Court of Appeal for Ontario

Date: March 19, 2018 Docket: C63978

Judges: Feldman, Watt and Paciocco JJ.A.

Between

FCI Concrete Forming Inc. and FCI Concrete Holdings Inc. Plaintiffs (Appellants)

and

Buttcon Limited, Carpenters' District Council of Ontario, United Brotherhood of Carpenters & Joiners of America, Local 494, Tomi Hulkkonen and Tony Ianuzzi Defendants (Respondents)

Counsel

Tony Van Klink, for the appellants

Daniel Shields and Hendrick Nieuwland, for the respondents

Heard and released orally: March 14, 2018

On appeal from: the order of Justice Russell Raikes of the Superior Court of Justice, dated May 29, 2017.

Reasons for Decision

[1] The appellants submit that the motion judge erred by staying this action and finding that the "essence of the dispute" is an unfair labour practice contrary to s. 76 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, and that the Labour Relations Board therefore has the exclusive jurisdiction over the dispute.

[2] The appellants argue that the essence of their claim is damages for conspiracy to injure, and, while the nature of the steps taken to carry out that conspiracy arose from actions by the respondents in a labour relations context, that is incidental to the issue that is to be determined in the action, which is whether what they did amounted to a conspiracy to injure.

[3] We agree with the motion judge that an examination of the statement of claim does not support the appellants' characterization of the claim or of the dispute.

[4] For example, at para. 41 of the claim, the plaintiff pleads in relation to an impugned grievance filed by the union, that "the filing of the grievance was an abuse of process." Therefore, the tribunal hearing the claim will have to decide the propriety of the grievance, a matter clearly of a labour relations nature within the purview of the Board.

[5] The appellant also disputes whether s. 76 of the Act, which gives the Board its jurisdiction over unfair labour practices, covers the allegations as pleaded. We agree with the respondents that that issue will be for the Board to determine.

[6] As we therefore see no error in the conclusion reached by the motion judge, the appeal is dismissed with costs fixed at $15,000 inclusive of disbursements and HST.

"K. Feldman J.A."

"David Watt J.A."

"David M. Paciocco J.A."