Roger Lasaga Applicant And: James Oakley Respondent And: International Union of Operating Engineers, Local 904 First Intervenor And: Atlantic Minerals Limited second Intervenor, 2019 NLSC 58

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : LaSaga v. Oakley , 2019 NLSC 58 Date : March 12, 2019 Docket : 201804G0108 Between: Roger Lasaga Applicant And: James Oakley Respondent And: International Union of Operating Engineers, Local 904 First Intervenor And: Atlantic Minerals Limited second Intervenor Before: Justice Brian F. Furey Edited Transcript of Oral Reasons for Judgment Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: January 10, 2019 Date of Oral Judgment: January 30, 2019

Summary:

The First Intervenor and the Second Intervenor filed Interlocutory Applications seeking Orders that the Applicant’s Originating Application for judicial review of the Respondent’s arbitration award be set aside pursuant to Rule 10.05(1) (

a) of the Rules of the Supreme Court, 1986 . Held: The Court found that the Applicant did not have standing to bring the Originating Application and granted the Intervenors’ Interlocutory Applications. The Intervenors are awarded costs in the amount of $500 each. Appearances: Roger Lasaga Appearing on his own behalf Gerard J. Martin, Q.C. Appearing on behalf of James Oakley (Agent for Sandra Gogal) Ronald A. Pink, Q.C. Appearing on behalf of International Union of Operating Engineers, Local 904 Twila E. Reid Appearing on behalf of Atlantic Minerals Limited Authorities Cited: CASES CONSIDERED: Young v.

Clarke (18 December 2017), Corner Brook 201704G0206 (N.L.S.C.); Young v. Clarke , 2018 NLCA 67 ; and Noël v. Société d’énergie de la Baie James , 2001 SCC 39 . RULES CONSIDERED: Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . REASONS FOR JUDGMENT Furey, J. : INTRODUCTION [ 1 ] These Applications were heard in court on January 10, 2019. Two separate Interlocutory Applications were filed by the First Intervenor and the Second Intervenor with respect to an Originating Application that Mr. LaSaga had filed. I have had an opportunity to review the matter.

I will now give my decision. [ 2 ] Both the first Intervenor and the Second Intervenor were granted an Order on September 12, 2018 to participate as Intervenors in the Interlocutory Applications referenced in paragraph 1. The Interlocutory Applications were filed in accordance with Rule 10.05 of the Rules of the Supreme Court , 1986 , S.N.L. 1986, c. 42, Sch. D . These Interlocutory Applications sought an Order that the Originating Application for judicial review that was filed by Mr. LaSaga on May 24, 2018 be set aside. [ 3 ] The parties filed Briefs. These were detailed and were very helpful. Mr.

Oakley’s counsel did not take

part in the

submissions. He indicated that he was essentially taking a watching brief. The parties gave their oral submissions on January 10, 2019. Ihad the benefit of the case law that was provided by the parties as well as the oral decision of my colleague, Justice Knickle, in a mattercalled Young v. Clarke (18 December 2017), Corner Brook 201704G0206 (N.L.S.C.) and the very recent decision of November 30, 2018of our Court of Appeal in the same case, Young v.

Clarke, 2018 NLCA 67. [4] The issue before the Court is whether the Originating Application should be set aside in accordance with Rule 10.05(1)(a).That Rule states: “a defendant may, at any time before filing a defence or appearing on an application, apply to the Court for an ordersetting aside the originating document or service thereof on the defendant”. [5] In this type of matter, the principles governing the relationships among unions, their members, and employers are well-established as set out in the Intervenors’ submissions, the case law, and the two cases from this jurisdiction which I mentioned. [6] The parties to a grievance proceeding or a judicial review of an arbitration award are the unions and the employers.Individual union members are not parties for those purposes (See Noël v.

Société d’énergie de la Baie James, 2001 SCC 39 at paragraphs62 and 63). [7] There are three exceptions to the standard rule that have been recognized in the case law. Those exceptions have been set outin multiple decisions. For example, in the decision from our Court of Appeal, Young v. Clarke, in paragraph 6, Hoegg, J.A. stated in part: 6. . . . Narrow exceptions to this rule have been recognized in the jurisprudence.

They are: (1) where the collective agreement confers aright on the union member to seek judicial review; (2) where the union takes a position adverse to the member such that the proceedingsare unfair; and (3) where the union’s representation by the member is so deficient that the member must be given the right to pursuejudicial review (Migneault v. New Brunswick (Board of Management), 2016 NBCA 52 , 452 N.B.R. (2d) 223, at para. 8; Yee v.Trent University, 2010 ONSC 3307 , 2010 ONSE 3307, 320 D.L.R. (4th) 746; and Misra v.

Toronto (City), 2016 ONSC 1011, 345 O.A.C. 217). [8] Both Intervenors in their submissions canvassed the law in respect to each exception and argued that none of these exceptionsapply to Mr. LaSaga. They also referred extensively to the decision of Knickle, J. in Young v. Clarke. Counsel argued that this decisionis directly on point with the matter involving Mr. LaSaga. That matter involved the same parties, the same question, the same legislation,and the same collective agreement. [9] Mr. LaSaga takes a contrary view. However, neither Mr.

LaSaga’s arguments in his written submissions nor in his oralsubmissions persuade me that he comes within the three exceptions I referenced earlier. [10] I specifically adopt the statements of Knickle, J. and our Court of Appeal in deciding the appeal regarding Young v. Clarke asbeing completely applicable to this matter involving Mr. LaSaga. [11] Based on my review of the Interlocutory Applications, the submissions of the parties, and the case law, I find that Mr. LaSagadoes not have standing to bring the Originating Application.

Therefore, I order that the Originating Application of Roger LaSaga datedand filed on May 24, 2018 seeking judicial review of the arbitration award of James Oakley, the Respondent herein, be set aside inaccordance with Rule 10.05(1)(

a) of the Rules of the Supreme Court, 1986. I direct that costs in the amount of $500 be awarded to eachof the First Intervenor and the Second Intervenor. [12] That is my decision in the matter. I would ask either Mr. Pink or Ms. Reid to prepare an Order to that effect since you representthe Intervenors in the matter. _____________________________ Brian F. Furey Justice