Labourers' International Union of North America, Local 183 v. Dominion Sheet Metal & Rooting Works, 1996 CanLII 11199

[1996] OLRB REP. SEPTEMBER/OCTOBER 795

0340-95-R; 0342-95-R; 2643-95-R; 2644-95-R; 2645-95-R; 2658-95-R; 2659-95-R; 2660-95-R; 2661-95-R; 2674-95-R; 2675-95-R; 2734-95-R; 2758-95-R; 2760-95-U; 2781-95-R; 2782-95-R; 2783-95-U; 2830-95-R: 2831-95-U; 2832-95-R; 2989-95-U; 3378-95-U; 3659-95-R; 4247-95-R; 1111-96-U Labourers' International Union of North America, Local 183, Applicant v. Dominion Sheet Metal & Rooting Works, Responding Party v. Canadian Union of Shinglers & Allied Workers, Intervenor #1 v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor #2; Labourers' International Union of North America, Local 183, Applicant v. Chislett Asphalt Roofing Corporation, Responding Party v. Canadian Union of Shinglers & Allied Workers, Intervenor #1 v. Toronto - Central Ontario Building and Construction Trades Council, Intervenor #2 v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Intervenor #3; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Jalex Roofing, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Trudel & Son Roofing Ltd., Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Jackson Roofing, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Columbus Aluminum & Roofing Ltd., Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Donia Roofing, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Chouinard Bros. Roofing, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Dell'Angelo Bros. Roofing, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Burnhamthorpe Roofing, Responding Party v. Labourers' international Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Maple Roofing, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Cumbrae Roofing Ltd., Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27 United Brotherhood of Carpenters and Joiners of America, Applicant v. Dominion Sheet Metal & Roofing Works, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Maple Roofing Ltd., Burnhamthorpe Roofing Co. Ltd., Trudel & Sons Roofing & Sheet Metal Ltd., Jalex Roofing Ltd., Columbus Aluminum & Roofing Ltd., Donia Aluminum & Roofing Ltd., Chouinard Bros. Roofing, Jackson Roofing Ltd., Dell'Angelo Bros. Roofing Limited, Responding Parties v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Local 183, Responding Party v. Labourers' International Union of North America, Intervenor #1, v. Dominion Sheet Metal and Roofing Works, Intervenor #2; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Local 183, Responding Party v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Local 183, Dominion Sheet Metal and Roofing Works, Chislett Asphalt Roofing Corporation, Responding Parties v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Responding Party; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Dominion Sheet Metal and Roofing Works, Chislett Asphalt Roofing Corporation, Responding Parties; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, Responding Party v. Dominion Sheet Metal and Roofing Works, Intervenor; Labourers' International Union of North America, Applicant v. Carpenters & Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Canadian Union of Shinglers and Allied Workers, Metropolitan Toronto Shinglers Association c.o.b. as Canadian Shinglers Association, Canadian Shinglers Association, Robert Shewell, Harold Biso, Steven Wolfreys, Responding Parties; Paul Reilly; Ron Goulet, Applicants v. Dominion Sheet Metal and Roofing Works and L.I.U.N.A. Local 183, Responding Parties v. Labourers' International Union of North America, Intervenor; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Chislett Ashpalt Roofing Corporation, Responding Party v. Labourers' International Union of North America, Intervenor; Labourers' International Union of North America, Applicant v. Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Chouinard Bros. Roofing, Donia Aluminum & Roofing Ltd., Burnhamthorpe Roofing Co. Ltd., Jackson Roofing Ltd., Columbus Aluminum & Roofing Ltd., Trudel & Sons Roofing & Sheet Metal Ltd., Responding Parties; Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America, Applicant v. Labourers' International Union of North America, and Labourers' International Union of North America, Local 183, Responding Parties

BEFORE: Lee Shouldice, Vice-Chair.

APPEARANCES: S.B.D. Wahl, J. Moszynski, Rick Weiss, and A. Ianuzzi for the Labourers' International Union of North America and Labourers' International Union of North America, Local 183; David McKee, Gerald Kinsella, Harold Biso, Stephen Wolfreys, and Robert Shewell for Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America; Mark Geiger and Mario Angeloni for Residential Roofers Contractors' Association, on behalf of all contractors except Dominion Sheet Metal and Roofing Works and Chislett Asphalt Roofing Corporation; C.E. Humphrey (on May 17, 1996) and Cheryl Edwards (on July 16, 1996) on behalf of Dominion Sheet Metal and Roofing Works and Chislett Asphalt Roofing Corporation.

DECISION OF THE BOARD; September 3, 1996

I. Introduction

1. These proceedings consist of numerous applications for certification, applications for declarations terminating bargaining rights, and unfair labour practice applications which relate to new roofing work on low-rise homes in the residential sector of the construction industry. These proceedings came on for hearing on the merits on July 16, 1996, after a previous day of hearing on May 17, 1996 devoted to the resolution of various preliminary matters. Subsequent to the May 17, 1996 hearing date, a number of other hearing dates were adjourned while the parties attempted to resolve these proceedings without the need for an adjudicated decision. To date, those settlement efforts have been unsuccessful.

2. At the outset of the hearing on July 16, 1996, a small number of remaining preliminary matters were disposed of after hearing the submissions of counsel. After the lunch break, and prior to the commencement of the calling of evidence, counsel for the Labourers' International Union of North America and Labourers' International Union of North America, Local 183 (hereinafter referred to collectively as "the Labourers"') requested a ruling from the Board regarding the full effect on these proceedings of the decision of the Board in Canadian Union of Shinglers & Allied Workers, [1996] OLRB Rep. Mar./Apr. 215. After hearing brief submissions from counsel for the Labourers' and counsel for Carpenters and Allied Workers Local 27, United Brotherhood of Carpenters and Joiners of America (hereinafter referred to as "the Carpenters"), it was agreed that the hearing would adjourn for the rest of the day, and reconvene on July 17, 1996, in order to hear more detailed submissions from counsel on the point. At the end of argument, counsel requested from the Board that a decision be issued prior to the next day of hearing so as to help guide the parties in the calling of evidence. This is that decision.

3. Prior to dealing in detail with the argument of counsel, I wish to address briefly the question of the participation of the responding party contractors in these proceedings.

II. Participation of the Responding Party Contractors in these Proceedings

4. At the initial day of hearing on May 17, 1996, and again on July 16, 1996, counsel for the Residential Roofers Contractors Association (hereinafter "the R.R.C.A."), which appears on behalf of a number of the individual responding parties to these proceedings, and counsel for Dominion Sheet Metal & Roofing Works and Chislett Asphalt Roofing Corporation (hereinafter "Dominion" and "Chislett", respectively), indicated that their clients were not particularly interested in participating in what currently appears to be a long, drawn out legal dispute between the Carpenters and the Labourers', and therefore would not be attending at the hearing of these proceedings unless it was necessary to do so. As was determined in a previous decision of the Board dated April 16, 1996, the "broad unfair labour practice" allegations subsumed within the "voluntary recognition agreement" files and the unfair labour practice applications will proceed and be determined first, and for the most part those allegations do not implicate the responding parties named in the certification applications. The disinclination of the corporate responding parties to actively participate in those proceedings is not particularly surprising.

5. At the hearing on July 16, 1996, counsel for Dominion and Chislett advised the Board that her clients' determination to not attend the hearings on a regular basis during this phase of the proceedings had been made on the basis of "how the applications are framed, the particulars as filed, the requests for relief as framed", and on the assumption "that they are the final positions" of the trade unions. Counsel stated that she expected to be notified of any Board decisions, and that her clients would abide by any Board directions. Her clients also desired to participate in procedural matters, such as when other Board files will proceed after the completion of this phase of the proceedings.

6. However, counsel indicated that, should any of the parties desire to alter the particulars they rely upon, or the relief claimed, her clients expect the opportunity to participate on the issue of whether such an alteration of pleadings should be permitted. That is, if one of the other parties to the proceedings requests an amendment to its pleadings or desires to alter, amend, or augment the material facts it relies upon, Dominion or Chislett may well desire that counsel attend at the Board to argue the matter. This raises the question of the obligation, if any, on the Board to notify counsel or their clients who choose not to attend at Board proceedings of the current status of the pleadings or positions of the parties to one or more proceedings.

7. Without a doubt, all of the parties involved in these proceedings have been provided with notice of the hearing dates scheduled to hear the evidence and argument on all of the outstanding issues in these proceedings. In fact, more hearing dates have been set in these proceedings and notice of same is provided in paragraph 66 herein. If and when decisions of the Board such as this one are released, the parties and their counsel can, of course, expect to receive a copy of same. The effect of receiving such a decision will be, at least to some extent, to notify the parties and their counsel as to the status of the proceedings, the matters decided, and the issues remaining to be litigated. I note here that in the decision of April 16, 1996, I determined that the order of the proceedings remaining to be litigated after this phase of the case would be determined prior to the commencement of the hearing of those proceedings. All counsel and their clients can expect to have the opportunity to make submissions on that issue if and when the time arises.

8. However, as I made clear to all in attendance on the morning of July 16, 1996, the Board will not be contacting either counsel for the R.R.C.A. or counsel for Dominion and Chislett during the course of these proceedings to advise of matters which arise for argument. The issues in a proceeding are typically framed by the pleadings and particulars filed with the Board by parties to the proceeding. In a perfect litigation world, the evidence adduced by the parties follows the material facts and/or particulars pleaded by the parties and a decision is rendered by the Board on the basis of the evidence heard, which evidence mirrors the pleadings and particulars previously filed.

9. We do not live in a perfect litigation world. Accordingly, during the course of a hearing a party may request leave of the Board to permit the amendment of its pleadings, or the filing of further particulars, so as to facilitate the calling of relevant evidence which had not earlier been known to the party. The Board, in accordance with its Rules of Procedure, has significant latitude to permit the amendment of pleadings, and will, in appropriate circumstances, exercise its discretion to permit the amendment of pleadings and/or the filing of further particulars. Such an amendment of pleadings or filing of further particulars may occur, in a complicated hearing such as this one, on numerous occasions.

10. As I noted at the hearing on July 16, 1996, it is not my intention nor is it my obligation in these proceedings to advise counsel for any of the responding parties who decides not to attend these hearings that one of the parties attending has requested leave of the Board to amend its pleadings or to file further particulars. Amendments requested of pleadings could be of any nature; they could be trivial or substantial; they could alter the potential relief claimed by the parties; they could affect the positions of the parties; and they could affect the responding parties directly or indirectly.

11. In these proceedings, should a request be made to amend one or more of the many pleadings, or to rely upon one or more particulars or facts not currently relied upon, I will hear argument from counsel in attendance as to whether leave to make the amendment or to permit reliance on the particulars ought to be granted in all of the circumstances. If an amendment to a pleading is granted, or one of the parties is granted leave to rely upon particulars not currently filed with the Board, then, depending on the nature of the amendment or the particulars, it may well be appropriate to direct the party amending its pleading or relying upon the particulars to advise all other parties to the proceeding of the amendment, and one or more of the responding parties may then decide to file an amended response, and attend to deal with the consequences of the amendment to pleadings or admission of further particulars previously granted. However, I reiterate that the Board does not intend to advise counsel each and every time the parties who do attend the hearing request an amendment to their pleadings, or desire to call evidence that does not perfectly reflect its pleadings or particulars currently filed. Those parties that don't attend the hearing take the risk that they may miss something important to their interests.

12. Here, counsel for the Labourers' indicated on the morning of July 17, 1996 that he had left a telephone message and/or voicemail message for both counsel for the R.R.C.A. and Dominion and Chislett respecting the events of the afternoon of July 16, 1996, and the intention to argue certain legal issues on July 17, 1996. No response to these messages had been received by counsel prior to the commencement of the hearing on July 17, 1996. It is perfectly acceptable for counsel attending at a Board proceeding to contact absent counsel and advise of the status of the proceeding, if he or she so desires. However, on July 17, 1996, at 9:30 a.m., in the absence of counsel for the R.R.C.A. and Dominion and Chislett, the hearing nonetheless continued.

III. The Issue and the Dispute

13. The issue to be determined arises out of the bottom-line decision of Vice-Chair Surdykowski in Canadian Union of Shinglers & Allied Workers (Board File 0014-95-R, unreported, September 29, 1995), and the reasons for that decision dated April 30, 1996, reported at [1996] OLRB Rep. Mar./Apr. 215 (hereinafter collectively referred to as "the Surdykowski decision"). The question (though not the answer) can be quite simply stated: to what extent is the Surdykowski decision binding in these proceedings? Counsel for the Labourers' argues that the Surdykowski decision determined, finally and authoritatively, an issue raised by the Carpenters in these proceedings - namely the "employee" status of crew leaders in the residential roofing industry. Counsel for the Carpenters disagrees with this interpretation of the Surdykowski decision. This question raises for determination the proper scope and application of the principle of res judicata.

IV. Legal Principles

14. There was very little dispute regarding the applicable legal principles, although counsel did not agree upon the application of those principles to the instant case. I set out, immediately below, the core principles of law applicable to the dispute between the parties.

15. In Ellis-Don Limited, [1992] OLRB Rep. Sept. 999, the Board described the doctrine of res judicata thusly:

16. Res judicata is a form of estoppel. Developed by the courts, the doctrine in its modern form is based on two broad principles of public policy:

(a) that all litigation should have an end; and,

(b) that no party should be forced to litigate the same matter more than once.

The doctrine of res judicata operates to preclude a party or its privies from re-litigating issues (other than through an appellate process) which have been resolved by a final judgement on the merits by a court or tribunal of competent jurisdiction. In effect, such a decision creates two forms of estoppel: cause of action estoppel and issue estoppel. The essence of such an estoppel, regardless of its form, is that a specific final determination by a court or tribunal of competent jurisdiction of a right, question or fact is conclusive evidence thereof in any subsequent proceeding between the same parties or their privies (or, if the judgement is in rem, in any subsequent proceeding) so long as the judgement stands, unless a party otherwise bound by such a previous determination can establish that there is a fact which, if proved, would entirely change the situation and could not, by the exercise of reasonable diligence, have been previously ascertained

16. As noted above, included within the doctrine of res judicata is the concept of issue estoppel. It is that concept which the Labourers' asserts applies to the circumstances before the Board. The excerpt from Ellis-Don Limited, above, identifies the two broad principles of public policy that underlie the use of the doctrine. For the parties to any dispute, there is significant value attached to the finality of litigation between them. This is particularly true in labour relations matters, having regard to the continuing relationships between the parties to many proceedings before the Board. Furthermore, it is an established principle that the same party should not be forced to respond to the same claim in two (or more) proceedings. Both of these public policy concerns (reflecting a desire to avoid duplicative litigation, inconsistent results, and unnecessary expense (both that of the parties and that of the state)) have been identified as pertinent factors for consideration in previous Board decisions (see, for example, Canadian General Electric Company Limited, [1978] OLRB Rep. Apr. 384).

17. However, there are countervailing considerations which must be taken into account. After identifying the considerations which suggest a broader application of the doctrine to labour relations matters, the Board, in Oakwood Park Lodge, [1980] OLRB Rep. Oct. 1501, suggested other considerations which may well lead one to conclude that the doctrine has limited purpose before the Board:

……We do not think that 19th century cases concerning, in many instances, the resolution of property disputes or the devolution of estates, provide a very reliable source of the interpretation of The Labour Relations Act. Even the matrimonial cases do not provide an exact analogy; and it is interesting to note that the notion of an in rem determination has been described by the Supreme Court of Canada in Sleeth v. Hurlbert (1896), 25 5CR. 620 as "a harsh doctrine - a doctrine that can be used to the unjust destruction of individual rights and interests". We were unable to find any case in which the Courts faced a situation identical to that now before us, but even if we had, it must be recognized that as a statutory tribunal with a mandate to administer a statute, monitor relations between employers and employees, and promote orderly collective bargaining, the Board might well have to approach the problem in a way that is different from that of the Courts ... The need for finality, the duplication of proceedings, and the possibility of inconsistent judgments were not considered overriding concerns in these cases. In our view, despite the undoubted utility of the doctrine from an administrative point of view, its complexity and the need to harmonize its principles with the purposes embodied in The Labour Relations Act, fully justify a cautious approach in its application. (at para 20)

18. As noted by the Board in both Ellis-Don Limited, above, and Oakwood Park Lodge, above, the Board is not compelled by law to apply the doctrine of res judicata. However, the Board has had many occasions to apply the principle, in order to ensure that the "two broad principles of public policy" identified above are not defeated. In Arnold's Markets Limited, (1962), 62 CLLC para 16,221, the Board stated, at page 992:

It seems obvious that as a general rule, once a fact or question has been put in issue and directly adjudicated upon in a proceeding before the Board, such adjudication should constitute a final determination of the matter between the same parties and conclusive evidence for or against them in any other proceeding before the Board which involves the same question or fact. It is our opinion that the Board ought, as a general rule, to apply a principle analogous to that of res judicata or estoppel with the result that it must accept an existing decision made by it on the merits as conclusive evidence for or against the parties or their privies in any subsequent proceeding brought before it by the same parties and involving the same questions or facts decided by it in the first decision.

19. The constituent elements encompassed by the principle of res judicata identified by the Board (see, for example, Canadian General Electric Company Limited, above, and Construction Association of Thunder Bay Inc., [1987] OLRB Rep. July 976), courts of law (see, for example, Re Bullen (1971), 1971 CanLII 1029 (BC SC), 21 D.L.R. (3d) 628 (B.C.S.C.)), and in legal texts (see, for example, Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Butterworths, Toronto, 1992), at pp. 990 and following) stem from the oft-quoted work of G. Spencer Bower and A. Turner, The Doctrine of Res Judicata (Butterworths, London, 1969), at paragraph 19. The principle of res judicata is said to apply when:

(1) the alleged judicial decision was what in law is deemed such;

(2) the particular decision relied upon was in fact pronounced, as alleged;

(3) the judicial tribunal pronouncing the decision had competent jurisdiction;

(4) the judicial decision was final;

(5) the decision was, or involved, a determination of the same question as that sought to be contravened in the litigation in which the estoppel is raised; and

(6) the parties to the judicial decision, or their privies, were the same persons as the parties to the proceeding in which the estoppel is raised, or their privies, or that the decision was conclusive in rem.

20. In these proceedings, there was no dispute between the parties respecting the establishment of criteria (1) through (4) as they relate to the Surdykowski decision. The parties did join issue with respect to criteria (5) and (6). Accordingly, legal argument was directed to the establishment of the above two criteria in the circumstances of these proceedings.

21. When it is asserted that the principle of res judicata applies to the circumstances raised in a proceeding, the burden lies with that party raising the estoppel to establish all of the elements of res judicata. As noted above, one of the elements that must be established to found an issue estoppel is that the prior determination involved "the same question" as that sought to be raised in the instant litigation. It is sometimes difficult t~ identify the scope of "the question" or "questions" raised in prior litigation. As is noted by Spencer Bower and Turner in The Doctrine of Res Judicata, at pages 146-153, often judicial determinations may necessarily include, either expressly or implicitly, some lesser determinations of fact or law which are essential or fundamental to the main determination. These lesser determinations may give rise to an issue estoppel. Courts of law have struggled with the problem of identifying those "lesser determinations" which may found an issue estoppel.

22. Even if it is evident that a certain issue was determined in a previous proceeding, and that it is also raised in a current proceeding, an issue estoppel need not necessarily apply. It is now well-established in Canada that the principle of res judicata extends only to determinations which were fundamental to the earlier decision said to found the estoppel. The leading Canadian authority is Angle v. Minister of National Revenue (1974), 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544, a decision of the Supreme Court of Canada. In that case, the majority of the Court, speaking through Dickson J. (as he then was), adopted the description of the nature of the inquiry contained in Spencer Bower and Turner, The Doctrine of Res Judicata, at pages 181 and 182, which description is as follows:

In order to make this essential distinction one has always to inquire with unrelenting severity - is the determination upon which it is sought to found an estoppel so fundamental to the substantive decision that the latter cannot stand without the former. Nothing less than this will do.

It is pertinent to note that the Spencer Bower and Turner observed on the same pages that "other determinations, without which it would still be possible for the decision to stand, however definite be the language in which they are expressed, cannot support an issue estoppel...". It is also noteworthy that the test adopted by Dickson J. in Angle was recently applied by the Ontario Court of Appeal in Rasanen v. Rosemount Instruments Limited (1994), 1994 CanLII 608 (ON CA), 17 O.R. (3d) 267 (hereinafter referred to as "Rasanen"), at p. 278.

23. Also of some relevance is the following summary of the law extracted from The Canadian Encyclopaedic Digest (3d), Volume 10, at paragraphs 181 and 182 (footnotes omitted):

Estoppel by matter of record, or the principle of res judicata, applies to the particular issue that was determined by the earlier judgment, but not to collateral facts forming part of the evidence on which that issue was determined. The mere fact of evidence having been brought forward to substantiate or defeat one issue does not prevent a party from bringing forward the same evidence in a subsequent action between the same parties, either to maintain or defend other issues therein raised

The true test is identity of issue. The question then is whether the judgment is conclusive, not merely as to the point actually decided, but as to any matter which is necessary to decide, and which is actually decided as the basis of the decision itself, though not directly in issue.

24. With regard to the concept of "parties and their privies", the leading Ontario decision is that of Rasanen. In that decision, the Court of Appeal upheld the determination of a trial judge in a wrongful dismissal action that the issue of whether "reasonable alternate work" had been offered to the employee plaintiff had previously been decided by a referee appointed under the Employment Standards Act, R.S.O. 1990, c. E. 14, and that the principle of issue estoppel made further inquiry regarding the same issue in the civil wrongful suit unnecessary.

25. The reasons of Abella J.A. deal extensively with the question of when one can be considered to be a party or a privy to previous litigation. Mr. Rasanen contended that the referee's decision was not final and binding as against him because he was not a party to the statutory process contained in the Employment Standards Act. Abella J.A. disagreed. At p. 282, she made the following comments:

In my view ... the appellant was, if not a party to the earlier proceeding, certainly a privy. It was a hearing resulting from a claim he initiated. He participated in the two stages which preceded a referee hearing under the Employment Standards Act - the initial investigation and the officer's review of the investigation. The Ministry of Labour, through counsel, appeared on the appellant's behalf for the purpose of promoting his claim and defending the officer's decision in his favour. He not only had notice of every step of the process and hearing, he was present at the hearing, gave evidence, heard the argument of all parties, and submitted or reviewed the relevant documentation filed.

At page 283 of the decision, Abella J.A. continued:

There was a clear community of interest between Rasanen, the employee whose claim was the subject of the proceedings culminating in the referee hearing, and the Ministry of Labour: both were seeking to uphold the prior determination made by an employment standards officer in those proceedings.

Abella J.A. went on to observe that Mr. Rasanen had called the witnesses he desired, introduced the relevant evidence needed, and had an opportunity to respond to the evidence and arguments against him. In her view, Mr. Rasanen, "enjoyed, in short, the full benefits that an official "party" designation would have provided", and had had "a meaningful voice". She concluded that Mr. Rasanen was a party or a privy to the prior proceeding.

26. The other two judgments in Rasanen also address the requirement that the principle of issue estoppel apply only to parties or their privies. Morden, A.C.J.O., who concurs with the application of issue estoppel in the circumstances, briefly notes his view that Mr. Rasanen was not a party to the proceeding before the referee, but that "the interests of the employment standards officer and the employee were the same and, for all practical purposes, counsel for the employment standards officer represented the employment standards officer and the appellant". Accordingly, Morden, A.C.J.O. concludes that "the appellant was, at the least, a privy".

27. Mr. Justice Carthy concurred in the result but disagreed with Abella J.A.'s view as to the application of issue estoppel. With regard to the element of "parties and privies", Carthy J.A. notes that Mr. Rasanen was not a party to the employment standards proceeding. He saw the application of the principle of issue estoppel to Mr. Rasanen as one of policy, and described the issue before the Court as being whether issue estoppel should apply against Mr. Rasanen notwithstanding his non-party status before the referee. Focusing upon the "quick and efficient" nature of the relief under the Employment Standards Act, Mr. Justice Carthy observes that that legislation does not contemplate "a wide-open and time-consuming confrontation between the contestants". He concludes that it would be unfair to Mr. Rasanen to consider him so closely associated with the proceeding under the legislation as to invoke issue estoppel against his common law claim for damages.

28. The Rasanen decision has been applied by the Board and by courts of law in numerous Canadian jurisdictions. Counsel brought the following decisions to my attention, each of which I have carefully reviewed: Dableh v. Ontario Hydro et al 1994 CanLII 7432 (ON CTGD), [1994] O.J. No. 2771; Deagle v. Shean Co-Operative Limited, 1995 CanLII 4423 (NS SC), [1995] N.S.J. No. 332; Machado v. Pratt & Whitney Canada Inc. (1995), 1995 CanLII 7281 (ON CTGD), 12 C.C.E.L. (2d) 127; Nigro v. Agnew-Surpass Shoe Stores Ltd. (1977), 1977 CanLII 3406 (ON HCJ), 18 O.R. (2d) 215; Hamelin v. Davis [1996] B.C.J. No. 109; and McIntosh Limousine Service Ltd. [1994] O.L.R.D. No. 2878.

29. Counsel also addressed during argument whether certain determinations made in the Surdykowski decision were determinations in rem and therefore not subject to the requirement that there be an identity of parties or their privies in the litigation. Counsel for the Labourers' relied upon the analyses of the Board found in Canadian General Electric Company Limited and Construction Association of Thunder Bay Inc., above.

30. There are two different types of judicial decisions. Some decisions determine the rights and obligations as between only the litigants to the proceeding. Other decisions, though affecting the interests of the litigants, also determine or declare the status of the parties in regards to the world at large. The former decisions are referred to as decisions in personam, and the latter decisions are termed decisions in rem.

31. In both of the Board decisions referred to above in paragraph 29, the Board adopted as an accurate description of an in rem decision the following excerpt from The Canadian Encyclopaedic Digest (3d) Volume 10, at what is now paragraph 227:

A judgment in rem is universally binding. It is an adjudication pronounced upon the status of some particular subject matter by a tribunal having competent authority for that purpose. Such an adjudication, being a solemn declaration from the proper and accredited quarter that the status of the thing adjudicated upon is as declared, concludes all persons from stating that the status of the thing adjudicated upon was not that declared by the adjudication. Judgments in rem are conclusive against all the world, not only as the res itself, but also as to the grounds upon which the tribunal professed to decide or may be presumed to have decided.

32. It is the application of the above principles, therefore, that will determine the issue raised herein.

V. The Decision

33. I am of the view that the Labourers' have not established the elements of the test described above in paragraph 19 with regard to those matters which it alleges were established by the Surdykowski decision. My reasons for reaching this decision are set out below.

VI. Reasons for Decision

(a) What was Determined by the Surdykowski Decision

34. At the core of the current dispute between the parties is a differing opinion of whether the Surdykowski decision was, or involved, a determination of the "same question" as is raised in these proceedings, and also whether the questions or issues decided were fundamental to the decision rendered. Accordingly, it is critical to consider first just what question or questions was or were determined by the Surdykowski decision.

35. The natural starting point for determining what question or questions was or were determined by the Surdykowski decision is the decision of September 29, 1995. That Board proceeding involved an application to terminate bargaining rights brought under what was, at the time, section 61 of the Labour Relations Act. The applicants White, Brouwers and Cyr had applied to the Board for a declaration that the Canadian Union of Shinglers & Allied Workers (hereinafter "CUSAW") no longer represented employees in certain bargaining units. The bargaining units were created as a result of certain voluntary recognition agreements which had been signed by the CUSAW and various roofing contractors. Section 6 1(3) of the Act put the onus of establishing that the trade union was entitled to represent the employees "on the parties to the agreement". In fact, the "employers" which were bound to what the CUSAW asserted were "collective agreements" took the view that the CUSAW was not a "trade union" for the purposes of the Act and as there had never been a previous Board finding that the CUSAW was a "trade union", the CUSAW proceeded first to call evidence to establish that it was.

36. At the end of the CUSAW's evidence, a non-suit motion was brought by counsel for the applicants. As described in the decision of Mr. Surdykowski dated September 29, 1995, the motion was entertained without putting any of the applicants or the intervenors to its election to call evidence on the basis that the motion was framed to focus on what Mr. Surdykowski styled "the fundamental issue in [the] application; that is, the issue of whether the CUSAW is a "trade union" within the meaning of the Labour Relations Act."

37. Mr. Surdykowski's conclusions are set out at paragraphs 7, 8 and 9 of the decision of September 29, 1995:

38. Having considered the evidence of the CUSAW and the representations of the parties with respect to the applicants' motion, I am satisfied that the CUSAW is not a trade union within the meaning of the Labour Relations Act.

39. Having concluded that the CUSAW is not a trade union within the meaning and for purposes of the Labour Relations Act, it follows that any agreement the CUSAW has with anyone cannot be a "collective agreement" within the meaning of the Act either. Therefore, the CUSAW holds no bargaining rights under the Act and is not entitled to represent employees for collective bargaining purposes under the Act.

40. in the result, the applicants' motion is allowed. This application is also therefore allowed.

The Board proceeded to declare that the CUSAW was not entitled to act as a bargaining agent for or to otherwise represent the employees of Dominion or Chislett (the two affected roofing contractors).

38. On April 30, 1996, Mr. Surdykowski released his reasons for reaching the above-noted decision. The Vice-Chair describes, in detail, how the hearing proceeded and how the non-suit motions arose. He describes, further, the issue of "trade union" status, and again notes that it is "fundamental" to the application before him.

39. With respect to the issue of whether the CUSAW was an "organization of employees formed for purposes that include the regulation of relations between employees and employers", Mr. Surdykowski described the evidence of the CUSAW in paragraphs 43 to 64, inclusive, of his reasons for decision. This evidence was given by Mr. Harold Biso, who is described as a co-founder and principal of the CUSAW, and Ms. Susan Bird, a Vice-President and Senior Consultant Administrator with J.J. McAteer & Associates Incorporated, which provides consulting and administration services for multi-employer health, welfare, and pension plans, and which was involved with the CUSAW in that regard.

40. Mr. Surdykowski notes that he was obliged to accept the evidence of Mr. Biso "as representative of how the industry operates". He states that "it was clear on the evidence before [him]" that crew leaders are employers and not employees, and that the CUSAW was created and operated by and primarily for the benefit of crew leaders. Mr. Surdykowski proceeds to describe the low-rise, residential roofing industry in some detail, based upon the testimony of Mr. Biso. He notes, for example, at paragraph 58, that "it appeared on the evidence before the Board" that the vast majority of crew leaders have two or more crew members, and he sets out the number of crew members on the crews of Messrs. Cowie, Shewell, Wolfreys, Rogers and Biso, the founders of the CUSAW.

41. Mr. Surdykowski proceeds to describe, based on the evidence before him, how crew leaders obtain work for their crews, and how crew members are supervised by crew leaders. The crew leaders' control over "employment concerns" is noted, as is the method of compensation of both crew leaders and crew members. It is observed that Messrs. Cowie, Shewell, Wolfreys, Rogers and Biso continue to profit or lose from the work performed by their respective crews while attending to the affairs of the

CUSAW.

42. The critical paragraphs for the purposes of the issues before me are paragraphs 65 through 67 of the April 30, 1996 reasons for decision. They read as follows:

43. 1 was satisfied that crew leaders effectively hire, assign work to, supervise, discipline, and fire crew members. Crew leaders obtain work and establish the rates of pay for their crew members on an individual basis, earn income from the labour of crew members, and from the control they exercise over their crew members they obtain the chance to make a profit but also run the risk of incurring a loss. They also consider and treat themselves as employers for income tax purposes. In the result, I was satisfied that crew leaders are employers for purposes of the Labour Relations Act.

44. I note that my conclusion in that respect did not depend in any way on the number of crew members engaged by the crew leaders. I was satisfied on the evidence before the Board that all crew leaders are employers, whether they have any crew members or not.

45. 1 was confirmed in my conclusion in this case by the relationship between crew leaders and roofing contractors. The relationship is one of contractor and subcontractor, both in Mr. Biso's evidence and on the agreement the CUSAW has managed to persuade a number of the roofing contractors to sign. Like the August 24, 1988 agreement before it, the current agreement is clearly intended to govern relations between crew leaders and the roofing contractors, and is not for the benefit of crew members, notwithstanding the use of terms commonly found in collective agreements.

46. Mr. Surdykowski summarizes the nature of his ruling at paragraph 70 of his reasons for decision dated April 30, 1996:

47. But the issue in this case was not whether some members of the CUSAW are not "employees", and what effect that might have. The issue was whether it is an organization of employees. It clearly is not. The five individuals who formed the CUSAW, who are its officers, and who dominate the organization in every way, are employers. Although it may have accepted "employees" as members, it, like the CSA Inc. and the MTSA before it, is clearly an organization which has been formed by and is operated for the benefit of employers; that is, the crew leaders. It is not an "organization of employees". Accordingly, it cannot be a trade union. Since only a trade union can obtain bargaining rights or enter into collective agreements under the Labour Relations Act, the CUSAW holds no bargaining rights and has no collective agreements. Accordingly, the declarations made as aforesaid were appropriate.

48. What, then, was determined by Mr. Surdykowski in the previous proceeding? In my view, the following questions and issues were at the core of Mr. Surdykowski's decision:

(a) Was the CUSAW entitled to represent the employees in the bargaining units on the date on which the roofing contractors voluntarily recognized the CUSAW as bargaining agent?

(b) Was the CUSAW a "trade union" within the meaning of the Labour Relations Act?

(c) Were the agreements that the CUSAW had with the roofing contractors "collective agreements" within the meaning of the Act?

Mr. Surdykowski answered each of these questions in the negative. In order to reach these answers, it was necessary for Mr. Surdykowski to consider the creation of the CUSAW, and the "employer status" of its creators - namely Messrs. Biso, Wolfreys, Shewell, Cowie and Rogers. In that regard, Mr. Surdykowski found, on the basis of evidence adduced largely from Mr. Biso, that these five crew leaders, the catalysts behind the CUSAW and its predecessors, were employers for the purposes of the Act. There can be no doubt that this finding - that Messrs. Biso, Wolfreys, Shewell, Cowie and Rogers are employers for the purposes of the Act - was one which was so fundamental to the substantive issues decided by him that the latter could not stand without it.

45. Counsel for the Labourers', though, argues that the Surdykowski decision ought to be read more broadly, and that his conclusions that crew leaders in general are employers ought to preclude evidence from being called in this proceeding which is intended to establish the contrary. I disagree. First, it is clear from the Surdykowski decision that Mr. Surdykowski had before him the evidence of Mr. Biso, and that his findings of fact were based primarily on that evidence. Mr. Biso, given his apparent prominence in the residential shingling industry, could clearly testify as to many aspects of the industry. But he could hardly have been speaking for every crew leader in the industry, and Mr. Surdykowski certainly does not suggest that Mr. Biso asserted to do so. Counsel for the Carpenters, in essence, states that certain cases are different, and that these applications are amongst those cases. Whether that is, in fact, so remains to be seen. But Mr. Biso's evidence before Mr. Surdykowski could hardly have been exhaustive of the entire industry. Mr. Surdykowski's assessment that crew leaders, generally, are "employers" was based on the evidence he had before him, which he acknowledged he was bound to accept "as representative of how the industry operates".

46. Just as importantly, however, it is clear from the Surdykowski decision that the findings by Mr. Surdykowski relating to the nature of crew leaders generally was not in any way "so fundamental to the substantive decision" that his decision could not stand without it. Mr. Surdykowski's determination that the CUSAW was not an "organization of employees" was based most critically upon his analysis of the status of the five individuals who formed the CUSAW, "who are its officers, and who dominate the organization in every way...". Mr. Surdykowski found that these individuals are employers. To that extent, there is no dispute that that issue was determined by Mr. Surdykowski - and counsel for the Carpenters does not suggest otherwise.

47. In my view, the above-noted "questions" or "issues" were the core of the Surdykowski decision, and the determination that Messrs. Biso, Wolfreys, Shewell, Cowie and Rogers, as "crew leaders", are employers for the purposes of the Act was fundamental to the questions and issues before Mr. Surdykowksi. However, the assessment by Mr. Surdykowski that crew leaders, generally, were "employers" for the purposes of the Act, however definite that assessment is expressed, was not critical to the issues before him, and therefore the principle of res judicata cannot as a matter of law apply to that finding.

48. Although it is not necessary to comment on the further element of res judicata in light of my decision above, I think it is appropriate, nonetheless, to discuss my assessment of the sixth element directly below.

(b) Identity of Parties/In Rem Decision

49. There can be no doubt that there is not, in these proceedings, an identity of parties. The Surdykowski decision involved five separate parties: Joe White, Hank Brouwers, Paul Cyr, the CUSAW, and the R.R.C.A.. The entity against which the estoppel is raised - the Carpenters - was not a party to the prior Board proceeding. This much is self-evident.

50. Counsel for the Labourers' submitted that, at the very least, the appearance of Messrs. Biso, Shewell and Wolfreys on behalf of the Carpenters in these proceedings ought to permit for the conclusion that they were privies to the CUSAW, a party to the previous litigation, and that they are also privies to this litigation. As the issue estoppel which is being asserted in these proceedings is being asserted against the Carpenters, it was submitted that there was no good reason to preclude the application of the principle in these proceedings.

51. There can be no doubt that the Ontario Court of Appeal decision in Rasanen was a catalyst to a broader interpretation by the Courts of the concept of "privy" status. For example, in Machado v. Pratt & Whitney Canada Inc., supra, the plaintiff sued the corporate defendant for damages for wrongful dismissal, and also sued a number of individuals for damages in tort, claiming that they intentionally or negligently induced a breach of contract, and for injurious falsehood, defamation, conspiracy to injure and conspiracy to perform an unlawful act. The plaintiff had also brought an employment standards claim for termination and severance pay. A referee appointed under that legislation concluded that the plaintiff had committed "wilful misconduct" and therefore was disentitled to termination and severance pay. The individual defendants in the civil action were witnesses before the referee in the employment standards proceeding, and had testified as to the conduct of Mr. Machado.

52. In the civil action, the defendants brought a motion before the Court to dismiss the action, on the basis of the principles contained in the Rasanen decision. Madam Justice E. MacDonald of the Ontario Court (General Division) applied the decision of the Court of Appeal and dismissed the claims as against the various defendants. In doing so, she addressed the issue of whether the individual defendants to the civil action had been "privy" to the prior employment standards litigation. She concluded that they had been, in fact, privy to the statutory claim, on the basis that the allegations made by the three individual defendants "could be described as Pratt & Whitney's case" before the adjudicator.

53. Applying a similar analysis to the facts before the Board, it could be suggested that Messrs. Wolfreys, Shewell, and Biso (all of which appeared on behalf of the CUSAW in the previous Board litigation), as they appear here before the Board in these proceedings on behalf of the Carpenters, ought to bind the Carpenters to all of the critical findings and determinations made in the Surdykowski decision. I am, however, satisfied that it would not be appropriate, in the circumstances, to apply such an analysis.

54. In Oakwood Park Lodge, above, the Board observed that there were some good reasons for the limitations placed by the Courts on the application of the doctrine of res judicata. At paragraph 13, the Board noted as follows:

It is clear from the two Radio Shack decisions that the Court has sanctioned the use of a doctrine analogous to res judicata - at least as between the same parties. It is also evident that in approving that use, the Court sought to accommodate both the rights of a party to a fair hearing, and the practical or administrative problems which might arise if issues previously resolved between the parties had to be relitigated. The Court was careful to point out however, that the requirements of natural justice had been satisfied because the findings subsequently relied on by the Board had been established in an earlier proceeding between the same parties in which both had had a full opportunity to present their evidence and make their submissions.

See also Valentine Enterprises Contracting Limited, [1981] OLRB Rep. June 807, which quotes the above extract from Oakwood Park Lodge with approval.

55. Quite simply, I do not believe that there is a sufficient degree of interest between the five individuals who created the CUSAW, on the one hand, and the Carpenters, on the other, to permit for the conclusion that the Carpenters ought to be considered to have been a "privy" to the former litigation. If anything, the interests of the Carpenters in the previous litigation would have been aligned with those of White, Brouwers, and Cyr, the applicants, as the Carpenters' long-run goal of representing employees in the residential roofing industry could best be achieved by a Board declaration that the CUSAW was not a trade union for the purposes of the Act. To conclude that the Carpenters were a "privy" to the former litigation, because Messrs. Shewell, Biso and Wolfreys have now associated with the Carpenters, would, in my view, unfairly deny to the Carpenters the right to be heard on the issue of the "employee" status of the crew leaders, which issue is raised squarely for determination in these proceedings.

56. I am also of the view that, whether or not the finding in the Surdykowski decision that crew leaders are not "employees" for the purpose of the Act is an in rem decision, I ought not to strictly apply that aspect of the doctrine of res judicata to the circumstances of these proceedings.

57. There are two Board decisions which touch on this issue. The first, Canadian General Electric Company Limited, above, involved an application for certification relating to cost estimators and cost analysts. The employer, relying upon a decision of 24 years vintage which involved another trade union, and which concluded that individuals in these positions ought to be precluded from collective bargaining because of their managerial status, asserted that the principle of res judicata applied to preclude the applicant from denying the managerial status of the cost estimators and cost analysts in the Board proceeding.

58. One of the issues dealt with by the Board was that of the identity of parties and whether the prior decision was of an in rem nature. The Board determined that the earlier decision "dealt with the status of the persons in question as employees under the Act. It was, therefore, a decision of general application or analogous to an in rem decision." Accordingly, the Board concluded that the applicant in the then-current proceeding need not establish an identity of parties. It should be highlighted, though, that the Board did note, at paragraph 26 of the decision, that it had the discretion to decline to apply the doctrine of res judicata, and that there may be situations where a strict application of the doctrine might be best tempered by "industrial relations realities".

59. In Oakwood Park Lodge, above, a similar issue arose. In that case, the Ontario Nurses Association ("ONA") applied to represent 11 registered nurses employed by Oakwood Park Lodge. The employer submitted that none of the nurses were "employees", on the basis of a prior decision of the Board involving another trade union, the Service Employees International Union. In the latter decision, the Board concluded that registered nurses exercised managerial functions and were not "employees" for the purposes of the Act.

60. As a result of the difference in parties to the proceedings, the Board addressed the issue of whether the prior Board decision was an in rem decision, which bound ONA for the purposes of the proceeding before it. The Board noted the prior decision in Canadian General Electric Company Limited, above, reproduced the critical passage excerpted above in paragraph 58, and observed as follows, at paragraph 18:

No previous judicial or Board authority was cited in support of this conclusion; moreover, since the Board subsequently found that there had been change in the statute, and therefore "the law" since the 1954 decision, its observations were obiter and not strictly necessary to its final decision.

The Board made reference to the caveat contained in the Canadian General Electric Company Limited decision, also noted above in paragraph 58.

61. Ultimately, the Board did not preclude ONA from asserting the "employee" status of he registered nurses in question. After noting that the doctrine of res judicata ought to be applied in a "cautious" manner, the Board noted at paragraph 21 that:

We do not think that we are compelled as a matter of law to bar the applicant from relitigating the status of the respondent's employees; nor having considered the decided cases and the countervailing considerations do we think that as a matter of policy, the applicant should be prevented from leading its evidence and making its submissions. We accept [ONA's] contention that important statutory rights are involved and that the Board should not lightly deny its right to a hearing on the merits - especially where, as here, it was not a party to the earlier proceeding and (unlike the employer in Radio Shack) it has never had the opportunity to put forward its position.

62. I agree with these observations. Whether the "employee" status of crew leaders as determined by the Surdykowski decision is or is not an in rem decision, I would not strictly apply the doctrine of res judicata to the circumstances of these proceedings. As noted above, the assessment made by Mr. Surdykowski was made on the basis of the evidence of one individual involved in the industry - Mr. Biso. And although the conclusion reached by Mr. Surdykowski was very likely supportable on the basis of that evidence, the evidence of Mr. Biso could hardly be considered to be exhaustive of the industry. Important statutory rights of representation are at issue in these proceedings, and in light of that I am loathe to preclude the Carpenters from asserting that crew leaders in certain circumstances are "employees".

63. For all of these reasons, I dismiss the Labourers' motion. The hearing in these matters will proceed on the merits in accordance with the terms of this decision and the decision of April 16, 1996.

VI. Prima Facie Case Motion - Board File 1111-96-U

64. I have carefully reviewed all of the submissions filed by counsel regarding this proceeding. For reasons to follow at a later date, I am of the view that the application in Board file 1111-96-U does not disclose on its face a case for the orders and remedies requested, and I therefore dismiss the application. I note for the benefit of counsel, particularly counsel for the Carpenters, that my decision does not turn upon whether or not the proposed "amendments" to the application would be permitted.

VII. Miscellaneous Matters

65. Board Files 2760-95-R and 3378-95-U ought to be heard in connection with these global proceedings. Accordingly, I have seized myself of those matters and they have been added to the other proceedings previously before me. The name of one of the applicants in board File 3378-95-U is amended to read "Ron Goulet".

66. These proceedings are currently scheduled to reconvene on September 6, 1996, and on the following days, at "the Boardroom", 400 University Avenue, Toronto, Ontario, 6th Floor, at 9:30 a.m.:

September, 1996:10, 11, 12, 17, 18, 19, 24, 25, 26.

October, 1996: 16, 17, 18, 22, 23, 24, 29, 30, 31.

February, 1997: 12, 13, 14, 19, 20, 21.

March, 1997: 5, 6, 7, 12, 13, 14, 26, 27, 28.