John Parsons v. ALTON BENOIT, 2022 NLSC 34

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Parsons v United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 , 2022 NLSC 34 Date : March 4, 2022 Docket : 201401G7183 Between: John Parsons and ALTON BENOIT Plaintiffs And: United Association of Journeymen and Apprentices of the PlumbinG and Pipefitting Industry of the United States and Canada, Local 740 First Defendant And: James Myers (as Trustee of U.A. Local 740 Pension Plan Trust Fund and as Trustee of the U.A.

Local 740 Welfare Plan Trust Fund) Second Defendant (Discontinued) And: Robert Fiander ( as Trustee of U.A. Local 740 Pension Plan Trust Fund and as Trustee of the U.A. Local Welfare Plan Trust Fund ) Third Defendant (DISCONTINUED) And: Gerard Daley (as Trustee of U.A. Local 740 Pension Plan Trust Fund and as Trustee of the U.A. Local Welfare Plan Trust Fund) Fourth Defendant (Discontinued) And: Geoff Wells (as Trustee of U.A. Local 740 Pension Plan Trust Fund and as Trustee of the U.A. Local 740 Welfare Plan Trust Fund) Fifth Defendant

(Discontinued) And: Dave Myers (as Trustee of U.A. Local 740 Pension Plan Trust Fund and as Trustee of the U.A. Local 740 Welfare Plan Trust Fund) Sixth Defendant (Discontinued) And: James Brown (as Trustee of U.A. Local 740 Pension Plan Trust Fund and as Trustee of the U.A. Local 740 Welfare Plan Trust Fund) Seventh Defendant (Discontinued) Before: Justice Donald H. Burrage Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: February 3, 2022

Summary: The Plaintiffs’ application for certification of the within matter as a class action was dismissed. The Amended Statement of Claim failedto disclose a cause of action. Appearances: Ernest L. Gittens Appearing on behalf of the Plaintiffs Barry Learmonth, Q.C. Appearing on behalf of the First Defendant Authorities Cited: CASES CONSIDERED: Letang v. Cooper, [1964] 2 All E.R. 929 (Eng. (C.A.)); Thorne v. College of the North Atlantic, 2018 NLCA33; Dewey v. Kruger Inc., 2021 NLSC 118; Moore v. Sweet, 2018 SCC 52; Queen v. Cognos Inc., (SCC), [1993] 1S.C.R. 87; Valard Construction Ltd. v. Bird Construction Co., 2018 SCC 8; Watt v. HSA BC, 2016 BCCA 325; Green Light Solutions

Corp. v. Baker , 2021 BCCA 287 ; Montreal Trust Company of Canada v. Hickman , 2001 NFCA 42 STATUTES CONSIDERED: Class Actions Act , S.N.L. 2001, c. C-18.1 ; Pension Benefits Act, 1997 , S.N.L. 1996, c. P-4.01 ; Trustee Act , R.S.N.L. 1990, c. T-10 ; Income Tax Act , R.S.C. 1985, c. 1 (5th Supp .); Income Tax Regulations (C.R.C., c. 945 ) RULES CONSIDERED: Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Burrage, J. : INTRODUCTION [ 1 ] The Plaintiffs apply for certification of the within proceeding as a class action under the Class Actions Act , S.N.L. 2001, c.

C- 18.1 (the “ Act ”). BACKGROUND [ 2 ] During their working lives the Plaintiffs were members of the Defendant trade union, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 740 (the “Union”). All Union members are paid salary and benefits pursuant to the collective agreement governing their employment. The wage package is negotiated between the Union and employer and voted on by the Union membership.

The package includes member contributions to a pension plan and health and welfare plan. [1] [ 3 ] Retired members are eligible to return to work, but only if all active members are working. In addition, should the employer need to commence layoffs, retirees must be laid off first, before any active members are laid off. [2] . [ 4 ] Retired members who return to work continue to receive their pension and health and welfare benefits. At the same time, the employer continued to deduct amounts for these benefits from their pay.

However, during the timeframe applicable to this action [3] , these deductions did not accrue for the benefit of the retired member, but rather for the benefit of the pension and health and welfare plan generally. [4] [ 5 ] The Plaintiffs bring the within action as retired members who returned to work and continued to pay into their pension and health and welfare plans, without receiving any benefit in return. They bring the within action in their own right and seek to bring it on behalf of a proposed class of persons defined, as follows: [5]

a) All members of the Union, including the Plaintiffs, who have retired or terminated employment, and who have subsequent to their retirement returned to work through the Union from 1998 onward, and who are entitled to receive post-retirement benefits, including pension income and health and welfare benefits (the “Retirees”);

b) All surviving spouses and dependants of the retirees who were entitled to receive post-retirement pension income and health and welfare benefits; and

c) The estates and beneficiaries of the retirees and survivors. LEGAL FRAMEWORK [ 6 ] The circumstances under which a class action may be certified are set forth in section 5(1) of the Act , as follows: 5.

(1) On an application made under

section 3 or 4 , the court shall certify an action as a class action where (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the class members raise a common issue, whether or not the common issue is the dominant issue;

(

d) a class action is the preferable procedure to resolve the common issues of the class; and (

e) there is a person who (

i) is able to fairly and adequately represent the interests of the class, (ii) has produced a plan for the action that sets out a workable method of advancing the action on behalf of the class andof notifying class members of the action, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members.

(2) In determining whether a class action would be the preferable procedure for the fair and efficient resolution of the commonissues, the court may consider all relevant matters including whether (

a) questions of fact or law common to the members of the class predominate over questions affecting only individual members; (

b) a significant number of the members of the class have a valid interest in individually controlling the prosecution of separateactions; (

c) the class action would involve claims that are or have been the subject of another action; (

d) other means of resolving the claims are less practical or less efficient; and (

e) the administration of the class action would create greater difficulties than those likely to be experienced if relief were soughtby other means. [7]

Section 6 of the Act further provides, as follows: 6.

(1) The court may adjourn an application for certification to permit the parties to amend their materials or pleadings or to permitfurther evidence to be introduced.

(2) An order certifying an action as a class action is not a determination of the merits of the action. Do the Pleadings disclose a Cause of Action? [8] A “cause of action” is defined as “a factual situation the existence of which entitles one person to obtain from the court aremedy against another person” (see Letang v. Cooper, [1964] 2 All E.R. 929 (Eng. (C.A.)), as quoted with approval in Thorne v. Collegeof the North Atlantic, 2018 NLCA 33, at para. 56).

The Plaintiff’s claim must therefore assert facts which, if proved, entitle orpotentially entitle the Plaintiffs to a remedy at law (Thorne, paragraph 56). [9] The test in a certification application is thus the same as the test for striking out pleadings. If it is plain and obvious that theclaim has no reasonable prospect of success, it should be struck out. [10] In Dewey v. Kruger Inc., 2021 NLSC 118, Browne, J. provided the following useful

summary of the principles to be applied inthe analysis of whether the pleadings disclose a cause of action (at paragraph 11): 11 When approaching the analysis of the 5(1)(

a) standard, the Court must adhere to certain principles found in the jurisprudence: a. A pleading is considered sufficient unless it is plain and obvious and beyond doubt that a plaintiff cannot succeed or if it is certain tofail because it contains a radical defect (see Cloud v. Canada (Attorney General)(2004), (ON CA), 135 A.C.W.S.(3d) 567, 192 O.A.C. 239 (Ont. C.A.) at paragraph 41);

b. It is sufficient if the pleadings disclose one valid cause of action (see Gay v. Regional Health Authority 7, 2014 NBCA 10 at paragraph 36 ); c. The pleadings must be read as generously as possible with a view to accommodating any inadequacies in the form of the pleading (see Anderson v. Canada (Attorney General) , 2011 NLCA 82 at paragraph 31 and Ring at paragraph 53); d. When considering whether a pleading discloses a valid cause of action, a court must start from the premise that it has an obligation to promote timely and affordable access to the civil justice system.

Such an approach incorporates the concept that questions of law which have no reasonable chance of success should not be referred for a full trial but rather disposed of promptly by being struck at an early stage of the process (see Atlantic Lottery Corp Inc. v. Babstock , 2020 SCC 19 at paragraphs 15-18 ); and e. Novel claims that might represent an incremental development in the law should be allowed to proceed to trial.

Conversely, simply because a matter is novel should not mean that it will be afforded less scrutiny than that would be applied to all claims that have no reasonable chance of success (see Atlantic Lottery Corp Inc . at paragraph 19). [ 11 ] The Amended Statement of Claim asserts four separate causes of actions: unjust enrichment; breach of fiduciary duty; breach of trust; and negligent misrepresentation. I will address each, in turn. Unjust Enrichment [ 12 ] The Plaintiffs claim that they contributed significant monies to the pension fund and health and welfare fund for which they are unable to obtain a benefit.

They further claim that, as a consequence, “the Union and/or the pension fund is being unjustly enriched”, or alternatively, that a constructive trust has been created in their favour. [6] [ 13 ] To succeed on a claim of unjust enrichment the Plaintiff must establish the following elements ( Moore v.

Sweet , 2018 SCC 52 at paragraphs 34-38 ): • That the defendant was enriched. • That the plaintiff suffered a corresponding deprivation. • That the defendants enrichment and the plaintiffs corresponding deprivation occurred in the absence of a juristic reason. [ 14 ] The pension plan to which the Plaintiffs contribute is a defined benefit, multi-employer pension plan, as defined in sections 2 (

f) and (

v) of the Pension Benefits Act, 1997 , S.N.L. 1996, c. P-4.01 (the “ PBA ”): 2.

In this Act ( f) "defined benefit plan" means a pension plan that is not a defined contribution plan; (v) "multi-employer pension plan" means a pension plan organized and administered for employees of 2 or more employers who contribute to the plan under an agreement, by-law or statute, where the plan provides pension benefits that are determined with reference to periods of employment with any or all of the participating employers except where both or all of those employers are affiliates within the meaning of the Corporations Act ; [ 15 ] Pension plan is defined in s. 2 (cc) of the PBA , as follows: 2.

In this Act : (cc) "pension plan" means a superannuation or other plan organized and administered to provide pension benefits to employees and to which the employer is required, in accordance with the plan, to contribute, but does not include (

i) an employee's profit sharing plan or a deferred profit sharing plan as defined in the Income Tax Act (Canada ) , (ii) arrangements which provide benefits in excess of those allowed under the Income Tax Act (Canada ) , or (iii) any other arrangement prescribed by the regulations; [ 16 ] The PBA thus requires the employer, not the Union, or its members, to make contributions to the pension plan. In a similar vein

section 147.1 of Division G of the Income Tax Act defines a participating employer, as follows:

participating employer, in relation to a pension plan, means an employer who has made, or is required to make, contributions to the plan in respect of the employer’s employees or fo rmer employees, or payments under the plan to the employer’s employees or former employees, and includes a prescribed employer; ( employeur participant ) [ 17 ] Pursuant to s. 13 of the PBA the administrator of the Pension Plan must be a board of trustees, at least 50% of whom must be representatives of the members. [ 18 ] Furthermore, pursuant to s. 14(1) of the PBA the administrator must administer the pension plan as a trustee for the employer, the members and former members of the pension plan and other persons with an entitlement under the pension plan.

The administrator shall not administer the pension plan unless it is registered under the PBA (

section 18 ) and the contents of the Pension Plan Trust Fund [7] must contain a number of terms and conditions. ( PBA ,

section 22 ). [ 19 ] Finally, there is an obligation on the employers to hold specified amounts in trust for members, former members, and other persons with entitlement under the pension plan ( PBA ,

section 32 ). [ 20 ] It is apparent from a review of the PBA that the Union is not responsible for the administration of the pension plan, nor for determining the benefits payable to members under the plan. Nor is it responsible for the administration of the plan. The Union does not remit contributions to the pension plan on behalf of its members. Rather, in order to comply with the PBA these requirements and obligations are assigned to the Trustees. [ 21 ] With respect, this claim has no reasonable prospect of success.

All member contributions are deducted by the employer at source and remitted by the employer directly to the Pension Plan Trust Fund and Welfare Plan Trust Fund, as required by the PBA and Income Tax Act (Canada) . The contributions do not flow through the Union and the Union has no control over how the contributions are administered. Rather, pursuant to the PBA , full power and control over the contributions rests with the Trustees of the plan’s trust funds. It is therefore plain and obvious that the Union has no ability to return the member contributions.

The Union has not been “enriched” by the members’ contributions and, as such, does not hold these contributions for the benefit of members, as a constructive trustee, or otherwise. Such a claim can only be made to the Trustees of the plans. Breach of Fiduciary Duty and Breach of Trust [ 22 ] I agree with counsel for the Union, in that these claims are intertwined. In the Amended Statement of Claim under the heading “Breach of Fiduciary Duty” the Plaintiffs claim: 30.

The Union committed a breach of fiduciary duty on the basis that the Union is in a position of trust in relation to the Plaintiffs, who received a promise and representation of retirement benefits, and who reasonably expected the Union to act in his their best interests with respect to their retirement benefits when those rights accrued and vested in the Plaintiffs. 31.

As a result of the Union’s refusal to account and/or reimburse the Plaintiffs for the contributions made, the Plaintiffs have suffered damages in the amount of the funds contributed to the pension plan subsequent to the Plaintiffs’ retirement, as well as for those amounts paid into for health and welfare benefits (the “Class Damages”). 32. The Plaintiffs further state that the Trustees Union is are under a legal obligation to the Plaintiffs, the Retirees and the Class generally to insure ensure that the pension fund is properly administered for the benefit of the Membership. 33.

The Plaintiffs further state the Union Trustees , in failing to take the necessary action to which they ought to have taken to remedy the gaps in the pension contributions made by Retirees, and to remedy the double dipping of charges for health and welfare benefits of those retires who have gone back to work post retirement, have breached the fiduciary duty they owe the Plaintiffs and the Retirees generally. [ 23 ] In the Amended Statement of Claim, under the heading “Breach of Trust”, the Plaintiffs further claim: 34.

In addition to the foregoing, and/or in the alternative, the Plaintiffs state that the failure of the Union trustees to take the necessary actions to remedy the gaps in the pension contributions made by the [Plaintiffs] and the Retirees, as well as their failure to address the double dipping associated with charging the Plaintiffs and the Retirees for their health and welfare benefits constitutes a breach of trust. 35. The Plaintiffs plead and relies on the Trustee Act , R.S.N.L. 1990, c. T-10 . 36.

The Plaintiff s further state that as a result of the aforesaid breach of trust the Union Trustees are is now personally liable for the Plaintiff’s damages . , and are liable on a joint and several basis . [ 24 ] At the outset, I observe that in both claims the Plaintiffs have deleted the reference to “Trustee”, commensurate with their discontinuance against the Trustees, and have substituted “Trustee” with “Union”, as if the two were interchangeable.

They are not. [ 25 ] The signature characteristic of a trust is the fiduciary relationship which exists between the trustee and beneficiary, whereby the trustee is to hold the trust property solely for the beneficiary’s engagement (see Valard Construction Ltd. v. Bird Construction Co. , 2018 SCC 8 .) Similarly, the Trustee Act , R.S.N.L. 1990, c. T-10 , provides that a Trustee is chargeable only for the money and securities actually received by him or her. The trust property in this proceeding is the contributions to the Pension Plan Trust Fund and the Welfare

Plan Trust Fund. As already discussed, these contributions were never received or held by the Union. [ 26 ] In Valard , Brown , J. described this relationship, as follows (at paragraphs 16-17): 16 As to that general law, first principles are instructive.

At its core, a "trust" refers to: ... the relationship which arises whenever a person (called the trustee) is compelled in equity to hold property ... for the benefit of some persons... or for some object permitted by law, in such a way that the real benefit of the property accrues, not to the truste[e], but to the beneficiaries or other objects of the trust. 8 17 Because a trust divides legal and beneficial title to property between a trustee and a beneficiary, respectively, the "hallmark" characteristic of a trust is the fiduciary relationship existing between the trustee and the beneficiary, by which the trustee is to hold the trust property solely for the beneficiary's enjoyment. 9 As a matter of law, this fiduciary relationship, in turn, impresses the office of trustee with certain duties.

In particular, three duties have been recognized in Canadian law as fundamental. First, a trustee must act honestly and with that level of skill and prudence which would be expected of the reasonable person of business administering his or her own affairs. Secondly, a trustee cannot delegate the office to another. And thirdly, a trustee cannot profit personally from its dealings with the trust property or with the beneficiaries of the trust. [ 27 ] The facts in Watt v. HSA BC , 2016 BCCA 325 are instructive.

HSA BC established employee funded trusts to provide long- term disability (LTD) benefits to its members under LTD plans. The trusts became underfunded necessitating reductions in benefits paid out. Disabled members commenced a class action alleging, inter alia , breach of fiduciary duty by the union as a de facto trustee of the trusts, or a trustee de son tort .

As in the present case, under the collective agreement, the employer deducted members’ premiums from their pay as a condition of union membership and remitted those funds to the trustee. [ 28 ] The “primary issue” before the Court of Appeal was whether the pleadings disclosed a cause or causes of action that are not bound to fail (at paragraph 6). [ 29 ] On appeal a unanimous Court of Appeal held that a reasonable cause of action for breach of fiduciary duty on the basis that the union had effectively become a trustee was not made out in the pleadings.

The Court held that “arguably” the Trustees undertook such a fiduciary duty under the Trust Agreements, but the Union did not. [ 30 ] Nor did the plaintiffs establish a cause of action based on the union acting as a trustee de son tort . Newbury, J. explained (at paragraph 91): 91 ... The union undertook to establish the Trusts and LTD Plans and, as counsel acknowledged, acted as settlor under the Trust Agreements. HSA had the power to remove trustees and its consent was required for certain (but not all) amendments to the Trust Agreements and the Plans.

Reservations of authority of this kind are not unusual in the context of pension and benefit plans, which involve long-term funding obligations (usually by employers) and continuing administration. No authority was cited to us, however, that would equate such terms with the assumption of substantial legal control or possession of the trust property so as to constitute HSA a trustee de son tort . The Trustees have both possession and control, subject to some qualifications. [ 31 ] Further in the within matter the Plaintiffs do not allege that the Union acted as trustee de son tort .

In any event, to become a trustee de son tort , or “ de facto trustee” the Union, though not appointed as a trustee, must act as if they have been and thereby invite the law to treat them as such. A de facto trustee is treated as if he or she were a properly appointed trustee from the moment he or she starts to possess and administer that property knowing actually or constructively that it is trust property (see Green Light Solutions Corp. v. Baker , 2021 BCCA 287 , at para. 38 ). [ 32 ] A trustee de son tort is thus a person who intermeddles in the administration of a trust.

As a result of this intermeddling, that person is treated constructively as a trustee. The concept of a constructive trustee, however, is broader than a trustee de son tort . If a person joins with the trustee in what he knows to be a “dishonest and fraudulent design to injure trust beneficiaries”, that person is accountable as a constructive trustee, whether or not any trust property came into his hands. ( Montreal Trust Company of Canada v.

Hickman , 2001 NFCA 42 at para. 45 ). [ 33 ] The Trustees and Union are separate legal entities, such that the Union does not have legal authority over the Pension Plan Trust Fund or Welfare Plan Trust Fund. While it is at least arguable that the Trustees are under a legal obligation to the Plaintiffs, as originally claimed, the Union can have no such obligation. [ 34 ] In the present case, at no point did the Union “possess or administer” the funds deducted by employers from Union members wage package for pension and other benefits.

The Union could not be a de facto trustee. [ 35 ] In the Amended Statement of Claim the Plaintiffs do not allege facts directed to a “dishonest or fraudulent design” on the part of the Union, nor allege that the Union occupied the position of a constructive trustee. [ 36 ] Finally, Rule 14.11 of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D requires that in a claim for breach of trust the plaintiff provide particulars of the breach. It reads: 14.11.

(1) Subject to rule 14.11(2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded, including

(

a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleadingrelies; and (

b) where a party pleading alleges any condition of the mind of any person, including any disorder or disability of mind or anymalice, or fraudulent intention, or other condition of mind except knowledge, particulars of the facts on which the party relies.

(2) Where it is necessary to give particulars of debt, expenses, or damages, and those particulars exceed three pages, they maybe set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been servedand, if so, when or whether it is to be served with the pleading. [37] The Plaintiffs have provided no such particulars. Negligent Misrepresentation [38] This cause of action appears in paragraphs 37-40 of the Amended Statement of Claim, as follows: 37.

The Plaintiffs state the Union, as the representative for the Plaintiffs, the Retirees, and membership generally, is in a position oftrust in relation to its membership, and owes the [Plaintiffs] a duty of care to act in the utmost good faith in communicating informationabout the [Plaintiffs’] benefits, and that the Plaintiffs are entitled to rely on such representations made. 38.

The Plaintiffs state that the Union has made various representations committing to remedy this gap in the Pension Plan that deniesthe Plaintiffs receipt of any benefit as a result of contributions made to the pension plan post-retirement and to ensure that retiredmembers who return to work receive corresponding benefits from contributions made to the pension plan. 39.

The Plaintiffs state that they had, in reliance on these representations, continued to work and make contributions to the pensionplan, with the reasonable expectation that they would receive repayment, compensation and/or increased pension income as a result ofthe increased contributions made to the pension fund. 40.

The Plaintiffs further state that this reliance was to their significant detriment, having proceeded to contribute significant revenuesfrom their pay to the pension fund, while the Union refused to honour the commitments made to ensure that the Plaintiffs receive theappropriate benefit from the contributions made to the pension fund post-retirement. [39] Rule 14.11, supra, requires that a claimant state the particulars of the alleged misrepresentation. [40] The required particulars must cover the five elements of the tort as summarized by Iacobucci, J. in Queen v.

Cognos Inc., (SCC), [1993] 1 S.C.R. 87 at paragraph 34: 34 The required elements for a successful Hedley Byrne, supra, claim have been stated in many authorities, sometimes in varyingforms.

The decisions of this court cited above suggest five general requirements: (1) there must be a duty of care based on a "specialrelationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading;(3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in a reasonablemanner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense thatdamages resulted.

In the case at bar, the trial judge found that all elements were present and allowed the appellant's claim. [41] Such particulars are necessary so that the Union may properly defend. In this case, however, the Plaintiffs have provided noparticulars.

They have not identified who made the misrepresentations, when and in what circumstance it was allegedly made, or in whatmanner the alleged misrepresentations were relied upon. [42] In response to the Union’s argument at the certification hearing, the Plaintiffs sought leave to amend the Amended Statementof Claim to add particulars of the alleged misrepresentation, referring to s. 6 of the Act.

This request was not made as part of the legalbrief filed but arose during oral argument. [43] The original Statement of Claim pleading negligent misrepresentation was issued some seven and one-half years ago, on 8October 2014. There has been ample time for the Plaintiffs to provide particulars of the negligent misrepresentation between then andnow.

At this late stage, I declined to grant this request. [44] Furthermore, insofar as the pension contributions are deducted by the employer and remitted directly to the plan, as required bylegislation, it is hard to fathom how members could be said to rely on the Union for an alternate arrangement. The deductions are part ofthe wage package negotiated between the Union and employer, and voted on by the members and embodied in the governing CollectiveAgreement.

The Remaining Requirements for Certification [ 45 ] In light of my conclusion that the Amended Statement of Claim does not disclose a cause of action, it is not necessary to address the remaining criterion for the certification of this proceeding as a class action. disposition [ 46 ] On 15 April 2021 the Plaintiffs discontinued the proceeding against all of the Trustees, leaving the Union as the only Defendant. The Union and pension and welfare plans, as administered by the Trustees, are separate and distinct legal entities.

All contributions to the plans are paid by employers directly to the Trustees, and not to the Union. Power or control over these contributions is exercised not by the Union, but exclusively by the Trustees in accordance with the Trust agreements and federal and provincial legislation and regulations. Moreover, in negotiating with employers for the compensation package for its members the Union was not acting as a fiduciary and was not in a position of trust.

For these reasons the class action has no reasonable prospect of success and the within application must be dismissed. [ 47 ] The Plaintiffs’ application for certification under

section 5 of the Class Actions Act is dismissed. As the successful party the Union shall have its costs on a party-party basis under Column 3 of Rule 54. _____________________________ Donald H. Burrage Justice