



COURT OF APPEAL FOR ONTARIO

CITATION: Branch 1 of the Polish National Union of Canada v. Polish National Union of Canada Inc., 2015 ONCA 91

DATE: 20150209

DOCKET: C59015

MacFarland, Hourigan and Benotto JJ.A.

BETWEEN

Branch 1
    of the Polish National Union of Canada,

an
    unincorporated association, led by the individual board members,

Jozeff
    (Joseph) Aleksandrowicz, Henryk (Henry) Kacprzak,

Anna
    Kacprzak, Barthlomiej (Bart) Habrowski, and Antoni Kantor

Appellants

(Applicants)

and

Polish
    National Union of Canada Inc., and Polish National Union of

Canada,
    and Bogan Adamczak, Stanislawa (stella) Adamczak, Euggeniusz

Boryszko,
    Danuta Boryszko, Bogus Law (Jack) Bukin, Danuta Bukin,

Jerry Chalubinski,
    Jan Cylke, Jan Cuba, Stanislaw Godzisz, Jan

Komor,
    Andrezej Legends, Josef Malexcki, Wieslaw Magiera, Iwona

Rebiszewski,
    Stefan Skulski, Stanislaw (Stan) Szustak, Marek Urbaniak,

Grzegorz
    (Greg) Wasniewski

Respondents

(Respondents)

James F. Diamond, for the appellants

Ronald S. Segal and Maria Constantine, for the
    respondents

Heard and released orally: January 29, 2015

On appeal from the order of Justice Michael A. Penny of
    the Superior Court of Justice, dated May 28, 2014.

ENDORSEMENT

[1]

The appellants appeal the judgment of the application judge and argue
    essentially that he failed to deal with all of the issues that were before him.
    This litigation arises as the result of a disagreement between the Branch and
    the Union over the ownership and the use of certain property.

[2]

Each side brought an application competing applications as described
    by the application judge and the relief generally sought by each of the parties
    is summarized in the first four paragraphs of the reasons.

[3]

There were two central issues. The first was the ownership of the
    properties where Branch 1 had been meeting for many years and the second was
    described as governance issues.

[4]

The application judge decided the property issue and no appeal is taken
    from that decision. On the governance issues, the court determined that the
    appellants had not been afforded natural justice at a special meeting called by
    the president of the HEB on February 15, 2013. The appellants asked the court
    to invalidate the actions taken by the Union at that meeting as follows:

1)  the removal of Aleksandrowicz as a member
    and officer of the Branch;

2) the dissolution of Branch 1 and the
    termination of membership in the         Union of all Branch 1 members;

3) the establishment of Branch 26 as the
    successor to Branch 1.

[5]

The court quashed the decision to strip Aleksandrowicz of his membership
    and his office and it quashed the decision to dissolve Branch 1 and invalidated
    the termination of all Branch 1 members and the purported replacement of
    Branch 1 with the successor Branch 26.

[6]

Before the application was heard, the appellant sought an injunction to
    prevent the Union from holding its national convention on December 14, 2013.
    Before this date, there had been some negotiations between the parties, a
    mediation attempt that unfortunately was unsuccessful and the convention had
    been adjourned to this date.

[7]

The motion proceeded before Brown J. on December 12, 2013, and his
    reasons refusing the injunction were released the next day. The agenda for the
    proposed business that would be conducted at that meeting was before the court
    and is referenced in para.  31 of the motion judges reasons.  At para. 47 of
    his reasons, the motion judge said:

Consequently, while I am not prepared to grant a broad
    injunction restraining the Union from holding its National Convention tomorrow,
    I do order that the Convention may only proceed subject to the following
    condition  although the Union can conduct the general business and proceed to hold
    the various elections described in its agenda, the Union cannot otherwise
    conduct any business or pass any resolution concerning any of the issues
    described in the prayer for relief
in the

Unions notice of
    application
.  (Emphasis added.)

[8]

I emphasize his words in the Unions notice of application. The order
    did not preclude anything else. The convention proceeded, the elections were
    held as outlined in the agenda.

[9]

In this court, the appellants argue that their victory before Penny J.
    is a hollow one because he did not take the further step and invalidate all of
    the actions taken at the national convention in December 2013. They say that
    because of the actions taken by the HEB in February of 2013 where their
    membership was effectively terminated, they were precluded from participation
    in the convention held in December. In the final result, those actions had all
    been quashed and so too they say should the business conducted at the national
    convention which they couldnt participate in because of the actions taken in
    February.

[10]

The
    application judge in his reasons noted that both sides had submitted draft
    forms of judgment that raised collateral issues that were not addressed in  argument.
    The appellants say invalidation of the elections held at the national
    convention were not collateral and this issue was put before the motion judge. 
    There are two problems with this argument.

[11]

First,
    the application judge in his reasons specifically states that other than the
    matters he did deal with the other matters raised in the draft forms of
    judgment were collateral and because they were not specifically addressed he
    would not make orders in relation to them. If as the appellants now argue these
    matters were specifically addressed, then the obligation was to return to the
    application judge and seek adjudication on those issues not to raise it in this
    court by way of appeal.

[12]

Second,
    the order of Brown J. specifically permitted the Union to carry on with the
    national convention and the elections as specifically set out in the agenda
    which the motion judge recited in his reasons as described above. That order
    was not appealed and the elections proceeded as authorized by it. The damage
    has been done and the irreparable harm foreseen by the motion judge had occurred,
    yet the injunction did not issue and the application judge stated the matter to
    be collateral and not specifically addressed.

[13]

In
    these circumstances, the appellants cannot succeed. Their remedies were to
    attempt to appeal the refusal to grant them an injunction to prevent the
    convention being held and failing that to put the issue of the validity of
    those elections held at that time front and centre and squarely before the
    application judge. This court has no original jurisdiction and in these circumstances,
    the appeal must be dismissed.

[14]

For
    oral reasons given, the appeal is dismissed. Costs to the respondent fixed in
    the sum of $24,832.76 inclusive of disbursements and HST.

J.
    MacFarland J.A.

C.W.
    Hourigan J.A.

M.L.
    Benotto J.A.


