2010 NLCA 74, 2010 NLCA 74

Date: 20101221 Docket: 10/93 Citation: United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union USW et al. v.

Vale Inco Newfoundland and Labrador Limited , 2010 NLCA 74 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION USW INTENDED FIRST APPELLANT AND : UNITED STEEL, PAPER AND FORESTRY, RUBBER MANUFACTURING, ENERGY, ALLIED INDUSTRIAL AND SERVICE WORKERS INTERNATIONAL UNION USW, LOCAL 9508 INTENDED SECOND APPELLANT AND : DARREN COVE INTENDED THIRD APPELLANT AND : BOYD BUSSEY INTENDED FOURTH APPELLANT AND : VALE INCO NEWFOUNDLAND AND LABRADOR LIMITED INTENDED RESPONDENT

Coram: Rowe, J.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division, 200901T4113 Application Heard: December 14, 2010 Decision Rendered: December 21, 2010 Reasons for Decision by Rowe, J.A. Counsel for the Appellants: Bettina Quistgaard Counsel for the Respondent: James Thistle, Q.C.

Rowe, J.A.: FACTS [ 1 ] This is an application for leave to appeal a decision of a judge of the Trial Division dismissing an application by the Defendants to set aside Vale Inco’s Statement of Claim on the basis that the Labour Relations Board, and not the Trial Division, has jurisdiction over the matter. [ 2 ] Vale Inco operates a mine at Voisey’s Bay.

This is facilitated by third parties under contract to Vale Inco, among them Iskueteu ABB Limited Partnership (“IABB”) and Torngait Services Inc. (“TSI”). [ 3 ] The United Steel, Paper and Foresty, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union USW, Local 9508 (“USW Local”) is the certified bargaining agent for certain employees at Voisey’s Bay. Boyd Bussey is a representative of the USW International. Darren Cove is President of the USW Local. [ 4 ] Employees of TSI and IABB are members of the USW Local. They are not on strike.

However, other members of the USW Local, employees of Vale Inco, are on strike. [ 5 ] Vale Inco alleges that on August 27, 2009, USW Local members employed by TSI and IABB were directed by officials of the USW (Messrs. Cove and Bussey) to refuse to work and to claim that such refusals were based on unsafe working conditions. These employees refused to work the next day.

The work stoppage lasted one day. [ 6 ] Vale Inco brought an action against the USW (International and Local), Darren Cove and Boyd Bussey for damages arising from this, based on the tort of intentional interference with economic relations. [ 7 ] The Defendants applied to a judge of the Trial Division to set aside the Statement of Claim on the basis that the Labour Relations Board has exclusive jurisdiction over the matter. The applications judge dismissed the application, holding that the Trial Division’s jurisdiction had not been ousted by the Labour Relations Act , RSNL 1990, c. L-1.

The Defendants seek leave to appeal that decision. RULE 57.02(4) [ 8 ] Rule 57.02(4) of the Rules of the Supreme Court, 1986 governs whether an appeal from an interlocutory order may be taken. Leave to appeal an interlocutory order may be granted where: (

a) there is a conflicting decision by another judge or court upon a question involved in the proposed appeal and, in the opinion of the Court, it is desirable that leave to appeal be granted, (

b) the Court doubts the correctness of the order in question, (

c) the Court considers that the appeal involves matters of such importance that leave to appeal should be granted,

(

d) the Court considers that the nature of the issue is such that any appeal on that issue following final judgment would be of no practical effect, or (

e) the Court is of the view that the interests of justice require that leave be granted. The granting of leave is discretionary. ANALYSIS [ 9 ] It is agreed that Rule 57.02(4)(a) (“conflicting decisions”) is not relevant. Much emphasis was placed by counsel on Rule 57.02(4)(b) (“doubts the correctness”). I say nothing about this ground.

Rule 57.02(4)(d) (“no practical effect”) is not relevant, as the jurisdictional question could be raised in an appeal following a trial. [ 10 ] I base my decision on Rule 57.02(4)(c) (“matters of such importance”) and 57.02(4)(e) (“the interests of justice require”). [ 11 ] Regarding Rule 57.02(4)(c), in Kavanagh v.

Newfoundland (Minister of Education) , 2000 NFCA 2 , Green J.A. (as he then was) wrote at para. 17: [W]henever the jurisdiction of the court is challenged, it is important to ensure a proper ruling on that issue be obtained since the consequence of a wrong decision on that point could be that a potential litigant would be improperly denied access to the court. The other possibility is that the parties would have a trial that on appeal could be held to have been a nullity, for want of jurisdiction. [ 12 ] In Rolls-Royce Corporation v.

Universal Helicopters Newfoundland Limited (2009), 2009 NLCA 58 (CanLII) , 290 Nfld. & P.E.I.R. 204 (NLCA), Cameron J.A. wrote at para. 25: Determination of jurisdiction … is of sufficient importance to warrant the granting of leave to appeal prior to trial. [ 13 ] It is of considerable importance for those engaged in collective bargaining in this province to know whether claims arising from actions of the type allegedly undertaken by the Defendants come within the jurisdiction of the courts or the Labour Relations Board.

The critical difference is damages , which is a remedy before the courts, but not before the Labour Relations Board. Damages arising from a work stoppage at a major industrial site, like the Voisey’s Bay mine, could be immense.

Whether such damages could be awarded in circumstances such as those alleged here is an important question that warrants a definitive answer. [ 14 ] Regarding Rule 57.02(4)(e), it is in the interests of justice, having regard to the parties in this case, to settle now the forum that has jurisdiction, rather than having that settled on appeal following a trial, with the possibility that the trial would be a nullity, for want of jurisdiction. CONCLUSION [ 15 ] Having regard to Rule 57.02(4)(

c) and (e), as outlined above, I grant leave for the Defendants to appeal the decision of the applications judge. [ 16 ] Costs will be in the cause. _____________________________ M. Rowe, J.A.