



COURT OF APPEAL FOR ONTARIO

CITATION: Lawrence v. International Brotherhood of Electrical
    Workers

(IBEW) Local 773, 2017 ONCA 321

DATE: 20170420

DOCKET: C62621

Sharpe, Lauwers and Hourigan JJ.A.

BETWEEN

Pamela Lawrence

Plaintiff (Respondent)

and

International Brotherhood of Electrical Workers
    (IBEW) Local 773, Karl Lovett, Ken Gelinas, Jeff McPherson, Mark Stobbs, Sean
    Bristow, Robert Duby, Norm Ball, and Fred Bloomfield

Defendants (Appellants)

Dan Shields and Brandin OConnor, for the appellant

Robert D. Reynolds, for the respondent

Heard: February 28, 2017

On appeal from the order of Justice Pamela L. Hebner of
    the Superior Court of Justice, dated August 18, 2016.

Sharpe J.A.:

[1]

The issue on this appeal is whether a statement
    of claim improperly naming a trade union as a defendant, contrary to the
Rights
    of Labour Act
, R.S.O. 1990 c. R.33, s. 3(2), may be
    amended after the expiry of the governing limitation period by obtaining a
    representation order to make individual co-defendants, already named,
    representatives of the members of the trade union local.

BACKGROUND

[2]

Pamela Lawrence, the respondent in this appeal,
    was terminated from her employment with the appellant, the International
    Brotherhood of Electrical Workers, Local 773 (Local 773). She brought this
    action for damages for wrongful dismissal, naming Local 773 as defendant. She
    subsequently obtained a consent order adding the individual appellants, all
    directors of Local 773, as defendants, and amended the statement of claim to
    plead that the individual respondents were jointly and severally liable for her
    claim as against Local 773.

[3]

In its statement of defence, Local 773 pleaded
    that as a trade union, it could not be named as a party. It relied on the
Rights
    of Labour Act
, s. 3(2) which provides that:

A trade union shall not be made a party to any
    action in any court unless it may so be made a party irrespective of this Act
    or of the
Labour Relations Act
.

Local 773 reiterated that position in
    its amended statement of defence, filed after the joinder of the individual
    defendants.

[4]

No doubt, at that stage the respondent should
    have taken the required steps to amend the proceedings by way of a
    representation order under r. 12.07. The question this court must now answer is
    whether, in the circumstances of this case, the respondents failure to do so
    prior to the expiration of the limitation period is fatal to her claim as
    against Local 773.

[5]

The action proceeded through the normal discovery,
    mandatory mediation and pre-trial conference phases. Local 773 and the
    individual appellants were all represented by the same counsel. A
    representative of Local 773 was produced and examined for discovery. The action
    was set down for trial. The appellants participated in all of these steps
    without reiterating the objection made in their statement of defence that Local
    773 was not a suable entity.

[6]

After the expiry of the two-year limitation
    period, the appellants moved under r. 21 for an order dismissing the action on
    the ground that Local 773 was not a suable entity. They argued that the only
    way a trade union could be sued was by way of a representation order pursuant
    to r. 12.07, under which the court may authorize one or more individuals to defend
    a proceeding as representatives of the members of the trade union. The
    appellants also argued that the individual defendants were not personally
    answerable for the respondents claim.

[7]

The appellants motion to dismiss the action was
    dismissed: 2015 ONSC 5817. The motion judge ruled that the respondents had
    failed to bring their r. 21.01(1)(b) motion to strike the statement of claim on
    the ground that it discloses no reasonable cause of action in a timely manner.
    They were not precluded by the passage of time from seeking to have the action
    stayed or dismissed pursuant to r. 21.01(3) on the ground that the defendant
    does not have the legal capacity to be sued. However, he refused to grant that
    request as he concluded that the issue of whether the defendant has the legal
    capacity to be sued was unsettled in the jurisprudence and that the matter
    should proceed to trial.

[8]

On that motion, the respondent did not bring a
    cross-motion asking for a representation order but she advanced that request in
    her factum. The motion judge refused to make a representation order in the
    context of the appellants motion and suggested that the prospect of success on
    a motion seeking that relief was doubtful given the limitations issue. The
    appellants motion to the Divisional Court for leave to appeal the dismissal of
    the r. 21 motion was dismissed: 2016 ONSC 497.

[9]

The respondent then brought a successful motion
    pursuant to r. 12.07 for the order that is the subject of this appeal, granting
    her leave to amend her statement of claim to add the individual appellants as
    representatives of all the members of Local 773. The motion judge ruled that
    the order the respondent sought was properly characterized as a motion to
    correct an error in the title of proceedings under r. 5.04(2), which provides
    that:

At any stage of a proceeding the court may by
    order add, delete or substitute a party or correct the name of a party
    incorrectly named, on such terms as are just, unless prejudice would result
    that could not be  compensated for by costs or an adjournment.

[10]

The motion judge rejected the argument that the result of a
    representation order would be to add all of the individual members of Local 773
    as parties to the action, She  found that the union is, by definition, the sum
    of its members (para. 16) and, in this case, the union was already named as a
    defendant. The motion judge also took into account what she described as the
    appellant unions tactical conduct, having participated in the action until
    the limitation period had expired and only then moving to dismiss the action in
    an attempt to avoid a determination of the plaintiffs claim on its merits
    (para. 21).

[11]

The appellants appealed the motion judges
    ruling to this court. The respondent moved to quash this appeal on the ground
    that the order is interlocutory and therefore not within the jurisdiction of
    this court. The panel scheduled to hear the motion to quash on January 20, 2017
    adjourned that motion to this panel on the ground that that the issue of
    whether the order is final or interlocutory was closely related to the merits
    of the appeal.

ISSUES

[12]

The central issue before us is whether the
    motion judge erred by making a representation order authorizing the individual
    defendants to defend the proceeding as representatives of all the members of
    Local 773 after the expiry of the limitation period.

ANALYSIS

[13]

With respect to the motion to quash, given the
    earlier panels decision, the parties proceeded on the basis that they were to
    address the merits of the appeal in any event. I add that it appears to me that
    as the appellants were faced with an order that removed a substantive defence,
    they were entitled to treat is as a final order for the purposes of appeal:
Ball
    v. Donais
(1993), 13 O.R. (3d) 322 (C.A.).

[14]

The appellants argument that the motion judge
    erred in making a representation order rests upon two propositions. First, they
    say that the claim naming Local 773 was, in law, a nullity or, in other
    words, that it has no legal effect. They argue that, as Local 773 was named as
    a party contrary to the
Rights of Labour Act
,
    there was nothing to amend when the representation order was made. The second
    and related proposition is that the effect of the representation order was to
    add all the members of Local 773 as defendants to the action. That was improper,
    they submit, as the limitation period had expired.

[15]

It is well established that the
Rights
    of Labour Act
precludes a trade union from being named as
    a party and that an action brought in violation of the Act will be struck or
    dismissed:
Nippissing Hotel Ltd. et al. v. Hotel & Restaurant
    Employees & Bartenders International Union et al
.,
    [1963] 2 O.R. 169 (H.C.J.);
Dover Corp. (Canada) Ltd. v. CAW-Canada,
    Local 27
, [1996] O.J. No. 2319 (Gen. Div.);
Active
    Canada Inc. v. Formosa,
[2002] O.J. No. 2551 (S.C.J.);
Burley 
    v. O.P.S.E.U.
, [2004] O.J. No. 4431 (S.C.J.)

[16]

The proper way to sue a trade union is to obtain
    a representation order pursuant to r. 12.07, authorizing one or more members of
    the union to defend a proceeding on behalf of all the other members. Rule 12.08
    facilitates a similar procedure by providing that a representative order may be
    made for members of an unincorporated association or trade union to bring a
    proceeding on behalf of all the members where a class action would be unduly
    expensive or inconvenient.

[17]

The appellants rely on two trial level decisions
    where an amendment to a claim by way of obtaining a representation order was
    refused on the ground that the action naming a trade union contrary to the
Rights
    of Labour Act
was a nullity. In
McGhie et
    al. v. Canadian Air Line Flight Attendants Association et al
. (1986), 58 O.R. (2d) 333 (H.C.J.), union members brought an
    application challenging the merger of their union with another union. Both
    unions were named as respondents. Gray J. held that the
Rights of
    Labour Act
applied to applications as well as actions. He
    refused a request for an amendment adding certain individuals as
    representatives of all members of the unions except the applicants on the
    ground that this application is a nullity so that there is nothing before me
    which can be amended (para. 37). In
International Alliance of Stage
    Employees, Local 58 v. Canadian Broadcasting Corporation
,
    [1972] 1 O.R. 161 (H.C.J.), a trade union, named as plaintiff, sought an
    interlocutory injunction. The defendant objected that the trade union was not
    an entity capable of commencing an action and the plaintiff responded with a
    request for an amendment by way of a representation order. Osler J. dealt with
    and dismissed the motion on the merits but also stated that, as the plaintiff
    was not an entity capable of suit, the writ commencing the action was a
    nullity and there was nothing before him that could be amended.

[18]

Neither decision is binding on this court and,
    in my view, the label nullity is inapt in the circumstances of this case for
    three reasons.

[19]

First, Local 773 did not treat the claim against
    it as a nullity. The union retained counsel, filed a statement of defence, and fully
    participated in the discovery process, a mandatory mediation and a pre-trial
    conference. The union did plead that it could not be made a party to the action
    and asked that the claim be dismissed on that account, but the statement of
    defence says nothing about nullity and goes on to plead substantive defences.
    I find it difficult to reconcile Local 773s normal litigation activity on this
    matter over the course of more than two years with its argument that the action
    against it was so seriously flawed as to constitute a nullity.

[20]

In my view, the motion judge correctly took
    Local 773s conduct of the action into account when deciding whether to grant
    the amendment and to make a representation order. I agree with the motion judge
    that Local 773s conduct was a carefully designed tactical ploy to avoid having
    the respondents claim adjudicated on the merits. I see no reason to reward
    that conduct.

[21]

Second, the concept of nullity expressed in the two trial
    decisions to which I have referred is difficult to reconcile with modern
    principles of civil procedure. There may well be proceedings that are so
    irregular as to qualify as nullities but the
Rules of Civil
    Procedure
suggest that those proceedings should be
    confined to a very narrow range. The Rules aim, in the words of r. 1.04(1), to
    secure the just, most expeditious and least expensive determination of every
    civil proceeding on its merits. The courts are directed by r. 2.01(1)(a) to
    grant all necessary amendments or other relief, on such terms as are just, to
    secure the just determination of the real matters in dispute. Treating procedural
    flaws or defects as fatal nullities, incapable of amendment, is inconsistent
    with that approach. As Kerans J.A. put it in
Bridgeland
    Riverside Community Association v. Calgary (City)
(1982)
,
135
    D.L.R. (3d) 724 (Alta. C.A.), at p.
730:

no concept is more sterile than that which says that a
    proceeding is a nullity for failure of compliance with a procedural rule and
    without regard to the effect of the failure.

no defect should vitiate a proceeding unless, as a result of
    it, some real possibility of prejudice to the attacking party is shown, or
    unless the procedure was so dramatically devoid of the appearance of fairness
    that the administration of justice is brought into disrepute.

[22]

Third, there is the question of how we should
    interpret and apply the
Rights of Labour Act
in the contemporary context of the labour relations regime. The respondent
    could not obtain a judgment against Local 773 in the face of the Act, but does
    that mean that we should treat an action naming Local 773 as a defendant as
    something that simply does not exist in law? Can it be that the
Rights
    of Labour Act
, s. 3(2), designed in the 1940s to protect
    unions against employers in the early days of trade unionism, should be rigidly
    interpreted in the modern era to protect a trade union against a claim for
    wrongful dismissal by one of its own employees?

[23]

The judgment of Goudge J.A. in
P.I.P.S.C.
    v. Canada (Attorney General)
(2003), 62 O.R. (3d) 682 (C.A.)
    puts the
Rights of Labour Act
in its proper
    historical context. The Act was passed in 1944, a time when trade unions were
    first emerging as important institutions, and the Act offered some protection
    to trade unions and the fledgling system of labour relations of which they were
    part (para. 17). In the words of the appellants own factum, the Act was
    designed to protect unions from the unforgiving common law, which viewed trade
    unionism as an unlawful combination in restraint of trade. Since that time,
    trade unions and collective bargaining have undergone an extraordinary
    evolution and for unions to be able to properly fulfill the functions now
    expected of them, courts must treat them as juridical entities (
P.I.P.S.C.
, at para. 27).

[24]

In
Berry v. Pulley
, 2002 SCC 40, [2002] 2 S.C.R. 493, the Supreme Court of Canada
    recognized unions as entities which possess a legal personality and which are
    endowed, subject to express legislative provisions to the contrary, with legal
    status to sue and be sued in their own name (paras. 3 and 46). The
s.
    3(2)
remains on the books and it is an express legislative
    provision providing that an Ontario trade union may not be named as a party in
    an Ontario proceeding, although in
P.I.P.S.C.
the
    application of s. 3(2) was narrowly interpreted to permit unions in Ontario that
    derive their status from non-Ontario legislation to be named as parties. In the
    words of Goudge J.A., s. 3(2) is something of an archaic legislative
    provision (
P.I.P.S.C.
, at
para. 15). While
    that does not mean the Act can or should be ignored, it is a factor to be taken
    into account when the court is asked to use another archaic concept, that of
    nullity, to characterize the effect of naming a trade union as a party.
    Irregularity or misnomer, certainly; but nullity, no.

[25]

The appellants place particular reliance on
Pal
    v. Powell
(2009), 303 D.L.R. (4th) 601 (Ont. Div. Ct.). In
    that case, the plaintiff sued several union members for personal injuries
    allegedly sustained during an encounter with a picket line of striking workers.
    After the two-year limitation period had expired, the plaintiff sought a
    representation order pursuant to r. 12.07 to permit the claim to be advanced
    against the individual defendants on behalf of all members of the union. The
    Divisional Court allowed an appeal from the representation order granted by the
    motion judge, holding that the effect of the order was really to add the Union
    because all the members become subject to the results of the action and that
    new parties could not be added after the limitation period had expired (para.
    14).

[26]

In my view,
Pal
is distinguishable on the ground that, in that case, the union was not initially
    named as a defendant. The action proceeded against individual union members and
    it was only after the limitation period expired that an attempt was made to add
    the union by way of a representation order. In the present case, however, the
    union was named as a party from the outset. It was improperly named, no doubt,
    but named nonetheless.

[27]

I agree with the motion judge that, as an unincorporated
    association, a union is the sum of its members. The members of Local 773
    would have known that the respondent intended to name the legal entity that
    they comprised as members. Local 773 possesses a legal personality. It cannot
    be sued in its own name but it can be sued by way of a representation order. I agree
    with the motion judge 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). While the form of the
    order states that the amendment is to add the individual Defendantsas
    representatives of all members of the DefendantLocal 773, the individual
    defendants were already named and all other members of the union were on notice
    that the respondent intended to sue the entity they collectively comprise. In
    my view, this brings the case squarely within the principle articulated by this
    court in
Lloyd v. Clark
, 2008 ONCA 343, [2008] O.J. No.
    1682, at para. 4:

The case law amply supports the proposition that 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 [citations omitted].

See also
Stechyshyn v.
    Domljanovic,
2015 ONCA 889, 129 O.R. (3d) 236, at para. 20:

The law treats the naming of the correctly named defendant as a
    substitution for the incorrectly named defendant and not the addition of a new
    party or the initiation of the action against the correctly named defendant.

[28]

Here, the respondent intended from the outset to
    name her employer as a defendant.
Local 773 and its
    members knew well before the expiry of the limitation period that the
    respondent had brought an action claiming damages for wrongful dismissal
    against the entity that had been her employer. Both Local 773 and the same individual
    parties named as representatives of the members participated in the action for
    over two years. The action is now ready for trial. No further procedural steps
    would be required as a result of the representation order and the appellants
    would suffer no prejudice as a consequence of the representation order.

[29]

I have now had the benefit of reading the dissenting reasons
    of my colleague Hourigan J.A. and offer the following comments on some of the
    authorities he cites.

[30]

In addition to the cases cited by Local 773 and discussed
    above, my colleague cites
Chapman v. 3M Canada Inc.
, [1995] O.J. No.
    4564 (Gen. Div.), affirmed (1997), 30 C.C.E.L. (3d) 102 (Ont. C.A.) and
Lukings
    v. International Molders and Allied Workers Union, Region #8
(1989), 33 O.A.R. 342 (Div. Ct.)
for the proposition that a
    failure to obtain a representation order necessarily renders any claim against
    a union a nullity. However, neither case uses the term nullity.
Chapman
involved a unionized employee attempting to avoid the exclusive statutory
    arbitration regime governing the claim under which the proceeding in question
    ought to have been brought. Here we have a claim that may be properly brought
    in the Superior Court. In
Lukings
, union employees sued for wrongful dismissal
    naming as defendants individual members as trustees of the employer union. The
    Divisional Court dismissed the action and cited
Wilkes v. Teichmann et al
.,
    (1985), 50 C.P.C. 151 (Ont. C.A.), where this court expressly declined to
    pronounce on the application of the
Rights of Labour Act
to the
    circumstances of that case. In
Wilkes
, this court held that the issue
    should be determined after a trial on the evidence and upon considering the
    scope of s. 3(2) of the
Rights of Labour Act
especially in relation to
    matters other than those pertaining to union-employer relations (p. 153).

[31]

Hourigan J.A. also cites cases involving the notice
    requirement found in the
Proceedings Against the Crown Act
, R.S.O.
    1990, c. P.27. I note that this court has expressly declined to adopt the
    strict approach advocated by my colleague to the interpretation of that
    requirement. In both
Mattick Estate v. Ontario (Minister of Health)
(2001),
    52 O.R. (3d) 221 (C.A.), at para. 14, and
Miguna v. Ontario (Attorney
    General)
(2005), 262 D.L.R. (4th) 222 (Ont. C.A.), this court took a
    purposive approach to the notice requirement and allowed the claims to proceed
    despite arguably inadequate notice, on the basis that there was no prejudice to
    the Crown. In
Toronto v. Longbranch Child Care
, 2011 ONSC 548, [2011]
    O.J. No. 738, the claim was struck by the Superior Court of Justice as a
    nullity for failure to give notice to the Crown. However, in that case, before
    filing a statement of defence, the Crown moved to strike the claim under r. 21,
    conduct consistent with the position that the action was a nullity.

[32]

My colleague also cites case law on the need to avoid
    uncertainty with respect to the limitation of actions. On that point, I note
    that in
Markel Insurance Company of Canada v. ING Insurance Company of
    Canada
, 2012 ONCA 218, (2012) 109 O.R. (3d) 652,

the principle of
    certainty with respect to discoverability under the
Limitations Act, 2002
,
    S.O. 2002, c. 24, Sch. B was invoked by this court in precisely the context of
    preventing a party from engaging in tactical litigation strategies like that of
    Local 773 designed to undermine another partys substantive rights.

DISPOSITION

[33]

I would dismiss motion to quash and the appeal
    with costs to the respondent fixed in the amount agreed to by the parties,
    $12,000 inclusive of disbursements and taxes.

Robert J. Sharpe
    J.A.

I agree. P. Lauwers
    J.A.





Hourigan J.A. (Dissenting):

[34]

I have had the opportunity to
    consider the reasons of my colleagues. I am unable to agree with their analysis
    or their disposition of the appeal.

[35]

Section 3(2) of the
Rights
    of Labour Act
, R.S.O. 1990, c. R.33 (the
    Act) provides:

A trade union shall not be made a
    party to any action in any court unless it may be so made a party irrespective
    of this Act or of the
Labour Relations Act
.

[36]

There are certain indisputable
    legal principles relevant to this appeal that bear repeating. First among them
    is that with the enactment of s. 3(2) of the Act in 1944, the only way to
    commence a civil proceeding against an Ontario union is to obtain a
    representation order. An action brought against a union without the benefit of
    a representation order is a nullity:
Re McGhie et al. and Canadian
    Air Line Flight Attendants Association et al.
(1987), 58 O.R. (2d) 333 (H.C.), at pp. 340-342. Such an action will be
    struck or dismissed:
Nippising Hotel Ltd. et al. v. Hotel &
    Restaurant Employees & Bartenders International Union et al.
, [1963] 2 O.R. 169 (H.C.J.), at pp. 170-176;
Lukings
    v. International Molders and Allied Workers Union, Region # 8
(1989), 33 O.A.C. 352 (Div. Ct.), at paras. 4-18; and
Chapman
    v. 3M Canada Inc
., [1995] O.J. No. 4564
    (Gen. Div.), at paras. 57-60, affd, (1997), 30 C.C.E.L. (3d) 102 (Ont. C.A.).

[37]

Second, in the seminal case of
Berry
    v. Pulley
, 2002 SCC 40, [2002] 2 S.C.R.
    493, the Supreme Court of Canada determined that trade unions have the capacity
    to sue or to be sued. See also
Fullowka v. Pinkertons of Canada
    Ltd.
, 2010 SCC 5, [2010] 1 S.C.R. 132, at
    para. 118. However, this capacity only exists absent express legislative
    provisions to the contrary:
Berry
, at para. 46.

[38]

Third, s. 3(2) of the Act is an
    express legislative provision to the contrary. Accordingly,
Berry
did not change the law with respect to suing Ontario
    unions, and a representation order under r. 12.07 of the
Rules of
    Civil Procedure
, R.R.O. 1990, Reg. 184, is
    still required:
Guilbeault v. Cornellier
, [2002] O.J. No. 4415 (S.C.), at para. 3;
Active Canada Inc.
    v. Formosa
, [2002] O.J. No. 2551 (S.C.), at
    para. 49; and
Burley v. Ontario Public Service Employees Union
, [2004] O.J. No. 4431 (S.C.), at para. 51. In
Pal
    v. Powell
(2009), 303 D.L.R. (4th) 601, at
    para. 11 (Ont. Div. Ct.), the Divisional Court stated:

The purpose of the Representation
    Order under Rule 12.07 in this case is to bind all members of the Union to any
    finding of liability against the representational defendants. Practically
    speaking, that is the only way a Union can be sued in Ontario. Each member of
    the Union becomes bound by any judgment in the action.

[39]

In
Professional
    Institute of the Public Service of Canada v. Canada (Attorney General)
(2002), 62 O.R. (3d) 682 (C.A.) (
P.I.P.S.C.
)
, at para. 45,
    Goudge J.A. expressed the view in
obiter
that there is a need for legislative reform in this area. However, he
    did not challenge the notion that s. 3(2) does not permit a suit against an
    Ontario trade union without a representation order.

[40]

Thus, the law in Ontario has been
    clear for over seventy years that without a representation order a union cannot
    be sued. In this case, the respondent did not obtain such an order

before the limitation period expired. For that reason,
    by operation of s. 3(2) of the Act, no suit could be brought against
the International Brotherhood of Electrical
    Workers, Local 773 (Local 773)
within
    the limitation period. The motion judge was obliged to strike the statement of
    claim as against local 773.



[41]

I am not persuaded by the
    arguments proffered by the majority that there is any principled basis to
    conclude that this case should not be subject to the well-established rule
    prohibiting suits against unions absent a representation order. I will now
    consider each of the arguments supporting the majoritys decision.

[42]

The majority view the concept of
    nullity as being difficult to reconcile with modern principles of civil
    procedure. However, the concept of an action being a nullity if it is brought
    in violation of a statutory requirement is not at all foreign to contemporary
    Ontario law. To take one example, s. 7(1) of the
Proceedings Against
    the Crown Act
, R.S.O. 1990, c. P.2,
    prohibits a claim from being commenced against the Crown unless the claimant
    has given notice to the Crown at least sixty days before commencing the claim.
    This court has held that failure to comply with this section renders the
    action a
nullity
:
Mattick Estate v. Ontario (Minister of
    Health)
(2001), 52 O.R. (3d) 221 (C.A.), at
    para. 21 (emphasis added). See also
Miguna v. Ontario (Attorney
    General)
(2005), 262 D.L.R. (4th) 222 (Ont.
    C.A.), at paras. 7-8; and
Toronto (City) v. Longbranch Child Care
, 2011 ONSC 548, at para. 38. Although courts have
    been flexible in defining what a claimant against the Crown must do to give
    adequate notice under s. 7(1), where notice is inadequate courts continue to
    treat the concept of a claim against the Crown being a nullity as a viable and
    legally legitimate one.

[43]

Relying on r. 2.01 of the
Rules
    of Civil Procedure
and the Alberta Court of
    Appeals decision in
Bridgeland Riverside Community Association v.
    Calgary (City
) (1982),
135 D.L.R. (3d) 724 (Alta. C.A.),
the majority asserts that
treating procedural flaws or defects as fatal
    nullities, incapable of amendment, is

inconsistent with the
    courts obligation to secure the just determination of the matters in dispute
.

[44]

This conclusion ignores the
    critical fact that
the respondents
    failure to obtain a representation order in time was
not a mere procedural defect or flaw.
The need for a representation order is a substantive
statutory requirement
; without one, s. 3(2) expressly bars suits against unions.
The requirement may be cumbersome, and it has been
    subject to criticism
(
see, for example,
P.I.P.S.C.
, at para. 45; and

Kiewning v. Communications, Energy and Paperworkers Union of
    Canada
, 2011 ONSC 712, at para. 32
),
but that does
    not
undermine
its validity.

[45]

The majoritys reliance
on r. 2.01 is also misplaced. That sub-rule is
    limited to situations where there has been non-compliance with
Rules
    of Civil Procedure
. It cannot operate to
    excuse non-compliance with a
statute
.

[46]

Both the reasons of the majority
    and the endorsement of the motion judge are also critical of the appellants
    conduct in this case. The majority finds that Local 773 has engaged in a carefully
    designed tactical ploy to avoid having the respondents claim adjudicated on
    the merits.

[47]

It is important at this stage to
    review the chronology. The respondent sued Local 773 and in its statement of
    defence Local 773 pleaded and relied upon the Act. Instead of moving for a
    representation order so as to avoid the operation of the Act, the respondent
    brought a motion for an
order
    amending her statement of claim to add the individual appellants as defendants.

[48]

Thus, once the respondent was
    served with Local 773s statement of defence, she was put on notice of her
    failure to comply with the Act. This was approximately twenty months before the
    limitation period expired. The respondent subsequently took an incorrect step
    in an attempt to remedy her non-compliance with the Act. At some point in
    litigation, a party must live with the consequences of their action or
    non-action.

[49]

In any event, the alleged desire
    of the appellants to avoid a determination on the merits is hardly unique to
    this case. Sometimes parties exploit advantages that the law offers them in a manner
    that may offend our sense of fairness. Sometimes the application of the law
    leads to harsh results. But that does not mean that courts can disregard the
    will of the legislature and ignore a clear statutory requirement on the basis
    that its application would appear to be unfair.

[50]

The decision of the motion judge
    and the reasons of my colleagues inject a degree of uncertainty into the law.
    As a result of the majoritys decision, the statutory requirement for a
    representative order is no longer absolute, but dependent on the equities and
    circumstances of any given case. This court has stated that uncertainty is
    particularly unacceptable when it comes to the law of limitation of actions:
Markel
    Insurance Co. of Canada v. ING Insurance Co. of Canada
, 2012 ONCA 218, 109 O.R. (3d) 652, at para. 34.

[51]

Worse, the method chosen to
    achieve that result is ill-suited for its purpose. The motion judge
found that the order the respondent sought
    was properly characterized as a motion to correct an error in the title of
    proceedings under r. 5.04(2). In my view, she erred in so finding
. This is not a misnomer case, as there is no question
    that Local 773 was correctly named. This is a case where there has been
    non-compliance with a statutory requirement and a new party has been added. One
    need only look to the form of the order granted by the motion judge. She did
    not make an order under r. 5.04(2); rather she made a representation order.

[52]

Finally, the reasons of the majority
    raise the issue of how s. 3(2) of the Act should be applied
in the contemporary context of the labour
    relations regime.
The majority take the
    position that legislation enacted in the 1940s for the protection of trade
    unions should not serve to bar an employees wrongful dismissal suit in the
    present case. They reason that the law is archaic and that this fact should be
    borne in mind when considering whether the respondents action is a nullity.

[53]

I disagree with that analysis. It
    is not open to courts to ignore legislation on the basis that they feel it is
    outmoded or archaic. Such an approach is contrary to the basic rules of our
    parliamentary democracy because it usurps the legislative role of government.
    This, of course, is a role for which courts are untrained and unaccountable.
    This court expressed a desire for legislative reform of s. 3(2) of the Act in
P.I.P.S.C.
; it does not have the authority to make the desired
    change itself by declining to apply the provision.

[54]

The majority also reasons that because
    s. 3(2) is, in their view, archaic, that is a factor that can be taken into
    account in the analysis of whether
the respondents claim is a nullity. I disagree. Subsection 3(2) is not a
    mere factor to be balanced against others; it either applies or it does not. If
    it applies, and under the current state of law there is no doubt that it does,
    then that ends the analysis.


[55]

For
    these reasons, I would allow the appeal and strike the respondents statement
    of claim.

Released:
RJS APR 20
    2017


C.W. Hourigan
    J.A.


