United Brotherhood of Carpenters and Joiners of America, Local 83 v. Armour Group Ltd.

United Brotherhood of Carpenters and Joiners of America, Local 83 v. Armour Group Ltd. Court Court of Appeal Date 2008-04-22 Citation 2008 NSCA 35 Docket CA 280385 Judge/Registrar/Adjudicator Hamilton, M. Jill (Honourable Justice); MacDonald, J. Michael (Honourable Chief Justice) (CA); Cromwell, Thomas A. (Honourable Justice) Document Type Decision Relations Library Sheet - United Brotherhood of Carpenters and Joiners of America, Local 83 v. Armour Group Ltd. - 2008 NSCA 35 - 2008-04-22 - Library Sheet Decision Content NOVA SCOTIA COURT OF APPEAL Citation: United Brotherhood of Carpenters and Joiners of America, Local 83 v. Armour Group Ltd., 2008 NSCA 35 Date: 20080422 Docket: CA 280385 Registry: Halifax Between: United Brotherhood of Carpenters and Joiners of America, Local 83 Appellant v. The Armour Group Limited Respondent Judge(s): MacDonald, C.J.N.S.; Cromwell & Hamilton, JJ.A. Appeal Heard: March 26, 2008, in Halifax, Nova Scotia Held: Appeal dismissed with costs, per reasons for judgment of Hamilton, J.A.; MacDonald, C.J.N.S. & Cromwell, J.A. concurring Counsel: Raymond A. Mitchell, for the appellant George W. MacDonald & Jane O’Neill, for the respondent Reasons for judgment: [1] The appellant, United Brotherhood of Carpenters & Joiners of America, Local 83 (“Union”), appealed two aspects of the March 29, 2007 decision of Justice Douglas L. MacLellan. His reasons for judgment are reported at 2007 NSSC 98, [2007] N.S.J. No. 126. The Union appealed: (1) the judge’s decision that he had jurisdiction to decide what the respondent, The Armour Group Limited (“Group”), categorized as a breach of contract claim against the Union and, if that ground of appeal was not successful; (2) it appealed the amount of the damages he ordered the Union to pay Group, $33,852.72, including pre judgment interest. For the following reasons I would dismiss the appeal. Facts [2] In 1984 Group was a unionized employer in the construction industry and a member of the Construction Management Labour Bureau Limited (“Bureau”), the employers’ organization that was the sole collective bargaining agent for all unionized employers in the construction industry on mainland Nova Scotia. It was bound by the then outstanding collective agreement between the Bureau and the Union. It was also bound by the collective agreement between the Bureau and The Labourers International Union of North America, Local 615 (“Labourers Union”). [3] Group resigned from the Bureau in October, 1984. [4] On November 2, 1984, in connection with the corporate reorganization of Group in which Armour Construction Limited (“Construction”), a subsidiary of Group, replaced Group as a unionized employer in the construction industry and Group was decertified, the Union, Group, and Construction entered into an agreement (“Agreement”): 1) The Carpenter’s Union agrees and acknowledges that Armour Group and Armour Construction shall apply to the Nova Scotia Labour Relations Board (Construction) to have Armour Group decertified and to have Armour Construction replace Armour Group as the party for whom certification applies and further that Armour Group shall be resigning from the Construction Labour Management Bureau and that Armour Construction will be applying to become a member of the Construction Labour Management Bureau and the Carpenter’s Union agrees not to oppose or in any way object to the foregoing applications by Armour Group and/or Armour Construction. 2) The Carpenters Union further agrees that it hereby releases and forever discharges Armour Group from any and all obligations which Armour Group might have due or accruing due to the Carpenter’s Union and its’ members and the Carpenters Union further agrees that it shall not take any action by way of Successor’s Rights application under the Nova Scotia Trade Union Act against Armour Group or any of its’ subsidiary companies (except Armour Construction) including without limitation any action claiming that Armour Group should be declared responsible for obligations pursuant to its’ membership in the Construction Labour Management Bureau and/or the Collective Agreement between the Construction Labour Management Bureau and the Carpenters Union; 3) The contents of this Agreement shall not be construed to indicate that there is a bar against the Carpenters Union, Local 83 from applying for certification against THE ARMOUR GROUP LIMITED. (Emphasis mine) [5] Group entered into a similar agreement with the Labourers Union except that agreement did not contain a clause similar to clause 3 of the Agreement. [6] With these two agreements attached, Group applied to the Labour Relations Board (Nova Scotia), Construction Industry Panel (“Panel”) under what is now s.19(1) of the Trade Union Act, R.S.N.S., 1989, c. 475, to vary Accreditation Order L.R.B. No. 392C (“Accreditation Order”) to delete Group and add Construction as a unionized employer. [7] The Panel is a division of the Board. Its jurisdiction and powers are provided for in s. 94 of the Act: 94(4) The jurisdiction, power and authority of the Board shall be vested in and be exercised by the Panel and the duties and functions of the Board shall be performed by the Panel with respect to any proceeding or matter relating to the construction industry. (5) When a question arises whether a matter is a matter relating to the construction industry the question shall be finally determined by the Panel. (6) Any act of the Panel shall be conclusively deemed to be the act of the Board in relation to the jurisdiction, power and authority vested in and exercisable by the Panel or in relation to duties or functions performed by the Panel by virtue of subsection (4). [8] Group’s application to the Panel indicated that its business had changed from construction management and contracting to the development, management and ownership of real estate. It indicated construction management and contracting was now carried on by Construction. [9] By letter dated January 7, 1985 the Panel notified Group, Construction, the Union, the Labourers Union and “Other parties to Accreditation Order L.R.B. No. 392C dated January 29, 1976” that, in light of the restructure of Group and the consenting agreements of the two affected unions, it intended to replace Group with Construction as a unionized employer: . . . Subject to your right to challenge and to request a hearing on this application, the Panel proposes to grant the application but only on condition that such order shall be treated as not applicable if in the opinion of the Panel Armour Group Limited, at any time in the future, engages in work in the construction industry. . . . Therefore, unless the Panel receives a Reply from you within the ten day time limit provided by Section 18 of the Regulations to the Act challenging our tentative disposition and requesting a hearing, we propose to issue an order reconsidering our decision to include Armour Group Limited as a “unionized employer” in Schedule “A” to Accreditation Order L.R.B. No. 392C and substituting as the unionized employer Armour Construction Limited. [10] No one challenged Group’s application and on February 6, 1985 the Panel referred in recitals to the background of Group’s application, including the January 7, 1985 notification letter, and ordered: THEREFORE, the Construction Industry Panel of the Labour Relations Board (Nova Scotia) grants the Application for Reconsideration and orders that from hence-forth Schedule “A” to the Accreditation Order be amended such that Armour Group Limited be deleted and Armour Construction Limited be substituted in its place and stead with the intent that the Accreditation Order enure to the benefit of and be binding upon Armour Construction Limited. [11] On or about March 29, 1985 Construction applied for membership in the Bureau in place of Group. The application was granted making Construction a unionized employer in the construction industry. [12] On November 25, 1997 the Union applied to the Panel for reconsideration of the Accreditation Order pursuant to s.19 of the Act alleging that Group had reentered the construction industry and breached the Agreement and seeking to have Group declared to be a unionized employer: 2. The facts upon which the Applicant intends to rely in support of its application are: By Application dated December 5, 1984, for reconsideration of L.R.B. No. 392C, the Respondents requested that the Accreditation Order L.R.B. No. 392C be varied so as to substitute Armour Construction Limited as the name of the Employer identified in Schedule "A" to the Accreditation Order as bound by the accreditation provisions of Part II of the Trade Union Act, in place of The Armour Group Limited. Because The Armour Group Limited had then become a holding company only and its construction work was exclusively performed by Armour Construction Limited, the Panel and the Applicant were satisfied with the substitution of The Armour Group Limited with Armour Construction Limited. Recently, however, The Armour Group Limited and its subsidiaries have contracted out construction work to non‑union construction companies in addition to Armour Construction Limited. The Armour Group Limited and its subsidiaries are no longer simply a holding company which employs employees in the ordinary maintenance of its properties; The Armour Group Limited has re‑entered the construction industry. The Armour Group Limited and its subsidiaries are acting contrary to the spirit and letter of the agreement between the parties and L.R.B. Order No. 837C. 3. Remedy requested: - (1) The Union requests that the Panel order and reconsider L.R.B. No. 837C to include both [Construction] and [Group] and its subsidiaries; (2) Pursuant to Section 21 of the Trade Union Act, treat [Construction] and [Group] and its subsidiaries as one employer for the purposes of the Trade Union Act; (3) Pursuant to Section 31(5) of the Trade Union Act, declare that there has been a sale, lease or transfer of the business of [Construction] to [Group] and its subsidiaries; (4) Declare and Order that the Collective Agreement between the Construction Management Labour Bureau and the [Union] is and has been binding upon [Group] and its subsidiaries since January 1, 1997; . . . (Emphasis mine) [13] During cross-examination relating to the Union’s application, one of its representatives, Peter Greer, testified: Q. Okay, now number 2 - isn’t that a common employer . . . application? That’s what you’re seeking. A. Yes, it would be and again I guess through this application I was attempting to recover what I consider we had lost by the order that we’re seeking reconsideration for. Q. But the answer to my question is yes, . . . You’re seeking the declaration of its common employer? A. Yes. Q. Okay and . . . A. Well - I don’t know if it’s really fair to say that. What I was saying was that - I was asking the panel to consider these questions. Q. Isn’t section 21 dealing with a common employer pursuant to section 21 of the Trade Union Act? A. Yeah. Q. Armour Construction and the Armour Group and its subsidiaries, one employer. So you’re seeking a common employer determination. A. Yes. Q. And number 3, isn’t that a successor application? A. Yes. [14] The judge noted this admission in his decision: [72] On cross‑examination Mr. Greer agreed with [Group’s] counsel that the remedies the Union requested in the re‑consideration application were in effect a ruling based on a common employer application and successor rights application. He also acknowledged that he understood Mr. McCrea's position to be as set out in [Group’s] reply to the application [Exhibit 1 ‑ Tab 44] namely that the 1984 agreement signed by the Union prohibited a successor rights application to the Labour Relations Board. [15] On December 11, 1998 Group sued the Union for breach of the Agreement. It claimed that the Union breached the Agreement by making its 1997 application to have Group certified on the basis of the successor rights provisions in s.31 and 32 of the Act. [16] Group claimed damages against the Union along with: (e) An Order enjoining the Defendants from seeking to have the Nova Scotia Labour Relations Board find that [Group] and [Construction] are a Common Employer or that the [Union] can claim “Successor Rights” against [Group]; (f) A declaration that [Group] is not required to employ [Construction] or any other unionized contractor to perform construction, including tenant improvements on properties and lands owned by [Group]; . . . [17] By letter dated October 26, 2000 the Union sought to withdraw its 1997 application for reconsideration. [18] In decision 2099C dated October 26, 2000 the Panel dismissed the Union’s 1997 application pursuant to s.19 of the Act. Decision [19] The judge found that he had jurisdiction: [93] I accept the argument of the [Union] that where there is a collective agreement many times the Court determines that the parties are restricted in their right to pursue action in the Courts instead of before the provincial Labour Relations Board. In this case, however, there is no collective agreement between the parties and I conclude that there is therefore jurisdiction in the Court to deal with the matter. The [Union] has offered no case law to support the position that somehow [Group], which is not bound by a collective agreement, is forced to resort to the Labour Relations Board instead of the Courts to seek a remedy against the [Union]. [20] He found that the Agreement was lawful in response to the Union’s argument that the Union did not have the right to contract out of its rights under the Act: [98] I also reject the suggestion that [Group] could not contract with the defendant because that right was given to the Bureau. . . . [21] Responding to the Union’s argument that the Agreement was not enforceable because there was no consideration, the judge found that there was consideration so that it was binding on both parties: [99] I conclude that there was proper consideration for the contract entered into between the parties and therefore the contract is binding on both parties. [22] He found that the Union breached the Agreement when it made its 1997 application: [94] I conclude here that clearly the [Union] was in breach of the contract entered into in 1984. That contract prohibited an application to determine successor rights. Mr. Greer, on behalf of the [Union], agreed that the application for reconsideration filed by the Union in November 1996 requested that the Board certify the Union as bargaining agent for The Armour Group Limited based on successor rights. . . . [100] I conclude that based on the evidence that I have heard that the [Union] was in breach of the contract entered into with [Group] when it made the application in November 1997 asking the Labour Relations Panel to re‑consider its earlier order of February 6th 1985 (LAB No. 837C). [101] I reject the argument of the [Union] that by not proceeding to a hearing on that application there was no breach of the contract. Clearly, the breach was making the application and the fact that it did not proceed to a formal hearing is only relevant on the issue of damages. [23] He awarded Group $33,852.72 special damages for breach of contract, calculated on the legal costs Group incurred to defend the Union’s 1997 application, together with pre-judgment interest. [24] He also granted Group an injunction and a declaration. [25] At this point it is important to state what is and is not before us on this appeal. As stated previously the Union appealed to this Court only two aspects of the judge’s decision: his decision that he had jurisdiction and his order for damages. It did not appeal his decision that the Agreement was lawful, that there was consideration for the Agreement, that it was binding on both parties, that the Union breached the Agreement when it made its 1997 application, the terms of the judge’s declaratory order or the injunctive relief he granted. Accordingly, as counsel for the Union agreed, for the purpose of this appeal we must assume the Agreement was enforceable and was breached by the Union when it applied to the Panel in 1997 to have Group certified on the basis of successor rights and that the issue of whether Group is presently in the construction industry is not before us. Therefore nothing in this decision should be interpreted as approving or disapproving of any aspect of the judge’s decision except his decision on jurisdiction and damages. Standard of Review [26] There is no dispute the standard of review is correctness. Jurisdiction [27] I will first deal with the issue of jurisdiction. There is no presumption of exclusivity of jurisdiction for labour relations boards such as the Panel for all disputes involving unions and employers; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) (the “Morin” case), [2004] 2 S.C.R. 185, ¶11 and 14. [28] In Adams v. Cusack (2006), 242 N.S.R. (2d) 66 this Court stated: [13] Since at least the mid 1980's, the Supreme Court of Canada has recognized that the courts should be cautious not to undermine " ... a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting.": St. Anne Nackawic Pulp & Paper v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R. (2d) 236; 184 A.P.R. 236, at 721. To avoid doing "violence" to such a scheme, the courts ought to show "judicial deference" by not routinely hearing cases that fall within it: St. Anne at 721 [S.C.R.]. This hands‑off policy applies not only where there are clear legislative provisions which expressly oust court jurisdiction. It also applies where the scheme as a whole makes it clear that the courts were intended to have "... but a small role if any to play in the determination of disputes covered by the statute.": Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al, [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man. R. (2d) 81, at 1321 [S.C.R.]. [14] Weber v. Ontario Hydro, supra, is still the leading case in this area. Its holding was recently summarized in Commission des droits de la personne et des droits de la jeunesse (Qué.) v. Maksteel Québec Inc. (the "Morin" case), [2004] 2 S.C.R. 185; 311 N.R. 313, at para. 11: (i) Weber holds that the model that applies in a given situation depends on the governing legislation, as applied to the dispute viewed in its factual matrix. In Weber, the concurrent and overlapping jurisdiction approaches were ruled out because the provisions of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, when applied to the facts of the dispute, dictated that the labour arbitrator had exclusive jurisdiction over the dispute. (ii) Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer‑union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction; see, for example, Goudie v. Ottawa (City), [2003] 1 S.C.R. 141, 2003 SCC 14; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495. (iii) Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. [15] To carry out the required analysis, the court must follow two main steps. The first is to examine the dispute resolution scheme in order to determine its intended ambit and the second is to examine the dispute to determine whether it falls within that intended ambit. At this second step, the court must look at the essential character of the dispute, determined according to its full factual context, not the legal characterization which the parties have chosen to place on it: see e.g. Morin at paras. 15‑20; Vaughan at para. 11; Weber at para. 49. [16] Many of the cases have dealt with whether disputes should go to court or to a labour arbitrator acting under a collective agreement. However, the Supreme Court has made it clear that the analysis from Weber applies much more generally. The Weber analysis should be used "... whether the choice of forums is between courts and a statutorily created adjudicative body or between two statutorily created bodies.": Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask. R. 23; 216 W.A.C. 23, at para 39; Vaughan v. Canada, supra, at para. 14. (Emphasis mine) [29] As referred to in ¶ 16 of Adams, supra, the three main considerations to be followed when a court is faced with a challenge to its jurisdiction in a case such as this are the same as those set out by this Court in Pleau v. Canada, [1999] N.S.J. No. 448: [49] Taking these underpinnings of Weber into account, the relevant considerations may be addressed under three headings. [50] First, consideration must be given to the process for dispute resolution established by the legislation and collective agreement. Relevant to this consideration are, of course, the provisions of the legislation and the collective agreement, particularly as regards the question of whether the process is expressly or implicitly regarded as an exclusive one. Language consistent with exclusive jurisdiction, the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme should be considered. [51] Second, the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation and the collective agreement should be considered. In essence, this involves a determination of how closely the dispute in question resembles the sorts of matters which are, in substance, addressed by the legislation and collective agreement. What is required is an assessment of the "essential character" of the dispute, the extent to which it is, in substance, regulated by the legislative and contractual scheme and the extent to which the court's assumption of jurisdiction would be consistent or inconsistent with that scheme. [52] Third, the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is a right, there ought to be a remedy. [30] In analysing the first consideration referred to in Pleau, supra, the process of dispute resolution provided, we need only consider the Act as there is no collective agreement between the parties. [31] The Union argued that s.19 gave the Board, and hence the Panel by virtue of s.94(4),(5), and (6) set out in ¶ 8 above, exclusive jurisdiction to adjudicate the dispute between the parties: 19 (1) If in any proceeding before the Board a question arises under this Act as to whether (a) a person is an employer or employee; (b) an organization or association is an employers' organization or a trade union, or a council of trade unions; (c) in any case a collective agreement has been entered into and the terms thereof; (d) a collective agreement is by its terms in full force and effect and upon whom it is binding; (e) any person has ceased to work for his employer as the result of a lockout or strike or has been dismissed by his employer contrary to this Act or to a collective agreement; (f) any party to collective bargaining has failed to comply with Section 35; (g) a group of employees is a unit appropriate for collective bargaining; (h) an employee belongs to a craft or group exercising technical skills; (i) a person is a member in good standing of a trade union; (j) an employer has sold, leased, transferred or agreed to sell, lease or transfer his business or the operations thereof or any part of either of them or has contracted out or agreed to contract out any part of the work done by his employees; (k) an employer, employer' organization, trade union or other person is doing or has done any act prohibited by Sections 47, 48, 49, 50 or 56A, the Board shall decide the question and the decision or order of the Board is final and conclusive and not open to question, or review, but the Board may, if it considers it advisable so to do, reconsider any decision or order made by it under this Act, and may vary or revoke any decision or order made by it under this Act. (Emphasis mine) [32] While the Panel’s jurisdiction over the matters set out in s.19 involving the construction industry is exclusive and its decisions are final subject to reconsideration by the Panel, there is nothing in the Act indicating expressly or implicitly that the Panel has exclusive jurisdiction to adjudicate all contractual disputes between unions and employers. Nor is there anything in the Act suggesting that a contract like the Agreement, under which the Union specifically gave up its right to seek to have Group certified under the successor rights provisions of the Act, a right it may otherwise have had should be adjudicated by the panel. [33] The second consideration is what is the “essential character” of the dispute between the parties. Does the dispute seek to resolve rights and obligations of the parties under the Act which would suggest it is to be resolved by the Panel or is it more properly characterized as a contractual dispute governed by the common law which courts should decide. [34] In the case before him the judge was not asked or required to interpret an order of the Panel. He was not asked or required to determine whether Group was an employer in the construction industry. He was not asked or required to interpret the Act. There was no collective agreement to be interpreted. [35] What the judge was asked to determine was whether the Agreement by which the Union gave up the right it may otherwise have had under the Act to seek certification of Group under the successor rights provisions, was breached by the Union when it made its 1997 application. The Union’s representative, Peter Greer, admitted that it sought certification of Group on the basis of successor rights in its 1997 application. The judge was also asked to grant damages and other remedies requiring the Union to abide by the terms of the Agreement. [36] I am satisfied the “essential character” of the dispute involved a contract that did not engage the provisions of the Act but instead contracted out of them to a limited extent. While the Union agreed not to seek certification of Group on the basis of successor rights, clause 3 of the Agreement ensured the Union had the right to apply to have Group certified on other bases. The determination of whether a contract of this type had been breached and if so what remedies should be awarded engage common law issues of contract rather than the rights and obligations of the parties contemplated and regulated by the Act. For the court to resolve this dispute would not be inconsistent with the dispute resolution process provided for in the Act. [37] The third consideration is the capacity of the Panel and the court to give an effective remedy. One remedy Group sought was damages calculated on the amount of legal fees it had incurred in responding to the 1997 application. Damages is a remedy routinely provided by courts for breach of contract. The Panel is prohibited by s.19(4) from awarding costs to the successful party. Hence Group would not have been able to get the damages remedy it sought from a Panel. [38] As noted by Binnie, J. in Vaughan v. Canada [2005] 1 S.C.R. 146 at ¶ 22, the capacity of the statutory scheme to afford effective redress is a factor that must be considered, but it is not necessarily conclusive. The task of the court is still to determine whether, looking at the legislative scheme as a whole, the Legislature intended the dispute in question to be determined in the courts or through the mechanisms provided for in the statutory scheme. [39] Applying these considerations to the dispute that was before the judge, I am satisfied he did not err in finding he had jurisdiction. The contract in dispute was one in which the Union had contracted, out of a right it may otherwise have had under the Act to seek to have Group certified under the successor rights provisions. The Union continued to have the right under the Agreement to seek to have Group certified on other bases. The dispute did not involve a determination of the rights and obligations of the parties under the Act. The Act does not provide implicitly or explicitly that contractual disputes of this kind are to be exclusively determined by the Panel. The Panel does not have the authority to provide the damages remedy sought by Group. The dispute in this case was a private contractual dispute outside of any collective agreement and outside the Act. It is not the type of dispute the Legislature intended to be within the exclusive jurisdiction of the Panel. It stands on its own outside labour legislation. [40] Decisions of courts in other cases where the dispute tangentially may appear to involve labour legislation support this view. [41] One such case is Goudie v. Ottawa (City), [2003] 1 S.C.R. 141. The dispute in that case involved the existence and interpretation of a pre-employment contract alleged to have been breached by the City. The Supreme Court of Canada found that the “essential character” of the dispute was the alleged breach of the pre-employment contract which was outside of the collective agreement and hence was properly before the court: 24 None of these cases purported to deny access to the courts by plaintiffs who allege a cause of action outside the collective agreement. The appellant complains that the decision in the courts below undermines "the sanctity of agreed arbitration clauses in collective agreements" and permits unionized employees to "get out of collective agreements and litigate labour relations issues, instead of going through regular grievance arbitration process", and says the issue here is "whether the approximately 4 million unionized workers in Canada should each, individually, be given the opportunity to forum shop" (appellant's factum, at para. 1). In my view, with respect, this case raises no such issues. In Wainwright v. Vancouver Shipyards Co. (1987), 38 D.L.R. (4th) 760 (B.C.C.A.), it was held that the courts have jurisdiction over contracts predating the collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), 75 O.R. (2d) 609 (C.A.). Both of these cases were cited with approval by this Court in Weber, supra, at para. 52. Such disputes are foreign to the collective agreement and are not embraced by the legislative intent favouring arbitration. [42] A second case is Imperial Oil Ltd. v. Atlantic Oil Workers Union, Local No. 1, [2004] N.S.J. No. 380 (SC), reversed on other grounds, where the judge determined that Imperial Oil’s claim for breach of a release by both unionized and non-unionized employees was a matter within the court’s jurisdiction: [46] This case is distinguishable from others in which the court's jurisdiction has been rejected. It involves common law issues of contract, not contemplated or intended to be regulated by the Trade Union Act, and the court's jurisdiction should not be ousted. (See Armour Group Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 83 (2000), 186 N.S.R. (2d) 315; 581 A.P.R. 315; 2000 CarswellNS 249 (S.C.)). . . . [43] See also United Food and Commercial Workers, Local 832 v. Faroex Ltd., [2000] M.J. No. 542 (Q.B.) and Sooley’s Plumbing and Heating v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry in the United States and Canada, Local 740, [1989] N.J. No. 347 (S.C.T.D.). Damages [44] The second issue argued by the Union on appeal was that the judge erred in ordering it to pay special damages of $33,852.72 to Group based on the legal fees Group incurred in response to the Union’s 1997 application to the Panel. The Union argued that Group’s claim for damages for breach of contract calculated on the legal fees Group paid in response to the Union’s 1997 application was a “back door” attempt by Group to obtain legal costs relating to an application to the Panel which the Act specifically precludes by s.19(4). In the alternative, it argued that this award of damages was in essence an award of costs, so that the principles of the Costs and Fees Act, R.S.N.S., 1989, c. 475, should apply to reduce the amount of damages awarded. [45] Group’s position is that the judge did not err because he awarded damages for breach of contract not costs of going to the Panel. It argued that if the Union had not breached the Agreement Group would not have incurred these legal fees. [46] I am satisfied the judge did not err in awarding the damages he did. As indicated previously, he correctly characterized the issue before him as a breach of contract dispute governed by the common law rather than a labour relations issue governed by the Act. Once that is accepted, Group is entitled to be compensated for its losses flowing from that breach. On the facts of this appeal, the Union breached the Agreement by making the 1997 application causing Group to incur legal fees it would not otherwise have incurred. There was no suggestion that the legal fees charged were unreasonable. [47] Accordingly, I would dismiss the appeal and order the Union to pay costs to Group in the amount of $10,000, being 40% of the costs awarded at trial as agreed to by the parties, plus disbursements. Hamilton, J.A. Concurred in: MacDonald, C.J.N.S. Cromwell, J.A.