



COURT OF APPEAL FOR ONTARIO

CITATION: FCI Concrete Forming Inc. v. Buttcon Limited, 2018
    ONCA 268

DATE: 20180319

DOCKET: C63978

Feldman, Watt and Paciocco JJ.A.

BETWEEN

FCI
    Concrete Forming Inc. and

FCI
    Concrete Holdings Inc.

Plaintiffs

(Appellants)

and

Buttcon
    Limited, Carpenters District Council of Ontario,

United
    Brotherhood of Carpenters & joiners of America, Local 494,

Tomi
    Hulkkonen and Tony Ianuzzi

Defendants

(Respondents)

Tony Van Klink, for the appellants

Daniel Shields and Hendrick Nieuwland, for the
    respondents

Heard and released orally: March 14, 2018

On appeal from the order of Justice Russell Raikes of the
    Superior Court of Justice, dated May 29, 2017.

REASONS FOR DECISION

[1]

The appellants submit that the motion judge erred by staying this action
    and finding that the essence of the dispute is an unfair labour practice
    contrary to s. 76 of the
Labour Relations Act
, 1995, S.O. 1995, c. 1,
    Sched. A, and that the Labour Relations Board therefore has the exclusive
    jurisdiction over the dispute.

[2]

The appellants argue that the essence of their claim is damages for
    conspiracy to injure, and, while the nature of the steps taken to carry out
    that conspiracy arose from actions by the respondents in a labour relations
    context, that is incidental to the issue that is to be determined in the
    action, which is whether what they did amounted to a conspiracy to injure.

[3]

We agree with the motion judge that an examination of the statement of
    claim does not support that the appellants characterization of the claim or of
    the dispute.

[4]

For example, at para. 41 of the claim, the plaintiff pleads in relation
    to an impugned grievance filed by the union, that the filing of the grievance
    was an abuse of process. Therefore, the tribunal hearing the claim will have
    to decide the propriety of the grievance, a matter clearly of a labour
    relations nature within the purview of the Board.

[5]

The appellant also disputes whether s. 76 of the
Act
, which
    gives the Board its jurisdiction over unfair labour practices, covers the
    allegations as pleaded. We agree with the respondents that that issue will be
    for the Board to determine.

[6]

As we therefore see no error in the conclusion reached by the motion
    judge, the appeal is dismissed with costs fixed at $15,000 inclusive of disbursements
    and HST.

K. Feldman J.A.

David Watt J.A.

David M. Paciocco J.A.


