-based common
    law principles governing stays of civil actions framed in contract. Second, the
    respondents argue the motion judge misinterpreted the
Constitution
to
    erroneously conclude that it

provides a reasonable internal remedy that
    the respondents could pursue in lieu of a court action. Third, they claim he
    fashioned an inadequate remedy as part of his stay order that fails to protect
    union members other than the respondents from retaliation for pursuing
    disaffiliation.

[56]

I
    reject these submissions.

[57]

With
    respect to the first argument, the respondents draw a distinction between
    challenges to specific union decisions on the one hand, and challenges to the
    legality of union rules on the other. Acknowledging that administrative law
    principles of prematurity and internal remedies apply to the first type of
    challenge, the respondents submit that they should not apply to the second. No
    case law is provided to support this submission. In my view, whether
    administrative law principles or common law principles governing stays of civil
    actions are applied, the result is the same. Given the novelty of the claim
    being advanced, the motion judges decision to impose a temporary stay was
    reasonable in the circumstances. It was also reasonable in light of the uncertainty
    as to the need for a representative order and as to the available remedy should
    such an order not be obtained.

[58]

The
    fresh evidence is directly relevant to the respondents second argument on the
    cross-appeal. As the evidence shows, the respondents successfully advanced a
    motion within Local 113 proposing amendments to the
Constitution
. Local
    113 adopted the motion as a resolution. It will now be discussed, debated and
    voted on at the Internationals Convention in September 2019. If the resolution
    is approved at Convention, the respondents will obtain precisely the relief
    they seek through this court action, which would in turn render the action moot.
    The notion that the
Constitution
provides no reasonable internal remedy
    is belied by these developments and must therefore be rejected.

[59]

With
    respect to the respondents third argument, the motion judge appears to have canvassed
    the terms of the stay with the parties, as indicated in his reasons at para. 75:

As
    it turns out, it is the matter of the threat of retaliatory action that has
    inhibited the Plaintiffs from resorting to the internal processes of the
Constitution
    and General Laws
. It emerged during oral argument that the ancillary
    injunctive relief was perhaps more important than the Plaintiffs request of
    having various provisions of the
Constitution and General Laws
declared
    null and void and unenforceable, which will require a trial to resolve.


[60]

As
    part of his stay order, the motion judge enjoined both the International and
    Local 113 from imposing any form of discipline, union charges, or reprisal in
    response to the [respondents] request to amend the
Constitution:
at
    para. 80. The respondents complain that the order does not protect union members
    other than the respondents from retaliation. While I do not read the motion
    judges order so narrowly, I note that the respondents have not brought forward
    any fresh evidence of actual retaliation suffered by their supporters. Absent
    such evidence, the argument that the stay order provides inadequate protection
    is merely speculative.

[61]

For
    these reasons, I see no basis to interfere with the motion judges exercise of
    his discretion to stay the action. I would uphold the stay on the same terms
    the motion judge imposed.

VI.

CONCLUSION

[62]

I
    would dismiss both the appeal and the cross-appeal. The parties agreed that, in
    the event of divided success, there would be no costs and I would order none.

Released: May 15, 2019

M.L. Benotto J.A.

I agree Paul Rouleau
    J.A.

I agree K. van
    Rensburg J.A.





[1]

Specifically, they challenged the legality of
    sections 12, 13.4, 13.5, 13.17, 17, 21.7, 22.1, 22.2 and 27 of the
Constitution
.



[2]
T
he motion judges finding that the respondents claim
    disclosed a reasonable cause of action in unconscionability was interlocutory.
    However, in the circumstances, the appeal of that finding can be heard in this
    court because of its close connection to the other findings at issue on appeal:
    see
Lax v. Lax
(2002), 70 O.R. (3d) 520 (C.A.), at para. 9.


