COURT OF APPEAL FOR ONTARIO

CITATION: A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto, 2009 ONCA 292

DATE: 20090408

DOCKET: C48541

Cronk, Gillese and Epstein JJ.A.

BETWEEN

A.C. Concrete Forming Ltd.

Plaintiff (Appellant)

and

The Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity and Harold Piccininni

Defendants (Respondents)

Howard Winkler, for the appellant

Carl W. Peterson and Robert Bell, for the respondents

Heard: December 3, 2008

On appeal and cross appeal from the order of Justice Beth A. Allen of the Superior Court of Justice dated January 17, 2008, and reported at 2008 CanLII 5106.

ADDENDUM

Gillese J.A.:

[1] After the court’s decision in this matter was rendered, A.C. Concrete advised the court that, through inadvertence, the record before the motion judge and this court was incomplete and inaccurate. It asks the court to accept a corrected record and reconsider whether to permit that part of its claim based on alleged misuse of the Industry Fund to proceed.

[2] The inaccuracies in the record relate to the proceedings before the Board in respect of the unfair labour practice complaint brought by A.C. Concrete against the Association. The record shows that, with leave, A.C. Concrete withdrew the complaint in its entirety. What the record fails to show is that prior to withdrawal, the Board issued two interim decisions and struck those parts of the complaint that related to the alleged misuse of the Industry Fund. Neither of the Board’s interim decisions was in the record or brought to the attention of the courts.

[3] The Board’s first interim decision is dated June 27, 2005. In it, the Board noted that A.C. Concrete alleged that the Association had violated ss. 141 and 167(2) of the Act. It expressed concern about its jurisdiction over certain aspects of the complaint relating to the fees collected by the Association and the manner in which the Association spent its resources. At para. 8, the Board said:

In the context of section 74 applications, the Board has always said that it does not have the jurisdiction to adjudicate disputes arising from the internal workings of a trade union. Similarly here, it appears that the manner in which an association functions and the relationship of that functioning to the objects of the association are within the jurisdiction of the Superior Court of Justice, not the Board.

[4] The Board then directed A.C. Concrete to make written submissions on the matter and gave the Association an opportunity to respond to such submissions.

[5] Further submissions were made to the Board. Neither the complaint nor the further submissions made any reference to s. 143 of the Act.

[6] The Board rendered its second interim decision on November 17, 2005. In it, at para. 5, the Board stated that it would not inquire into the alleged misallocation of the Industry Fund. It struck paras. 18 to 28 of the complaint, saying that the alleged facts did not engage “any of the provisions” of the Act.

[7] Neither party sought a reconsideration or judicial review of the Board’s interim decisions.

[8] The respondents agree that the record is incomplete and the court should receive the two interim Board decisions. They oppose a reconsideration by the court. They say that because s. 143 was not raised with the Board, there is no Board decision on the scope of its jurisdiction under s. 143. Consequently, they say, A.C. Concrete is free to return to the Board for a determination of its allegations relating to the misuse of the Industry Fund, pursuant to s. 143 of the Act. They contend that A.C. Concrete can place the matter before the Board in one of two ways. First, relying on s. 143 of the Act, A.C. Concrete could ask the Board to reconsider its decision to strike those parts of its complaint which relate to the alleged misuse of the Industry Fund. Second, they say that A.C. Concrete could file a fresh complaint, based on s. 143, restricted to the alleged misuse of the Industry Fund. Counsel for the respondents undertook to make no argument before the Board based on issue estoppel, should A.C. Concrete so proceed.

[9] I would not accede to A.C. Concrete’s request that this court undertake a reconsideration. As s. 143 of the Act was never raised in the proceedings before the Board, despite the broad wording in para. 5 of the second interim decision, I do not view the Board as having decided any issues arising out of s. 143, including the matter of its jurisdiction. Consequently, I accept the respondents’ submission that A.C. Concrete may return to the Board for a consideration of its allegation that the Association has violated s. 143 of the Act.

[10] In my view, the question of the scope of the Board’s jurisdiction pursuant to s. 143 is best decided, in the first instance, by the Board. It is a specialised tribunal with acknowledged expertise and experience in a dynamic, complex and sensitive field: see, for example, Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), 1991 CanLII 57 (SCC), [1991] 2 S.C.R. 5, at para. 14; Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 CanLII 220 (SCC), [1996] 1 S.C.R. 369, at para. 57; and International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., 1996 CanLII 210 (SCC), [1996] 2 S.C.R. 432, at para. 24. Pursuant to s. 114(1) of the Act, the Board has exclusive jurisdiction to determine all questions of fact or law that arise in any matter before it. Curial deference is to be shown its decisions, including those determining the scope of its jurisdiction pursuant to its enabling legislation: see Cuddy Chicks, supra, at para. 14. Deference to the Board dictates that it be afforded, in the first instance, an opportunity to opine on the scope of its jurisdiction under s. 143. Furthermore, this would ensure that a reviewing court, if any, would have the benefit of both a complete and accurate record and the Board’s reasoning when considering the matter.

[11] To be clear, nothing in this court’s decision should be taken to preclude the Board and a reviewing court, if any, from considering afresh the scope of the Board’s jurisdiction pursuant to s. 143 of the Act. In light of the incomplete record, the comments of this court in relation to s. 143 are not determinative.

[12] The parties quite properly submit that, in the circumstances, no order as to costs should be made in respect of the request for reconsideration by this court. I agree. Consequently, I would make no order as to costs of this matter.

“E.E. Gillese J.A.”

“I agree. E.A. Cronk J.A.”

“I agree. G.J. Epstein J.A.”