A.C. Concrete Forming Ltd. v. The Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity et al.

[Indexed as: A.C. Concrete Forming Ltd. v. The Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity]

93 O.R. (3d) 529

Court of Appeal for Ontario,

Cronk, Gillese and Epstein JJ.A.

December 22, 2008

Employment law -- Labour relations -- Labour Relations Board -- Jurisdiction -- Employers' Association being exclusive statutory bargaining agent for all employers bound by collective agreement in low-rise residential formwork industry regardless of whether employer was member of Association -- Employer which was not member of Association bringing action against Association for damages for breach of contract, breach of fiduciary duty and intentional interference with economic relations -- Employer alleging that Association discriminated against small contractors and misused Industry Fund to which employers were required to contribute -- Claims falling within exclusive jurisdiction of Labour Relations Board -- Motion judge properly dismissing action for lack of jurisdiction.

A.C. was a low-rise forming contractor. The Association was an accredited employers' association within the meaning of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A and the exclusive statutory bargaining agent for all employers bound by the collective agreement which covered employees working in the low-rise residential formwork industry, even if the employer was, like A.C., not a member of the Association. The collective agreement required all employers bound by it to contribute to the Industry Fund, which was held by the Association. A.C. originally filed an unfair labour practice complaint against the Association with the Labour Relations Board, alleging that it discriminated against small contractors and misused the money in the Industry Fund. A.C. later withdrew that complaint and ultimately commenced an action against the Association for damages for breach of contract, breach of fiduciary duty and intentional interference with economic relations. On a motion by the Association, the action was dismissed for lack of jurisdiction on the basis that A.C.'s claims fell within the exclusive jurisdiction of the Board. A.C. appealed.

Held, the appeal should be dismissed.

The relationship between A.C. and the Association arose from the Act and the collective agreement, and not from a contract between the parties. The essence of A.C.'s claim that the Association misused the Industry Fund related not to a contract but to [page530] the manner in which the Association had represented employers, allegedly preferring the interests of large employers over those of small contractors. The substance of these claims was that the Association had failed to represent A.C. fairly, without discrimination and in good faith. That matter was clearly within the exclusive jurisdiction of the Board. The remaining claims of misuse of the Industry Fund fell within the purview of s. 143 of the Act, which gave the Board jurisdiction to consider the amounts paid by A.C. pursuant to the collective agreement and to determine whether the Association had levied a fee, dues or assessment that was unreasonable or discriminatory. The motion judge did not err in dismissing the action on the basis that the Board had exclusive jurisdiction over A.C.'s claims.

APPEAL from the order of