ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-14-506339

DATE: 20140707

BETWEEN:

LIMEN GROUP LTD., LIMEN GROUP CONSTRUCTION LTD. and LIMEN MASONRY (2003) INC.

Plaintiffs/Responding Parties

– and –

JOHN BLAIR on his own behalf and on behalf of all members of the MASONRY INDUSTRY EMPLOYERS’ COUNCIL OF ONTARIO, JOHN BLAIR on his own behalf and on behalf of all members of the ONTARIO MASONRY CONTRACTORS ASSOCIATION – BACU BARGAINING COMMITTEE, KERRY WILSON on his own behalf and on behalf of all members of the BRICK AND ALLIED CRAFT UNION OF CANADA and KERRY WILSON on his own behalf and on behalf of all members of the ONTARIO PROVINCIAL CONFERENCE OF THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS

Defendants/Moving Parties

Daniel J. Shields and Hendrik T. Nieuwland, for the Plaintiffs/Responding Parties

David Bannon and Robert Frank, for the Defendants, John Blair on his own behalf and on behalf of all members of the Masonry Industry Employers’ Council of Ontario and John Blair on behalf of the Ontario Masonry Contractors Association – BACU Bargaining Committee

Lorne Richmond and Charles Sinclair, for the Defendants, Kerry Wilson on his own behalf and on behalf of all members of the Brick and Allied Craft Union of Canada and Kerry Wilson on his own behalf and on behalf of all members of the Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers

HEARD: June 30, 2014

REASONS FOR DECISION

Firestone J.

[1] The moving party defendants bring these motions pursuant to Rules 1.04, 1.05, 2.03, 3.02 and 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43, for an order dismissing or, in the alternative, staying this action on the ground that the court has no jurisdiction over the subject matter of the action.

Issues for Determination

(a) Is the subject matter of this action within the exclusive jurisdiction of the Ontario Labour Relations Board (“OLRB”)?

(b) Does this court have jurisdiction to grant the injunctive and other interlocutory relief, and if so, should it exercise this authority?

The Parties

[2] The plaintiffs are unionized masonry contractors in the industrial, commercial and institutional sector of Ontario’s construction industry (“ICI sector”). The plaintiffs engage in masonry work in the ICI sector throughout Ontario.

[3] The defendants Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (“OPC”) and Brick and Allied Craft Union of Canada (“BACU”) are construction trade unions under the Labour Relations Act, 1995 (“LRA”), S.O. 1995, c. 1, Sched. A. OPC is the certified employee bargaining agency under the LRA for bricklayers in the ICI sector. The defendant Kerry Wilson is the president of BACU and co-chair of the OPC.

[4] The defendant Masonry Industry Employers Council of Ontario (“MIECO”) is a designated employer bargaining agency under the LRA for masonry contractors who employ bricklayers represented by the OPC and its affiliated bargaining agents in the ICI sector. The defendant Ontario Masonry Contractors Association-BACU Bargaining Committee (“OBBC”) is a committee of the Association, which was established to represent contractors who specialize in the installation of masonry units. The defendant John Blair is the executive director of both MIECO and OBBC.

[5] There are two collective agreements relevant to this litigation (the “Brick provincial collective agreements”): one for bricklayers represented by OPC and a second for bricklayers represented by BACU. The plaintiffs contest the legitimacy of these agreements.

Nature of the Plaintiffs’ Claims

[6] The plaintiffs plead in their statement of claim (“claim”) that bricklayers who have worked for the plaintiffs expressed a desire to be afforded the flexibility of receiving payment through independent operator relationships with the plaintiffs, i.e., to receive payment as self- employment income. The plaintiffs entered into such independent operator payment relationships with certain high-performing bricklayers.

[7] The plaintiffs plead that over time, they were able to develop a roster of high-performing bricklayers in these independent operator relationships. This, the plaintiffs plead, afforded them a significant advantage over their competitors. This competitive advantage, they argue, allowed the plaintiffs to aggressively bid for, and win, masonry projects throughout Ontario. As a result the plaintiffs became very successful and hold a significant market share compared to their competitors.

[8] The plaintiffs plead that the defendants all came to an agreement to act in a manner that would prevent the plaintiffs from continuing to enter into these independent operator payment relationships.

[9] Specifically, the defendants entered into a Memorandum of Agreement (“MOA”) dated April 22, 2014, that purports to amend the Brick provincial collective agreements. This MOA prohibits the plaintiffs from maintaining or entering into these independent operator payment relationships with bricklayers effective July 1, 2014. It imposes on both the plaintiffs and bricklayers significant monetary reprisal if they continue this practice.

[10] Eliminating the plaintiffs’ independent operator payment relationships with their bricklayers, they plead, will cause them significant damage. It will permanently hinder their ability to aggressively bid for future projects, thereby permanently diminishing the plaintiffs’ market share. In addition, the plaintiffs would be subject to monetary retribution if any of them continue or enter into any new independent operator payment relationships with bricklayers on or after July 1, 2014.

[11] At para. 33 of the claim, the plaintiffs plead:

The Defendants have acted unlawfully by entering into the Memorandum of Agreement. In addition, as described above, the OPC and BACU Brick purported provincial collective agreements are themselves unlawful. They are the product of a collective bargaining process that is not authorized under the LRA. Consequently, the amendments to these unlawful agreements through the Memorandum of Agreement [are] also unlawful.

[12] At para. 44, the plaintiffs further plead:

In addition, these independent operator payment agreements were valid and enforceable because the OPC and BACU Brick provincial collective agreements are unlawful, as described above, and therefore their terms and conditions did not govern the relationship between the Plaintiffs and their bricklayers.

[13] As a result, the plaintiffs in this action seek an interim, interlocutory and permanent injunction restraining the defendants from interfering, hindering or preventing the plaintiffs from maintaining or entering into such independent operator payment arrangements; a declaration that the MOA and the Brick provincial collective agreements are void and of no force and effect; damages for conspiracy, intimidation, inducing breach of contract and/or causing loss by unlawful means; and punitive, exemplary and/or aggravated damages.

Analysis

(a) Is the subject matter of this action within the exclusive jurisdiction of the OLRB?

[14] The general approach to be taken in determining whether the subject matter of an action falls within the exclusive jurisdiction of the OLRB was set forth by the Supreme Court of Canada in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929. This approach is summarized in Allarco Entertainment 2008 Inc. v. Rogers Communications Inc., 2009 68464 (Ont. S.C.), at para. 25, as follows:

The court should first determine the substance of the tribunal’s jurisdiction. The essential character of the dispute should then be examined to see if it falls within the tribunal’s exclusive jurisdiction. Even if it does not, the court should determine whether reason exists for the tribunal to determine the dispute nonetheless.

[15] The OLRB has jurisdiction over, among other things, disputes about the legitimacy and scope of a collective bargaining agreement and “the internal affairs of unions in [the ICI] sector”: International Union of Bricklayers and Allied Craftworkers v. Coelho, [1998] O.J. No. 5449 (S.C.), at paras. 6-8, 20. When a dispute within its subject matter jurisdiction comes before the OLRB, the Board may exercise any of the powers set forth in s. 114(1) of the LRA. These are as follows:

The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider a decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[16] As stated in Coelho, at para. 4:

It is important first of all to have regard to the statutory framework. It is apparent that the OLRB is a specialized tribunal with expertise in the area of labour relations. The Ontario Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (“OLRA”) provides (s. 114(1)) that the OLRB “has exclusive jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any manner before it”. That exclusive jurisdiction is fortified by a privative clause (s. 116).

[17] In determining essential character of the dispute, the Ontario Court of Appeal in A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity, 2008 ONCA 864, reconsideration denied, 2009 ONCA 292, confirms the approach to be taken as follows:

To decide whether the Board has exclusive jurisdiction over the appellant’s claims, the essential character of the dispute must be determined. This is not a matter of semantics nor of the legal labels attached to the claims by one of the parties to the dispute—it is the true substance of the dispute that is determinative: see Weber v. Ontario Hydro, 1995 108 (SCC), at para. 52, and Myrtezaj v. Cintas Canada Ltd., 2008 ONCA 277, at para. 55. The essential character of the dispute is determined by reference to the factual matrix of the dispute.

[18] The “essential character of the dispute” in this action, as indicated in paras. 33 and 44 of the claim, includes:

• the unlawfulness and validity of the MOA and collective agreements at issue;

• whether the collective agreements at issue did or did not cover the relationship between the plaintiffs and their bricklayers; and

• the validity of the independent operator payment agreements.

[19] The LRA clearly gives the OLRB exclusive jurisdiction over these matters and the ability to decide the questions of fact and law that they present.

[20] The plaintiffs argue that the Brick provincial collective bargaining agreements are merely background to the core dispute, which is whether the defendants’ conduct amounts to anti-competitive behaviour. As such, the plaintiffs submit, the essential character of the dispute does not fall within the OLRB’s exclusive jurisdiction.

[21] With respect, I must disagree. “[T]he policy of the legislation is against concurrency and … what matters is not the legal characterization of the claim, but whether the facts of the dispute fall within the ambit of the collective agreement” or otherwise within the OLRB’s jurisdiction: Weber, at para. 44. See also A.C. Concrete, at para. 16. Though the plaintiffs are pursuing recovery for various economic torts, the essential character of the dispute is one of labour relations.

[22] As a result, it is, in my view, “plain and obvious” that the OLRB and not this court has jurisdiction over the subject matter of this action. To allow concurrent or overlapping jurisdiction would undermine the purpose of the labour relations legislation: see Weber, at para. 46; and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, at para. 34.

[23] Although the plaintiffs contest the validity of the Brick provincial collective agreements, and the OLRB’s jurisdiction as a result, the doctrine of exclusivity is not dependent on the presence or absence of a collective agreement. As stated in Vernon v. General Motors of Canada Ltd., [1999] O.J. 5966 (S.C.), aff’d (2005), 2005 3323 (ON CA), at para. 22, “there is a very wide range of subject matter that falls within [the OLRB’s] legitimate exclusive jurisdiction as provided for by the Legislature, some of which is not dependent upon a collective agreement.”

[24] As in Coelho, this action should be stayed pending determination by the OLRB of the issues in this action.

(b) Does the court have jurisdiction to grant the injunctive and other interlocutory relief, and if so, should it exercise this authority?

[25] Section 98 of the LRA gives the OLRB the power to make substantive and procedural interim orders in a pending proceeding. In addition, s. 96(4) provides the OLRB with powers to remedy violations by providing a complaint and enforcement mechanism.

[26] Given the exclusive jurisdiction of the OLRB as outlined above, the interim relief available to the plaintiffs from the OLRB must be exhausted. Notwithstanding that this court retains its inherent jurisdiction to grant injunctive and interim relief, its discretion to consider granting such relief should not be exercised given the exclusive jurisdiction of the OLRB over the matters in this action and given the stay that has been imposed.

[27] As Sharpe J. (as he then was) stated, at para. 18 of Coelho: “[t]he fundamental problem, as I see it, is that if I were to grant the interim orders sought by the plaintiffs, my interim order would determine an important, indeed, central issue of the dispute between these parties that is before the OLRB. In my view, that result should be avoided.”

[28] The same reasoning applies in this case. Here, the plaintiffs have not brought any proceedings to the OLRB regarding the issues for determination in this action. It is not in the interests of justice to invoke this court’s inherent jurisdiction to consider granting interim or interlocutory relief given that the very issues for determination are within the exclusive jurisdiction of the OLRB, which is a specialized tribunal with special expertise in labour relations. Such decision is in keeping with the principles and method of procedure set forth in Weber.

Disposition

[29] For the reasons set forth above, I order that this action be stayed. As a result, I decline to consider whether an injunction or other interlocutory relief should be issued at this time.

[30] I wish to thank counsel for their written and oral submissions, which were exceptional.

[31] If the parties are unable to agree on costs, I may be contacted in order to set a timetable for the delivery of cost submissions.

Firestone J.

Released: July 7, 2014