nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 367 Date: 2007 10 12 Docket: Q.B.G. No. 943 of 2004 Judicial Centre: Saskatoon BETWEEN: DAVID KIRK TAYLOR and THE SASKATOON CIVIC EMPLOYEES’ UNION LOCAL 59 Counsel: Self for the plaintiff M. J. Torrens and C. G. Veeman for the defendant JUDGMENT R. S. SMITH J. October 12, 2007 Introduction 1) In June, 2004, the plaintiff, an employee of the City of Saskatoon and member of the Saskatoon Civic Employees’ Union, CUPE Local No. 59 (hereinafter the “Union”) commenced this action under the simplified procedure of Part 40 of The Queen’s Bench Rules, seeking judgment for $50,000. 2) The plaintiff’s claim is grounded on a provision of the Union’s by-laws which reads:Article XII - Indemnity Clause CUPE Local 59 shall pay the cost of: 12.1 a) Defending an action or proceeding against Union officer claiming liability on the part of that Union officer for acts or omissions done or made by the Union officer in the course of his/her duties or paying any sum required to settle the action or proceeding; b) Damages and costs awarded against Union officer as result of the finding of liability on the part of that Officer for acts or omissions done or made by the Union officer in the course of his/her actions. This Bylaw shall cover Executive officers of Local 59 only. 3) The plaintiff asserts he is involved in Union related litigation and is thus entitled to the benefit of the indemnity clause. The Union resists the claim asserting various defences, the primary being that the plaintiff misconstrues and misinterprets the indemnity by-law and, more to the point, the Court should decline to become involved in the dispute because the Union is voluntary association and is entitled to resolve its own disputes. 4) While the Union may well make the employees of the City of Saskatoon strong, it does not, apparently, make them all happy. The plaintiff had been president of the Union for roughly 10 years when he was defeated in an election for that office in 2000. recount was requested but the result was confirmed. Several months later, the position of vice-president was in contest and the plaintiff put his name forward. He also lost that bid. 5) Defeat did not rest easily with the plaintiff and he again proffered his name for election for the position of Reclassification Chair, in an election to be held in September, 2000. The third time was charm and he was elected to that office. 6) From the moment the plaintiff was defeated in his bid for the presidency in 2000, his relationship with the executive of the Union became rancorous. The plaintiff was constantly engaging the Union’s various officers in procedural objections and debates. General meetings and sessions of various committees for the most part descended into dysfunction. It reached such point that the Union executive actively considered giving up self-government and placing itself in the hands of CUPE National office. 7) Much was said and written by all the players to the drama which, in due course, gave rise to considerable litigation. The plaintiff, in 2001, initiated defamation action against three Union officers (Q.B. No. 664 of 2001) (the “First Action”). The Union defended and brought counterclaim against the plaintiff for defamation by him against certain Union officers. 8) Litigation of the type brought by the plaintiff was new to the Union. It carried no insurance to cover such costs and, accordingly, it was resolved that an indemnity by-law should be passed to ensure that the officers who had been sued in the First Action had the costs of their defence paid by the Union. Not surprisingly, the plaintiff was vociferous in his objection to the by-law and proposed motions and other procedural barriers. In the end, the by-law outlined in the Introduction was adopted. 9) The Union executive sought assistance from CUPE National office which led to report prepared by CUPE National representative. The report observed at page that: The local’s problems seem to have intensified immediately after the election of Sister Lois Lamon as president of the local. Former President, Brother Dave Taylor, and others have devoted much of their time to making life as difficult as possible for the democratically elected officers. This comment is supported by many documents. 10) The observation by the CUPE National representative did not sit well with the plaintiff. He responded by issuing statement of claim (Q.B. No. 2030 of 2002) (the “Second Action”), naming as defendants the Union, CUPE National office, the author of the report and local Union officer. As with the First Action, the primary complaint of the plaintiff was defamation. 11) In 2003, the plaintiff commenced Q.B. No. 1535 of 2003 (the “Third Action”), again alleging defamation by fellow Union member arising out of an e-mail. 12) In March, 2005, Klebuc J. (as he then was), granted an order directing that the First, Second and Third Actions were to be tried sequentially before the same judge with the evidence in each action to be applied to each of the others. 13) As noted, in June, 2004, the within action (the “Fourth Action”) was commenced by the plaintiff under the simplified Rules claiming $50,000 against both the Union and CUPE National for reimbursement of costs incurred by him in advancing his claims in the First, Second and Third Actions. The plaintiff grounds the Fourth Action on the basis of the indemnity by-law. In July, 2004, CUPE National successfully applied to have the Fourth Action dismissed as against it. Accordingly, the Union is now the sole defendant in the Fourth Action. 14) In addition to clamorous debates at Union meetings and the three civil actions, there was second front opened against the Union by Nadine Schreiner. From the Court file, it is reasonable inference to draw that Ms. Schreiner has joined with the plaintiff in his crusade. 15) Ms. Schreiner sought relief against the Union by way of various applications to the Labour Relations Board under sundry provisions of The Trade Union Act, R.S.S. 1978, c. T-17. All of those applications were unsuccessful. (See: Schreiner v. Canadian Union of Public Employees, Local 59 et al., [2001] Sask. L.R.B.R. 444; Schreiner (Re), [2001] S.L.R.B.D. No. 40 (QL); Schreiner (Re), [2001] S.L.R.B.D. No. 76 (QL); and Schreiner (Re), [2005] S.L.R.B.D. No. 35 (QL)). 16) The applications by Ms. Schreiner to the Labour Relations Board are not relevant to the current application, however, they are illustrative of the shock and awe litigation strategy employed by the plaintiff. 17) The plaintiff now applies under Queen’s Bench Rule 485 for summary judgment. Rule 485(1) provides: 485(1) After the close of pleadings, party may apply with supporting affidavit material either by notice of motion for summary judgment, or application for summary trial. 18) The plaintiff posits that as the merits of his case are self-evident, an immediate judgment against the Union in the amount of $50,000 should be granted. Analysis Appropriate forum 19) The Union submits in its brief: 44. Clearly, given the above-described nature of the membership contract, it would be inappropriate to treat the membership contract as simply an ordinary commercial contract. After all, the membership contract is essentially form of “social contract” establishing form of workplace government. It cannot function if the individual members can simply opt out when convenient for them, by for instance invoking the courts when the democratic process does not produce the results that they desire. It [sic] because of this that the members agree that they will abide by the democratic decision-making processes of the union. 45. By declining to get involved in such disputes, therefore, the Court is merely upholding basic term of the membership contract, without which the union cannot function effectively on behalf of its members. 46. The Union further submits that the case law in relation to the supervision of the affairs of voluntary associations, as well as the principles of statutory interpretation, support the above submissions in terms of the Court not becoming involved in this dispute. 20) Firstly, would observe that for employees of the City of Saskatoon, membership in and payment of dues to the Union is not voluntary. For all practical purposes, s. 36 of The Trade Union Act and the union security provisions of the Collective Bargaining Agreement impose both obligations on all in-scope employees as condition of their employment. As to the larger issue of whether the Court should exercise its jurisdiction over disputes between member and the Union, have benefited from the guidance of the Supreme Court in Berry v. Pulley, [2002] S.C.R. 493, 2002 SCC 40 (CanLII), where the Court observed at para. 48: [48] In light of the above, the time has come to recognize formally that when member joins union, relationship in the nature of contract arises between the member and the trade union as legal entity. By the act of membership, both the union and the member agree to be bound by the terms of the union constitution, and an action may be brought by member against the union for its breach; however, since the union itself is the contracting party, the liability of the union is limited to the assets of the union and cannot extend to its members personally. say that this relationship is in the nature of contract because it is unlike typical commercial contract. Although the relationship includes at least some of the indicia of 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. With this in mind, for ease of reference will refer to the membership agreement between the individual member and the union as contract. [Emphasis added] 21) The core of the dispute in the Fourth Action is whether the plaintiff is entitled to benefit from an indemnity contained in the Union’s by-laws. The dispute distills to an interpretation of the terms of the Union membership contract in sum, the very type of debate contemplated by the Supreme Court in Berry v. Pulley. 22) The defendant also invokes the reasoning in Street v. B.C. School Sports, 2005 BCSC 958 (CanLII), [2005] B.C.J. No. 1523 (B.C. S.C.) (QL). In that case, Silverman J. declined to address the merits of dispute concerning high school athletic association. Silverman J. observed that, as general rule, courts are loathe to become involved in the internal business of voluntary organizations. 23) With all respect to the defendant, this case is very different than Street v. B.C. School Sports. The dispute in the Fourth Action involves contractual debate concerning the meaning and scope of an indemnity clause. This is substantially different from an internecine dispute in voluntary sports organization respecting the disciplining of high school coach over recruiting practices. The analysis in Street v. B.C. School Sports is not germane to the within debate. However, it is worth noting that in that case the Court did exercise supervisory jurisdiction to ensure the process was fair. 24) Accordingly, in the absence of some statutory regime precluding the Court’s involvement, the debate in the Fourth Action is totally appropriate for disposition by the Court. The statutory regime the Court must be sensitive to is The Trade Union Act. That legislation provides the Labour Relations Board with an exclusive domain on many matters dealing with industrial relations. 25) On this point, have sought guidance from the Court of Appeal in McNairn v. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 179, 2004 SKCA 57 (CanLII), (2004), 249 Sask. R. 111 (C.A.). To provide context for the Court of Appeal’s analysis, quote from the judgment the following: [1] The question on this appeal is whether the Court of Queen's Bench has jurisdiction over an action for damages brought against union by one of its members alleging breach of contract by the union in violating the hiring hall rules governing the allocation of jobs among unemployed union members. [2] The action was brought by Rodney McNairn against United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry in the United States and Canada, Local 179. In essence, the statement of claim pleads the following cause of action: Mr. McNairn is welder and member of the Union. The relationship between the Union and its members is contractual and is governed by written set of "Working Rules and Bylaws" constituting terms of the contract between the two. Pursuant to the Rules the Union maintains an unemployment board containing the names of out of work Union members, listing them in the order in which the Union is to dispatch them as jobs become available. In violation of the Rules the Union moved Mr. McNairn's name from the top to the bottom of the board, depriving him of work for which he was qualified, causing him loss, and entitling him to damages. [3] On receipt of the statement of claim the Union applied for and obtained an order striking it out on the ground the Court lacked jurisdiction. At that, Mr. McNairn brought this appeal, contending the order was made in error. 26) At the Queen’s Bench level, the Court concluded that the dispute between the parties, in its essential character, was grounded in sections 25.1 and 36.1 of The Trade Union Act. Therefore, the debate between McNairn and his union fell exclusively within the jurisdiction of the Labour Relations Board. 27) The Court of Appeal was of different view and overturned the Queen’s Bench decision. The Court of Appeal concluded that the debate between McNairn and his union was one which fell within the purview of the Queen’s Bench Court. 28) The Court observed, at para. 34: [34] Were the dispute between the parties grounded in section 25.1, there could be no doubting the Board's exclusive jurisdiction to entertain it. However, the facts as pleaded in the statement of claim do not reveal dispute of that character. They reveal dispute over whether the Union removed Mr. McNairn's name from the top of the unemployment board in breach of its obligations pertaining to the maintenance of the board. The Union's obligation to place the names of its unemployed members on the unemployment board in appropriate sequence did not arise out of its statutory duty of fair representation. Rather, it arose out of the Working Rules and Bylaws.... and further, at para. 38, the Court of Appeal opined: [38] Thus subsection 36.1(1) imposes duty upon union (again correlative to the right thereby conferred upon an employee), to abide by the principles of natural justice in disputes between the union and the employee involving the constitution of the trade union and the employee's membership therein or discipline thereunder. As such, the subsection embraces what may be characterized as "internal disputes" between union and an employee belonging to the union, but it does not embrace all manner of internal dispute. For the subsection to apply, the dispute must encompass the constitution of the union and employee's membership therein or discipline thereunder. And when it does apply, it requires that the principles of natural justice be brought to bear in the resolution of the dispute. [emphasis added] 29) The essential nature of the debate between Taylor and the Union relates to the interpretation of the indemnity clause in the Union by-laws. In that respect, the contest in this case is indistinguishable from the dispute in McNairn. Moreover, the argument between the plaintiff and the Union is even further removed from those which the Labour Relations Board has exclusive jurisdiction. The dispute is, in its essential character, contractual in nature; namely, is the plaintiff entitled to the benefits of the indemnity clause in the Union by-laws? 30) In short, this is precisely the type of internal dispute that is not within the exclusive realm of the Labour Relations Board. The forum for this contest is The Queen’s Bench Court. Accordingly, this Court has jurisdiction to entertain the plaintiff’s claim and his application under Queen Bench Rule 485 for summary judgment. Exhausting internal remedies 31) The defendant also takes the position that the Court should not lend its process to the Fourth Action as the plaintiff has available to him further internal Union appeals. That appeal process is not self-evident in the Union’s by-laws, however the defendant posits that an expansive reading of CUPE National’s by-laws would lead to conclusion that the plaintiff has one last place to plead his position, namely, at the office of the president of CUPE National. 32) do not accept the position advanced by the defendant. The dispute in the Fourth Action revolves around the by-laws of the Union, not CUPE National’s. Nothing in the Union by-laws precludes the plaintiff from seeking relief from the Courts before making final appeal to the CUPE National office. In my view, it would be inequitable to prevent the plaintiff from bringing this application in the absence of clear and enforceable provision excluding his access to the Courts. Meaning of the indemnity clause 33) In advancing his application the plaintiff utilizes number of interpretive twists and turns. The heart of his argument is that because he is engaged in litigation respecting the Union, he is entitled to have his costs paid. He contends that those costs should notionally be set at $50,000. 34) The plaintiff represents himself. He has incurred no legal fees, other than disbursements, but, nonetheless, he asserts he is entitled to $50,000. The figure of $50,000 is proffered by the plaintiff as an appropriate sum as he expects the defendant has spent at least that much defending the four actions. 35) The Union replies that the plaintiff’s interpretation of the by-law is completely counter-intuitive, blatantly disregards the plain wording of same and totally ignores the context in which it was passed. 36) To assist the Court, the Union invokes Gilchrist v. Western Star Trucks Inc., 2000 BCCA 70 (CanLII), (2000), 73 B.C.L.R. (3d) 102 (B.C. C.A.). At para. 17, the Court summarized the traditional approach to the interpretation of contracts as follows: [17] The goal in interpreting an agreement is to discover, objectively, the parties' intention at the time the contract was made. The most significant tool is the language of the agreement itself. This language must be read in the context of the surrounding circumstances prevalent at the time of contracting. Only when the words, viewed objectively, bear two or more reasonable interpretations, may the court consider other matters such as the post-contracting conduct of the parties. 37) In interpreting contractual language, in this case the language of the by-law, it is important to do so in the context of the surrounding circumstances at the time the provision was drafted. In this instance, the Union found that it was being assailed by the plaintiff and drawn into litigation. The Union appropriately felt obligated to protect its officers from actions done in the course of their office that made them the subject of the plaintiff’s, or others, litigation. As result, the executive took steps to pass by-law which would indemnify the officers. observe the by-law is not dissimilar to one that would be found in many organizations and is logical and appropriate step to take in litigious world. 38) It is worth noting that the plaintiff, at the time of the debate concerning the indemnity clause, introduced motion to amend the indemnity by-law so as to exclude the First Action. That motion failed. The only inference to draw is that the members at that meeting knew that they were paying for the cost not only of the defence of the First Action, but also the counterclaim contained in the First Action. 39) The Union submits that there are two key reasons why the plaintiff is not entitled to be indemnified under the indemnity by-law: (a) The Indemnity Bylaw was not intended to be used to initiate actions or proceedings, but rather to defend actions or proceedings. The counterclaim against the Plaintiff is part and parcel of strategy to defend the officers who were sued by the Plaintiff. (b) The Plaintiff was either not an “Executive Officer” at the relevant time or was not acting in the course of his duties as an Executive Officer when he made the comments and published the material for which he is being sued. 40) The Union asserts that it would be clearly wrong and an error in law to interpret the indemnity clause so as to obligate the Union to fund the plaintiff in his activity of suing the Union and its officers. The Union further notes the apparent contradiction in the plaintiff’s claim for reimbursement of costs not incurred. 41) The Union asks that if the Court concludes, as have done, that it has jurisdiction to hear the plaintiff’s application for summary judgment under Queen’s Bench Rule 485, that it consider dismissing the plaintiff’s claim. The Union cites Wait v. Prince Albert (City), 2002 SKQB 374 (CanLII), (2002), 225 Sask. R. 113 (Q.B.), which stands for the proposition that in disposing of summary judgment motion, the Court may, in addition to granting judgment or directing trial, also grant judgment for the defendant by dismissing the action where such dismissal is appropriate. 42) As noted by Gerein C.J.Q.B., (as he then was) in the application by CUPE National to strike it from the Fourth Action: [3] claim should be struck only where it is plain and obvious that it cannot succeed. See The Attorney General of Canada v. Inuit Tapirisat, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; Marshall v. Saskatchewan, Government of, Petz and Adams (1982), 1982 CanLII 2387 (SK CA), 20 Sask. R. 309 (C.A.); and Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.). 43) The pith and substance of the Fourth Action is to compel the Union to provide the plaintiff with war chest for the sole purpose of suing the Union and its officers. It is plain and obvious that the plaintiff’s claim is grounded on an interpretation of the indemnity clause that is so illogical and inconsistent with its plain wording that it cannot succeed. The plaintiff’s claim for reimbursement of costs not incurred is equally incapable of success. 44) The Dickensian character, Mr. Bumble, upon being advised that the law supposes that his wife acts under his direction, exclaimed “if the law supposes that, the law is ass idiot”. Since that time, commentators and pundits of every stripe have embraced the phrase “the law is an ass”. Notwithstanding the best efforts of legislators and judges, expect, from time to time, the law is still an ass. Not this time. 45) The plaintiff’s application for summary judgment is dismissed. Further, the within action brought by the plaintiff is dismissed, in full. As per the agreement between the parties, there will be no order as to costs. J. R. S. Smith
The plaintiff is an employee of the City of Saskatoon and member of the Union. He commenced this claim based on the Indemnity Clause contained in the Union's bylaws. The plaintiff asserts he is involved in Union related litigation and is thus entitled to the benefit of the indemnity clause. HELD: The plaintiff's application for summary judgment is dismissed. The within action is dismissed in full. 1) The essential nature of the debate between the plaintiff and the Union relates to the interpretation of the indemnity clause in the Union bylaws. This is precisely the type of internal dispute that is not within the exclusive realm of the Labour Relations Board. The forum for this contest is the Queen's Bench Court and this Court has jurisdiction to entertain his claim under Queen's Bench Rule 485 for summary judgment. 2) The plaintiff represents himself. He has incurred no legal fees, other than disbursements, but he nonetheless asserts that he is entitled to $50,000. The figure of $50,000 is proffered by the plaintiff as an appropriate sum as he expects the defendant has spent at least that much defending all four actions. 3) It is plain and obvious that the plaintiff's claim is grounded on an interpretation of the indemnity clause that is so illogical and inconsistent with its plain wording that it cannot succeed. The plaintiff's claim for reimbursement of costs not incurred is equally incapable of success.