COURT OF APPEAL FOR ONTARIO
CITATION: Limen Group Ltd. v. Blair, 2014 ONCA 680
DATE: 20141003
DOCKET: C59045
Doherty, Pepall and Tulloch JJ.A.
BETWEEN
Limen Group Ltd., Limen Group Construction Ltd., and Limen Masonry (2003) Inc.
Appellants (Plaintiffs)
and
John Blair on his own behalf and on behalf of all the members of the Masonry Industry Employers’ Council of Ontario,
John Blair on his own behalf and on behalf of all the members of the Ontario Masonry Contractor Association – BACU Bargaining Committee,
Kerry Wilson on his own behalf and on behalf of all the members of the Brick and Allied Craft Union of Canada, and
Kerry Wilson on his own behalf and on behalf of all the members of the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers
Respondents (Defendants)
Daniel J. Shields and Hendrik T. Nieuwland, for the appellants
Lorne A. Richmond and Charles Sinclair for the respondents Kerry Wilson, the Brick and Allied Craft Union of Canada and the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers
David Bannon and Robert Frank for the respondents John Blair, Masonry Industry Employers’ Council of Ontario and the Ontario Masonry Contractor Association – BACU Bargaining Committee
Heard and released orally: September 23, 2014
On appeal from the order of Justice Stephen E. Firestone of the Superior Court of Justice, dated July 7, 2014.
By the Court:
Introduction
[1] The appellants are unionized masonry contractors in the industrial, commercial and institutional (“ICI”) sector of Ontario’s construction industry. They appeal the July 7, 2014 order of Firestone J. in which he stayed their action against the respondents and declined to grant injunctive relief.
Background Facts
[2] The respondents, BACU and OPC, are construction trade unions representing bricklayers including bricklayers employed by the appellants.
[3] The respondents, MIECO and OBBC, are organizations that represent employers in the masonry sector of the construction industry. This includes the appellants. MIECO is a designated employer bargaining agency under the Labour Relations Act, 1995 (“LRA”). OBBC has not been so formally designated.
[4] The LRA requires collective agreements in the ICI sector to be bargained by trade, on a provincial basis, by an employer bargaining agency and an employee bargaining agency. Bargaining agencies in the ICI sector negotiate a single, provincial collective agreement which binds all unionized employers and employees in a trade group and remains in force for three year periods.
[5] In 2004, the Ontario Labour Relations Board (“OLRB”) ordered BACU and OPC to jointly bargain two bricklayer collective agreements which were to contain identical terms and conditions. The collective agreements are binding on the appellants.
[6] The respondents take the position that these and successor collective agreements prohibit individual bargaining including independent contractor agreements between masonry contractors such as the appellants and individual bricklayers.
[7] In April 2014, the respondents entered into a Memorandum of Agreement which was stated to clarify the prohibition in the two collective agreements and to provide for robust enforcement mechanisms for breaches of the prohibition.
[8] The appellants have entered into independent contractor agreements with certain bricklayers whom they describe as “high performing”.
Appellants’ Action
[9] In June 2014, the appellants commenced an action against the respondents. They claim, among other things, that the Memorandum of Agreement and the two collective agreements are unlawful and void. In their statement of claim, they seek: a declaration that the Memorandum of Agreement and the collective agreements are void, injunctive relief restraining the respondents from preventing the appellants from entering into independent contractor arrangements, damages for conspiracy, intimidation, inducing breach of contract and/or causing loss by unlawful means and punitive, exemplary and/or aggravated damages.
Motion Judge’s Decision
[10] The motion judge stayed the appellant’s action on the basis that the essential character of the parties’ dispute was one of labour relations over which the OLRB has exclusive jurisdiction. He ordered that the action be stayed.
[11] He also concluded that notwithstanding that the court retained its inherent jurisdiction to grant injunctive and interim relief, he declined to exercise his discretion in that regard.
Analysis
[12] In our view, the motion judge applied the correct test and reached the right result.
[13] The essential character of the parties’ dispute clearly falls within the Board’s exclusive jurisdiction – indeed, the anchor of the appellants’ action is the illegality of the Memorandum of Agreement and the two collective agreements. The appellants’ complaint that the Act contemplates one seamless provincial collective agreement and that the OBBC owes no duties or obligations to the appellants does not alter the essential character of the dispute.
[14] Moreover, the appellants have avenues available within the labour relations regime to challenge the validity of the Memorandum of Agreement and the collective agreements. In particular, we are not persuaded that there is a legislative gap that would effectively prevent the appellants from obtaining a Board order, making any order obtained against MEICO on the legality of the Memorandum of Agreement and collective agreements, applicable to OBBC. There is no deprivation of the ultimate remedy sought by the appellants.
[15] Although not pressed by the appellants in oral argument, we are also of the view that the motion judge did not err in refusing injunctive relief. He correctly noted that the court had jurisdiction but declined to grant interlocutory relief. We agree with this determination.
[16] The appeal is dismissed. The appellants are to pay each of the respondents $12,500 in costs inclusive of disbursements and applicable taxes.
“Doherty J.A.”
“S.E. Pepall J.A.”
“M. Tulloch J.A.”