Alliance de la Fonction publique du Canada v. Procureur général du Canada (2002) 62 O.R./R.J.O. 695

  • Document:
  • Date: 2018

Public Service Alliance of Canada v. Attorney General of Canada*

Professional Institute of the Public Service of Canada v.

Attorney General of Canada Halayko v. Attorney General of Canada

[Indexed as: Public Service Alliance of Canada v. Canada (Attorney General)]

62 O.R. (3d) 682

[2002] O.J. No. 4831

Docket Nos. C37096, C37166 and C37158

Court of Appeal for Ontario,

Goudge, Simmons and Gillese JJ.A.

December 17, 2002

 

*Vous trouverez la traduction franaise de la dcision ci-dessous 62 O.R. (3d) 695.

Civil procedure — Parties — Legal capacity — Three trade unions certified pursuant to Public Staff Relations Act and other employee organizations which were not certified trade unions bringing actions challenging federal legislation which authorized federal government to deal as it wished with surpluses in pension plans covering federal government employees — Section 3(2) of Rights of Labour Act not preventing plaintiffs from bringing action in their own names

— Public Service Staff Relations Act, R.S.C. 1985, c. P-35

— Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3(2). [page683]

 

Civil procedure — Parties — Standing — Trade unions having standing to bring actions challenging federal legislation which authorized federal government to deal as it wished with surpluses in pension plans covering federal government employees.

The plaintiffs were trade unions. Three of the plaintiffs were certified under the Public Service Staff Relations Act. The others were not certified trade unions but represented the interests of their members in employment matters. The plaintiffs brought actions challenging federal legislation which authorized the federal government to deal as it wished with the surpluses in the pension plans covering employees of the federal government and the R.C.M.P. The defendant successfully moved for an order striking the plaintiffs from the title of the actions. The motions judge held that s. 3(2) of the Rights of Labour Act prevented the plaintiffs from suing in their own names in the Ontario courts. Section 3(2) states, “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 the Labour Relations Act.” The plaintiffs appealed.

 

Held, the appeal should be allowed.

 

Absent clear contrary legislation, the legal status of trade unions to assert their rights in court, including common law rights, is now beyond question, at least in matters relating to their labour relations function and operations. While that legal status is founded in each case on the relevant provincial or federal legislation governing the union, it does not depend on any provision specific to that legislation. While variations exist among jurisdictions, the legal status accorded to trade unions derives not from specific provisions in any particular piece of legislation but from the reality that, throughout Canada, the world of labour relations is governed by sophisticated statutory machinery that requires unions to have sufficient legal personality to discharge their role in that world. Thus, legislatures must be taken to have impliedly conferred on unions the legal status necessary for them to do so. This recognition of the broadening legal status accorded to trade unions is a reflection of the extraordinary evolution over the last half century of both their role and the complex labour relations regimes which now govern them and their activities. In order that unions be able to properly fulfill the functions now expected of them, courts must treat them as juridical entities. The plaintiffs in this case had the legal status to bring the actions in their own names. Respecting the three plaintiffs which were certified under the Public Service Staff Relations Act, their status was derived from the PSSRA not from any provisions in the Rights of Labour Act or the Ontario Labour Relations Act, R.S.O. 1980, c. 228. Hence, irrespective of the latter two Acts, these plaintiffs had the status to be parties to these actions. The other three plaintiffs were incorporated pursuant to the laws of their particular provinces. Corporations are entitled to sue in their own names. While these plaintiffs were not certified trade unions and had not been accorded a legislative framework for collective bargaining on behalf of their members, they did in fact represent the interests of those members in employment matters. It was unnecessary to decide whether they had the legal status to bring these actions in their own name based on the modern approach to trade unions as juridical entities outlined, since they clearly had the right to do so as corporations, and that right existed irrespective of the Rights of Labour Act or the Ontario Labour Relations Act.

The plaintiffs had standing to bring these actions as they had a sufficient private or special interest in the federal pension legislation. The terms and conditions of employment of the plaintiffs’ members included the pension benefits owed to employees, the contribution made by employers and the employees’ [page684] rights, if any, to the surplus in those pension plans. While the plaintiffs could not compel the employers to bargain collectively about pensions, the impugned pension legislation would change important conditions of employment for the plaintiffs’ members. Challenging the legality of such a change on behalf of their members came within the core function expected of unions in representing their members and their interests. Viewed in this way, the plaintiffs’ representational role requires them to be directly interested in the legislation in a way that goes well beyond the interest a member of the general public might have. Berry v. Pulley, 2002 SCC 40, (2002), 211 D.L.R. (4th) 651, 287 N.R. 303, 82 C.L.R.B.R. (2d) 161, 2002 C.L.L.C. 220-022, 11 C.C.L.T. (3d) 157, 20 C.P.C. (5th) 205, apld

 

Other cases referred to

 

Canada (Deputy Attorney General) v. Delisle, [1999] 2 S.C.R. 989, 176 D.L.R. (4th) 513, 244 N.R. 33, 66 C.R.R. (2d) 14, 99 C.L.L.C. 220-066; Canada (Minister of Finance) v. Finlay, [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321, 71 N.R. 338, [1987] 1 W.W.R. 603, 17 C.P.C. (2d) 289 (sub nom. Finlay v. Canada); Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, 3 O.R. (3d) 511n, 48 O.A.C. 241, 81 D.L.R. (4th) 545, 126 N.R. 161, 4 C.R.R. (2d) 193, 91 C.L.L.C. 14,029; Nipissing Hotel Ltd. v. Hotel & Restaurant Employees Union, [1963] 2 O.R. 169, 38 D.L.R. (2d) 675, 63 C.L.L.C. 15,475 (H.C.J.); Orchard v. Tunney, [1957] S.C.R. 436, 8 D.L.R. (2d) 273, 57 C.L.L.C. 15,319 (sub nom. Tunney v. Orchard); Seafarers International Union v. Lawrence (1979), 24 O.R. (2d) 257, 97 D.L.R. (3d) 324, 13 C.P.C. 281 (C.A.) [Leave to appeal to S.C.C. refused (1979), 24 O.R. (2d) 275n, 97 D.L.R. (3d) 324n], revg (1978), 21 O.R. (2d) 819, 92 D.L.R. (3d) 116, 8 C.P.C. 172 (Div. Ct.), affg (1977), 15 O.R. (2d) 226, 75 D.L.R. (3d) 357, 3 C.P.C. 1 (H.C.J.); Taff Vale Ry. Co. v. Amalgamated Society of Railway Servants, [1901] A.C. 426, 70 L.J.K.B. 905, 85 L.T. 147, 65 J.P. 596, 50 W.R. 44, 17 L.T.R. 698, 45 Sol. Jo. 690 (H.L.)

 

Statutes referred to

 

Canada Labour Code, R.S.C. 1985, c. L-2. Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III Canadian Charter of Rights and Freedoms Labour Relations Act, R.S.O. 1980, c. 228 Public Service Staff Relations Act, R.S.C. 1985, c. P-35 Public Service Superannuation Act, R.S.C. 1985, c. P-36 Rights of Labour Act, R.S.O. 1990, c. R.33, s. 3 Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11

 

Authorities referred to

 

Cromwell, T.A., Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986) Fudge, J., and E. Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Ontario, 1900 to 1948 (Don Mills: Oxford University Press, 2001)

 

APPEAL from an order striking the appellants from the title of actions.

 

Andrew Raven, for appellant Public Service Alliance of Canada. Fiona Campbell, for appellants Translator’s Group Canadian Union of Professional and Technical Employees, and the Social [page685] Science Employees Association, and for appellants L’Association des Membres de la Police Monte du Qubec, The B.C. Mounted Police Professional Association and The Mounted Police of Ontario. Melanie Aitken and Donald Rennie, for respondent Attorney General of Canada.

 

The judgment of the court was delivered by

 

[1]  GOUDGE J.A.: — The appellants in this appeal are the Public Service Alliance of Canada (“PSAC”), the Translator’s Group Canadian Union of Professional and Technical Employees (“CUPTE”), the Social Science Employees Association (“SSEA”), L’Association des Membres de la Police Monte du Qubec (“AMPMQ”), the B.C. Mounted Police Professional Association (“BCMPPA”), and the Mounted Police Association of Ontario (“MPAO”). They are all acknowledged to be trade unions, but none are certified under the Ontario Labour Relations Act, R.S.O. 1980, c. 228 (the “OLRA”).

 

[2]  The appeal deals with three actions, in each of which one or more of the appellants is a plaintiff. The primary question raised is whether s. 3(2) of the Rights of Labour Act, R.S.O. 1990, c. R.33 (the “RLA”) prevents the appellants from suing in their own names in the courts of this province.

 

[3]  At first instance, Morin J. answered this question in the affirmative and ordered that the appellants be struck from the actions.

 

[4]  The respondent sought this result not just on the basis of s. 3(2) of the RLA, but on the basis that, in any event, the appellants do not have sufficient direct interest in the litigation to bring these actions nor do they meet the criteria necessary to give them the public interest standing to do so. Morin J. dismissed both standing arguments. In this court, the respondent argues that he erred in doing so and offers these arguments as a separate basis for reaching the result arrived at below.

 

[5]  For the reasons that follow, I have concluded that s. 3(2) of the RLA does not bar the appellants from bringing these actions and that they have a sufficient direct interest to have standing to do so. I would therefore allow the appeal.

 

The Facts

 

[6]  This appeal involves three parallel actions which have been ordered to be tried together. Broadly put, the actions all seek to challenge federal legislation which authorizes the federal government to deal as it wishes with the surpluses in the pension plans [page686] covering employees of the federal government and the Royal Canadian Mounted Police.

 

[7]  The appellant PSAC is a plaintiff, together with three individuals, in the first action. It is an unincorporated association which is certified pursuant to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the “PSSRA”) as the bargaining agent for most employees in the federal public service. With certain specified exceptions, these employees are members of the pension plan created by the Public Service Superannuation Act, R.S.C. 1985, c. P-36 (the “PSSA”). The PSSRA expressly excludes the pension plan from the scope of subjects about which PSAC is entitled to bargain.

 

[8]  The appellants CUPTE and SSEA are plaintiffs in the second action along with several other similar organizations and individuals. Both are trade unions certified under the PSSRA as bargaining agents for particular groups of federal government employees and both are unincorporated associations. Their members are covered by the same pension plan as those of PSAC and, in the same way, the PSSRA excludes the plan from the subjects about which these appellants are entitled to bargain.

 

[9]  The other three appellants, AMPMQ, BCMPPA and MPAO, are plaintiffs in the third action. There are a number of individual plaintiffs as well. These three appellants are each incorporated pursuant to the laws of their respective provinces. Their members are present and former employees of the RCMP. All such employees are members of a pension plan established pursuant to the Royal Canadian Mounted Police Superannuation Act, R.S.C. 1985, c. R-11 (the “RCMPSA”). Each of these appellants represents the interests of its members in employment-related matters, including their interests with respect to the RCMPSA. However, they are not certified trade unions and, indeed, are expressly excluded from the application of the PSSRA and Part 1 of the Canada Labour Code, R.S.C. 1985, c. L-2. As a result, they are not empowered to engage in compulsory collective bargaining.

 

[10]  The federal legislation impugned in these actions came into force on September 14, 1999 and gave the respondent explicit legislative authority to take, for its own purposes, actuarial surpluses existing from time to time in these pension plans. The actions assert that the legislation violates the plaintiffs’ legal rights and seek a series of declarations that the legislation contravenes the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights, S.C. 1960, c. 44, reprinted in R.S.C. 1985, App. III, and various of the respondent’s common law obligations, and that it amounts to an unlawful seizure of the [page687] interest of the appellants’ members in the surpluses in the pension plans.

 

[11]  The respondent successfully moved for the order appealed from on the basis that the appellants lack capacity to commence or maintain these actions. The order was also sought and obtained against 12 other similar organizations who have chosen not to appeal. Apart from these organizations and the six appellants, there are individual plaintiffs in each of these actions who remain able to proceed with them.

 

[12]  In granting the order, the motion judge concluded that s. 3(2) of the RLA, particularly as applied by Osler J. in Seafarers International Union of Canada v. Lawrence (1977), 15 O.R. (2d) 226, 75 D.L.R. (3d) 357 (H.C.J.), compelled the result he reached. As I have said, in the course of his decision, he rejected the respondent’s argument that the appellants should be struck from the proceedings because they are not directly affected by the legislation in issue and fail to meet the criteria for public interest standing.

 

[13]  Two broad issues are presented on this appeal. The principal issue is whether the motion judge was correct in concluding that s. 3(2) of the RLA prohibits the appellants from being named as plaintiffs in these actions. The second issue is whether he was correct in finding that, aside from s. 3(2), the appellants have standing to bring these actions. I will deal with each of these in turn.

 

The Section 3(2) Issue

 

[14]  Section 3(2) of the RLA reads as follows: 3(2) 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.

 

[15]  The RLA was first passed in 1944. It was, and remains, a terse piece of legislation comprising only three sections on a single page of the Revised Statutes of Ontario. Over the intervening 58 years since 1944, the world of labour relations and the legal framework within which it operates has undergone enormous evolution. However, s. 3(2) remains in substance exactly as it was when first enacted. In this light, it is something of an archaic legislative provision.

 

[16]  Nonetheless, given the historical context which gave rise to the RLA, its provisions are understandable. Trade unions had only begun to emerge as important institutions in Ontario society. Provincial legislation providing them with rights to compulsory collective bargaining was relatively new. The House of Lords [page688] had held in Taff Vale Co. v. Amalgamated Society of Railway Servants, [1901] A.C. 426, 70 L.J.K.B. 905 (H.L.) that similar statutory rights accorded to unions in the United Kingdom brought with them corresponding common law obligations for those unions.

 

[17]  In this context, the RLA offered some protection to trade unions and the fledgling system of labour relations of which they were a part. Section 2 declared that unions were not unlawful simply because they were in restraint of trade. Section 3(1) diminished their liability for civil conspiracy. Section 3(2) set limits on making a trade union a party to civil litigation in Ontario. Section 3(3) provided, in effect, that collective agreements were not legally enforceable in the ordinary courts leaving this task to the new dispute resolution mechanism of labour arbitration. This history is well described in J. Fudge and E. Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Ontario, 1900 to 1948 (Don Mills: Oxford University Press, 2001) at p. 296.

 

[18]  The jurisprudence surrounding s. 3(2), though limited, is exemplified by Nipissing Hotel Ltd. v. Hotel & Restaurant Employees & Bartenders International Union, [1963] 2 O.R. 169, 38 D.L.R. (2d) 675 (H.C.J.). In that case, Spence J. concluded that s. 3(2) was a bar to naming a trade union as a party to an action for an injunction after he had determined that the OLRA had created the union as a juridical person which, without that bar, could have been named as a party.

 

[19]  In Seafarers International Union of Canada, supra, Osler J. extended the reach of s. 3(2) to a trade union regulated not by the OLRA, but by federal labour legislation. He said this at p. 229 O.R.: I find, therefore, that Seafarers International Union of Canada is not an entity capable of bringing suit in this Province, in its own name. In so holding, I have not lost sight of the submissions of counsel for the respondent union that it is somehow governed by the Trade-unions Act of Canada and that it escapes the provisions of the Rights of Labour Act of Ontario.

. . . To say that the respondent union is somehow governed by the Trade-unions Act of Canada is to advance the matter no further. The matter is, in my view, analogous to the position of a corporation enjoying a federally granted charter which must, nevertheless, submit to Ontario procedural law when it wishes to litigate within this Province.

 

[20]  Though other aspects of his decision were appealed, there was no appeal from Osler J.’s broad assertion that a trade union in Ontario was both unable to sue and was protected from being [page689] sued in its own name by virtue of s. 3(2). In his reasons, at p. 230 O.R., he followed this conclusion with a description of the cumbersome mechanism which had developed in an attempt to circumvent the difficulties created by s. 3(2): It has been the practice in this Province for some years that a trade union seeking to litigate an issue before our Courts brings its action in the name of two or more officers “on their own behalf and on behalf of all other members of the blank union”.

 

[21]  Implicit in the language of s. 3(2), and explicit in the jurisprudence surrounding it, is the idea that trade unions, once accorded statutory rights by labour legislation, acquire corresponding legal obligations and, at least to that extent, have a legal status or capacity. This idea, which goes back as far as Taff Vale, supra, remained relatively unelaborated until Berry v. Pulley, 2002 SCC 40, 211 D.L.R. (4th) 651.

 

[22]  In Berry v. Pulley, the Supreme Court reviewed the historical development of the legal status of trade unions beginning with the general rule at common law that, as unincorporated associations, unions had no legal status. It then surveyed the relevant jurisprudence from Taff Vale, supra, and the early Canadian case of Orchard v. Tunney, [1957] S.C.R. 436, 8 D.L.R. (2d) 273, which declined to fully adopt the reasoning in Taff Vale, to later cases which did use the Taff Vale approach, such as the Nipissing case I have referred to.

The Supreme Court went on to canvass the legislation that, over time, has progressively accorded greater statutory rights to unions. It noted that every provincial legislature and the federal parliament have all passed labour legislation and, while these enactments differ in various respects, they all must be taken to acknowledge, in varying degrees, the legal status of trade unions. The Supreme Court concludes its general analysis, at para. 46 as follows:

As the above cases and statutory provisions suggest, the world of labour relations in Canada has evolved considerably since the decision of this Court in Orchard, supra. We now have a sophisticated statutory regime under which trade unions are recognized as entities with significant rights and obligations. As part of this gradual evolution the view has emerged that, by conferring these rights and obligations on trade unions, legislatures have intended, absent express legislative provisions to the contrary, to bestow on these entities the legal status to sue and be sued in their own name. As such, unions are legal entities at least for the purpose of discharging their function and performing their role in the field of labour relations.

 

[23]  The Supreme Court went on to address the specific dispute before it where the trade union was governed by federal labour legislation, namely the Canada Labour Code. The issue was whether the union had the legal status to contract with its [page690] members and to be sued at common law for the breach of that contract. In concluding that the union could be sued for this, the Supreme Court said the following at para. 47: In order for trade unions to fulfill their labour relations functions, it is essential for unions to control and regulate their internal affairs. Since the regulation of union membership is a fundamental part of the role of trade unions, it is only logical that it should fall within the sphere of activities for which unions have legal status. It follows that unions must have sufficient legal personality to enter into contracts of membership, and that this is an aspect of union affairs for which legislatures have impliedly conferred legal status on unions.

 

[24]  I would take three propositions from the Supreme Court’s discussion in this case.

 

[25]  First, absent clear contrary legislation, the legal status of trade unions to assert their rights in court, including common law rights, is now beyond question, at least in matters relating to their labour relations function and operations.

 

[26]  Second, while that legal status is founded in each case on the relevant provincial or federal labour legislation governing the union, it does not depend on any provision specific to that legislation. While variations exist among jurisdictions, the legal status accorded to trade unions derives not from specific provisions in any particular piece of legislation, but from the reality that, throughout Canada, the world of labour relations is governed by sophisticated statutory machinery which requires that unions have sufficient legal personality to play their role in that world. Thus legislatures must be taken to have impliedly conferred on unions the legal status necessary for them to do so.

 

[27]  Third, this recognition of the broadening legal status accorded to trade unions is a reflection of the extraordinary evolution over the last half century of both their role and the complex labour relations regimes which now govern them and their activities. In order that unions be able to properly fulfill the functions now expected of them, courts must treat them as juridical entities.

 

[28]  It is against this jurisprudential backdrop that the first issue in this appeal must be addressed: does s. 3(2) of the RLA prohibit the appellants from being named as plaintiffs in these actions?

 

[29]  To reiterate, that subsection reads as follows: 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.

 

[30]  None of the appellants contest the respondent’s assertion that they all are trade unions for the purposes of this subsection. The question is simply whether, irrespective of the RLA or the OLRA, the appellants may be parties to an action in court. [page691]

 

[31]  The appellants PSAC, CUPTE, and SSEA are all unions certified pursuant to the PSSRA. That legislation, though it contains its own special features, is the generic counterpart for the federal public service of other federal and provincial labour legislation. It provides for such things as certification, collective bargaining and arbitration, as does most other labour legislation. In the language of Berry, supra, it is an example of the kind of sophisticated statutory regime governing labour relations which now exists across Canada and provides the modern foundation for the legal status of trade unions. Following the reasoning in that case, these appellants must therefore be taken to have been implicitly accorded the legal status to sue in their own names at least for the purpose of discharging their functions in performing their roles in the field of labour relations.

 

[32]  There is no need to test the outer limits of the legal status thus accorded to these appellants since, in my view, it easily includes the bringing of these actions. While the PSSRA prohibits these appellants from negotiating collective agreement provisions which alter the terms of the pension plan established by the PSSA, these terms (including the employer’s obligation to make contributions to the employees’ pension benefits and their rights, if any, to any surplus) are part of the terms and conditions of employment of these appellants’ members. Challenging the legality of changes to these employment rights which adversely affect their members is important both to protect the interests of those members vis– vis their employer, and to define the legal context in which these unions must bargain on their behalf. Such a court challenge is appropriately the role of these unions in modern labour relations and they must have sufficient legal personality to do so. This conclusion accords with the recognition of the broadening legal status to be granted unions found in Berry, supra.

 

[33]  Therefore, I conclude that these three appellants have the legal status to bring these actions in their own names. They derive that status from the PSSRA, not from any provisions in the RLA or the OLRA. Hence, irrespective of the latter two acts, these appellants have the status to be parties to these actions.

 

[34]  I reach the same conclusion for the other three appellants, but on a much simpler basis. All three are incorporated pursuant to the laws of their particular provinces. Corporations, like natural persons, have long been recognized by the common law as entitled to sue in their own names. See Taff Vale, supra, at p. 429 A.C. It is true that these appellants are not certified trade unions and have not been accorded a legislative framework for collective bargaining on behalf of their members. However, as the respondent acknowledges, they do in fact represent the interests of those members in employment matters. I need not decide whether they [page692] have the legal status to bring this litigation in their own names based on the modern approach to trade unions as juridical entities. As corporations they have the right to do so — a right which exists irrespective of the RLA or the OLRA.

 

[35]  The respondent argues, however, that regardless of the appellants’ legal status to sue in their own names, s. 3(2) denies them the standing to do so. The respondent says that s. 3(2) constitutes a general prohibition against trade unions having standing in the courts of Ontario, unless, apart from the RLA or the OLRA, the legislature has expressly accorded them standing.

 

[36]  I disagree with this position. The distinction between legal status or capacity on the one hand and standing on the other, while not always observed in the jurisprudence, has been carefully described in Thomas A. Cromwell (now Cromwell J.A.), Locus Standi: A Commentary on the Law of Standing in Canada (Toronto: Carswell, 1986). At p. 3, he says this: [Legal status] concerns the right to initiate or defend legal proceedings generally. Standing is concerned with the appropriateness of the court’s dealing with the particular issue presented at the instance of the particular plaintiff.

 

[37]  In my view, in addressing the right of trade unions to be a party to any court action whatsoever, the language of s. 3(2) does not deal with standing but with legal status, and requires that that status exist independent of the two pieces of legislation it recites. As I have said, the appellants all meet this test.

 

[38]  However, even if s. 3(2) were construed as dealing only with standing, the appellants qualify. Read this way, the section requires only that their standing not depend on the RLA or the OLRA. Nothing in s. 3(2) demands an express grant of standing from the legislature. The standing of these appellants to bring these actions flows directly from their legal status to do so. Given their legal status to sue in the courts in their own names they have the same standing to do so as a natural person would in the same circumstances. Their standing is no more dependent on the RLA or the OLRA than is their legal status.

 

[39]  Finally the respondent urges this court to follow the reasons of Osler J. in Seafarers Union of Canada, supra, which I have quoted above. It argues that these reasons stand for the proposition that even unions governed by federal labour legislation are prohibited from suing in their own names in Ontario by s. 3(2) of the RLA.

 

[40]  I would offer two responses to this submission.

 

[41]  First, it appears to me from his reasons that the argument made to Osler J. was that a union governed by federal labour legislation somehow escapes the reach of the RLA altogether. [page693] This is implicit in his finding that such a union can no more be insulated from the application of the RLA than a federally incorporated company can avoid Ontario procedural law when it litigates here. I agree with him. But that is not the argument made by the appellants in this case. Thus his conclusion should not be taken as a clear rejection of the appellants’ position.

 

[42]  Second, the argument made here is that when the RLA is applied to unions governed by federal labour legislation, s. 3(2) does not prohibit them from suing in their own names in the courts of Ontario. To the extent that Osler J. can be read to find against this argument, I would respectfully disagree for the reasons I have given. He did not have the benefit of the analysis of the legal status of trade unions developed in Berry, supra, and was therefore unable to apply it in interpreting the language of s. 3(2).

 

[43]  However, whether he was faced with the argument made by the appellants in this case or not, Osler J. clearly concluded that a union governed by federal labour legislation was prohibited from suing in its own name in Ontario by s. 3(2). That finding was not appealed to this court. As my responses indicate, I disagree with that conclusion and would decline to follow it.

 

[44]  In summary, I conclude that Morin J. erred in finding that s. 3(2) of the RLA prohibits the appellants from being named as plaintiffs in these actions. Hence this ground of appeal succeeds.

 

[45]  Before moving to the second issue in this appeal, one further comment may be useful. Although it is not necessary to decide in this case, the answer I have given to the application of s. 3(2) of the RLA might well be different for unions governed by the OLRA, something which could force them to attempt to access the courts using the antiquated and uncertain vehicle of the representative action described by Osler J. in Seafarers, supra. Such a result would seem inconsistent with the broad, principled approach to the legal status of unions found in Berry. That approach reflects the reality that, across the country, unions share a common history and, speaking generically, perform common functions, and are governed by common legislative provisions. Viewed against this commonality, if s. 3(2) creates an anomalous result for some unions in a single province, it may be time, after more than 50 years, that it be revisited for possible revision.

 

The Standing Issue

 

[46]  As I have said, Morin J. found that, apart from s. 3(2) of the RLA, the appellants have standing to bring these actions both because they are directly affected by the legislation challenged in the actions and because, in any event, they meet the criteria for public interest standing. The respondent challenges both findings. [page694]

 

[47]  It is common ground in this appeal that to have standing to challenge the federal pension legislation, as the appellants seek to in these actions, they must have a sufficient private or special interest in the legislation which is the subject matter of the proceedings. See Canada (Minister of Finance) v. Finlay, [1986] 2 S.C.R. 607, 33 D.L.R. (4th) 321, at pp. 617-18 S.C.R., p. 329 D.L.R.

 

[48]  There is no doubt that the terms and conditions of employment of the appellants’ members include the pension benefits owed to employees, the contributions made by employers, and the employees’ rights, if any, to the surplus in these pension plans.

 

[49]  The respondent acknowledges that the appellants are all trade unions whose objects include, in each case, regulating relations between its members and their employer. As with all unions, the appellants’ raison d’tre is to represent the interests of their members in matters that affect their employment circumstances. The courts have long recognized that this may take them well beyond the strict limits of contract negotiation and administration. See, for example, Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211, 81 D.L.R. (4th) 545, at p. 288 S.C.R. per Wilson J.; Canada (Deputy Attorney General) v. Delisle, [1999] 2 S.C.R. 989, 176 D.L.R. (4th) 513, at p. 1021 S.C.R. This recognition reflects the reality that the modern workplace is the product of many forces and, if a union is to do its job, it must try to influence those forces on behalf of its members.

 

[50]  Here it is true that the appellants cannot compel the employers to bargain collectively about pensions. However, the pension legislation attacked in these actions would change important conditions of employment for the appellants’ members. Challenging the legality of such a change on behalf of their members comes within the core function we expect of unions in representing their members and their interests. Viewed in this way, the appellants’ representational role requires them to be directly interested in this legislation in a way that goes well beyond the interest a member of the general public might have.

 

[51]  Thus I conclude that the motions judge was right to find that the appellants have a sufficient private or special interest in the legislation that is the subject matter of this litigation. This direct interest gives them the standing required to bring these actions.

 

[52]  Having reached this conclusion, I need not address the issue of whether the appellants also meet the criteria for public interest standing to bring these actions. However, I am dubious about whether the motion judge was correct in finding these criteria to be met. He did so without reasons. In particular he did not explain how one of the criteria is met here, namely how it could be said that if the appellants are not given standing, there is no [page695] other reasonable and effective manner in which this issue could be brought to court given that there are individual plaintiffs able to proceed with these actions.

 

[53]  In summary therefore, I would allow the appeal, set aside the order below striking the appellants from the title of these actions and order that the respondent’s motion seeking this relief be dismissed.

 

[54]  The appellants are entitled to their costs of the appeal and the motions fixed on a partial indemnity basis. For the appellant PSAC, I would fix these at $5,000 for the motion and $10,000 for the appeal, inclusive of disbursements and GST. The appellants CUPTE and SSEA are together entitled to the same amounts. The remaining appellants are together entitled to $5,000 for the motion and $5,000 for the appeal, including disbursements and GST, given that they were represented on the hearing of the appeal by counsel acting for CUPTE and SSEA.

 

Appeal allowed.

 

qlesm