Court File and Parties

COURT FILE NO.: CV-22-675010

DATE: 20220120

ONTARIO SUPERIOR COURT OF JUSTICE

RE: ELLISDON RESIDENTIAL INC., Plaintiff

- and –

LIMEN GROUP CONST. (2019) LTD., BRICKLAYERS, MASONS INDEPENDENT UNION OF CANADA, LOCAL 1, LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183, MASONRY COUNCIL OF UNIONS TORONTO AND VICINITY, JACK OLIVEIRA, JOHN MEIORIN, LUIS CAMARA, CESAR RODRIGUES, and FRANCESCA MERCURI, Defendants

BEFORE: FL Myers J

COUNSEL: Ian St. John, for EllisDon Residential Inc. Patrick Groom and Victor Kim, for Westbank Corp. Louis Century, Lorne Richmond and Geetha Philipupillai, for the defendants Bricklayers, Masons Independent Union of Canada, Local 1, Labourers’ International Union of North America, Local 183, Masonry Council of Unions Toronto And Vicinity, Jack Oliveira, John Meiorin, Luis Camara, Cesar Rodrigues, And Francesca Mercuri Hendrik Nieuwland, for the defendant Limen Group Const. (2019) Ltd.,

HEARD: January 19, 2022

CIVIL PRACTICE COURT SCHEDULING ENDORSEMENT

[1] EllisDon is the construction manager on a major construction project for the developer Westbank. It also has another relevant condominium construction project under way in Toronto. The sites are unionized.

[2] EllisDon says that the employees of the masonry contractor Limen Group have been intimidated with threats by their union to remain off the job in order to pressure EllisDon to grant the union exclusive bargaining rights in other projects that may arise in future outside Toronto.

[3] The union has apparently threatened to impose fines under a collective agreement on Limen Group and its union-member employees (of up to $500 per day) if they do not refuse to work on the EllisDon and Westbank projects. Whether the union has the right to impose fines when Limen Group and its employees are doing work under ordinary course contracts at properly unionized sites is a question.

[4] Westbank has a contract with Limen Group. If it fails to perform, Limen Group may be in breach of contract. Hence the plaintiff alleges that the union is inducing breach of contract and committing other economic torts.

[5] Limen Group takes no position. It is caught between its vulnerability to the union and its potential contractual liabilities to Westbank and/or EllisDon.

[6] Westbank says that if the masonry work is not done on its building by February 1, 2022, it will suffer very significant losses as the staged timing of its construction project will be thrown off.

[7] EllisDon asks for an urgent hearing of a motion for an injunction to prevent the union’s unlawful tortious conduct and to order Limen Group to send its employees back to finish the jobs.

[8] Westbank asks to intervene. Mr. Century for the union has no answer to the intervention request. He says it is premature in face the union’s objection to the jurisdiction of the court in this matter. But if Limen has an interest in that question, there is no reason for its intervention request to be deferred. As the counterparty to at least one of the masonry contracts with Limen Group, of course it has a legal interest at stake. Westbank is therefore added as a party intervenor to this action and the title of proceeding is amended to show it as an intervenor.

[9] Mr. Century asks the court to schedule a preliminary hearing just on the issue of whether the court or the Ontario Labour Relations Board has jurisdiction over the issues in this action. He says jurisdiction should be decided first, before significant costs are incurred.

[10] Counsel referred me to Baycliffe Homes v Labourers’ International Union of North America, 2021 CanLII 2843 (ON LRB) and Ras-Con Group Inc. v Labourer's International Union of North America, 2021 CanLII 18122 (ON LRB). Both cases are factually similar to this one and show that the OLRB recently asserted jurisdiction in those disputes. Mr. St. John referred me to paras. 92 and 93 of Ras-Con to show why this case was different (ostensibly because EllisDon is not a party to Limen Group’s collective agreement with its union). I see the tribunal’s parenthetical comment in para. 93. While it adumbrates the issue, I do not find anything written in those paragraphs that helps elucidate the nuances for me.

[11] I do not dismiss the seriousness of the jurisdiction issue. It is a very real issue in this action. The OLRB heard many days of testimony in the Ras-Con case. I do not think that distinctions can be made between that case and this case without the full evidentiary record required for the merits. I understand there is an important factual difference. But the import of the factual distinction on the issues relevant to an assessment of jurisdiction is not at all clear to me. Separating the jurisdiction question from a full understanding of the merits seems unhelpful in this case and could provide an opportunity to rag the puck while the plaintiff and intervenor allegedly suffer.

[12] Mr. St. John proposes a schedule with the last factum to be delivered on February 1, 2022. Mr. Nieuwland say that his client Westbank cannot wait that long and needs a decision before February 1, 2022. That means the hearing must be held before the end of the month. Plus, a judge will need a day or two to write a decision.

[13] This is a complicated matter. Moreover, it did not arise on the sudden. The employees walked off the job November 29, 2021. Westbank then apparently terminated Limen Group’s masonry contract on December 13, 2021. I am confused at how Westbank purports to seek a mandatory injunction requiring Limen Group to report for work under a contract when it terminated the contract.

[14] That is too simplistic a question as there could be other relief available and other masonry contractors available if the union is restrained from interfering. But, what I draw from the December 13, 2021 termination of Limen Group’s contract is this: These parties are deeply immersed in an economic power struggle. All are represented by highly experienced labour relations firms. This is the latest step in a process of expansion and muscle-flexing by the union that has been ongoing for some time already. The plaintiff and Westbank are taking legal steps decidedly as and when they see fit. Now, they want to try for a court remedy. The facts may be ripe for a court case. But it is also noteworthy that the developer side has been largely unsuccessful at the Ontario Labour Relations Board to date.

[15] Like many things labour, this is a chess match. The court proceeding is a move being played. That is perfectly fine. If the law is being broken in a manner amenable to legal relief, coming to court is perfectly appropriate.

[16] But the chess players have to understand that there are hundreds of thousands of others all engaged in their own matches. We are also in the midst of a pandemic that makes everything about coming to court more difficult administratively and harder for the people involved. The Civil Team triages every request for a hearing because it cannot keep up with the volume at present.

[17] Truly urgent matters will be prioritized of course. But, if the matter was so urgent, why was this action not brought in December? Had the plaintiff gone to the OLRB in December, it might have had a result by now. The court had lots of availability around Christmas and shortly into the new year. But there is no availability now without cancelling another matter.

[18] The court cannot recognize claims for urgency brought on by parties who wait to the last second for their own good strategic reasons.

[19] I am also very dubious about the fairness of the schedule proposed by the plaintiff. The plaintiff strategically took six weeks to start the action and another week to finalize and serve its motion record. But it proposes that the union side respond within two days. Westbank, the person who asserts it will be massively harmed in just a few days time, did not even sue or move on its own.

[20] I know nothing of the real stakes at issue. Might the harm to be suffered by the projects being stalled pale in comparison to the economic effects of what is being sought by the union? Nor do I know what the relationship is between EllisDon and Limen Group to understand who really bears which costs.

[21] In all, I am not satisfied that the court’s calendar at the current time ought to recognize the urgency alleged. The court’s calendar is known to counsel and , no doubt, factored into the clients’ strategic and economic decisions. There are already trials being cancelled that have been waiting for their fixed dates for more than a year. In my view, no judge should be made available on an urgent, prioritized basis, when the urgency is largely strategic, economic, and self-induced.

[22] As seen in CPC yesterday, there are a few long motion dates that have come available in March. Counsel are to communicate and cooperate to agree on a schedule under which the full matter can be heard in one day in March. The date can be obtained from the Motions Coordinator. I will endorse a consent schedule. Otherwise, I will fix one at CPC next week.

FL Myers J

Date: January 20, 2022