Canadian Association of Labour Lawyers

Court File No. C39988

COURT OF APPEAL FOR ONTARIO

IN THE MATTER OF THE BANKRUPTCY OF TCT LOGISTICS INC. AND
TCT WAREHOUSING LOGISTICS INC.
(AND THE COMPANIES LISTED ON SCHEDULE "A" HERETO)

AND IN THE MATTER OF AN INTENDED PROCEEDING BEFORE
THE ONTARIO LABOUR RELATIONS BOARD

B E T W E E N:

GMAC COMMERCIAL CREDIT CORPORATION OF CANADA

Applicant
(Respondent in Appeal)

-and-

TCT LOGISTICS INC., TCT WAREHOUSING LOGISTICS INC.,
KPMG INC., the Interim Receiver and Trustee in Bankruptcy of
TCT Logistics Inc. and TCT Warehousing Logistics Inc.
(and the Companies listed on Schedule "A" hereto)

Respondents
(Respondents in Appeal)

FACTUM OF THE INDUSTRIAL WOOD &

ALLIED WORKERS OF CANADA, LOCAL 700

(Appellant)

PART I – NATURE OF THE APPEAL

1. This is an appeal by the Industrial Wood and Allied Workers of Canada, Local 700 (the "Union") of the decision of Ground, J. of April 29, 2003 of the Ontario Superior Court of Justice (Commercial List) denying leave to the Union to continue proceedings it instituted against the interim receiver of TCT Logistics Inc. and related companies (collectively, "TCT") before the Ontario Labour Relations Board (the "OLRB").

2. The Union has two major complaints against the interim receiver. Firstly, that the interim receiver employed the employees of TCT Warehousing Logistics ("TCT Warehousing"; a subsidiary of TCT) to continue running the business but did not abide by the terms of the Collective Agreement in force at the warehouse, in particular, failing to pay vacation pay, health benefits, make pension contributions and provide termination pay when the employees were terminated by the interim receiver months later when the business was sold.

3. Secondly, after operating the warehouse for several months, the interim receiver sold the TCT Warehousing to Spectrum Supply Chain Solutions ("Spectrum") on terms that stipulated that Spectrum not adopt the Collective Agreement. Spectrum currently operates the warehousing business without the Union. The Union asserts that the sale by the interim receiver to Spectrum was manipulated by the interim receiver and Spectrum to eliminate the Union from the Spectrum workforce and constitutes an unfair labour practice under the Labour Relations Act, 1999 (Ontario) ("LRA").

4. The Union filed the following applications with the OLRB.

• a declaration that KPMG and/or Spectrum is the successor employer and/or related employer to TCT and/or KPMG pursuant to Sections 69 and 1(4) of the LRA (OLRB File No. 0381-02-R);

• a declaration of unfair labour practice against KPMG and/or Spectrum for entering into a sale agreement that intentionally discriminates against unionized employees and eliminates the Union from the Spectrum workforce (OLRB File No. 0390-02-R);

• an order for the certification of the Union as the exclusive bargaining agent for the employees of Spectrum (OLRB File No. 0392-02-U);

Affidavit of Raymond Lewis, sworn October 22, 2002 ("Lewis Affidavit"), Appeal Book and Compendium, Tab 6 "J", "K" and "L"

5. On August 27, 2002, the OLRB released a decision declining to hear the applications involving the interim receiver because the initial receivership order required that leave be obtained from the court prior to commencing proceedings against the interim receiver. The Union moved for leave. Ground, J. released a decision on April 28, 2003 refusing to grant leave. The Commercial List judge held that KPMG, now in a dual capacity as both interim receiver and trustee in bankruptcy of TCT, was not a "successor employer" under the LRA and declined to even consider the applicable tests for leave.

6. As part of the leave motion before the Commercial List judge, the Union also requested the deletion of the following passage from paragraph 15 of the initial receivership order of January 24, 2002 (the "January 24 Order"):

EMPLOYEES

. . . Notwithstanding the appointment of the Receiver or the exercise of any of its powers or the performance of any of its duties hereunder, or the use or employment by the Receiver of any person in connection with its appointment and the performance of its powers and duties hereunder, the Receiver is not and shall not be deemed or considered to be a successor employer, related employer, sponsor or payer with respect to any of the employees of any of the Debtors or any former employees within the meaning of the Labour Relations Act (Ontario), the Employment Standards Act (Ontario), the Pension Benefits Act (Ontario), Canada Labour Code, Pension Benefits Standards Act (Canada) or any provincial, federal or municipal legislation or common law governing employment or labour standards, (the "Labour Laws") or any other statute, regulation or rule of law or equity for any purpose whatsoever, or any collective agreement or other contract between any of the Debtors and any of their present or former employees or otherwise. In particular, the Receiver shall not be liable to any of the employees of any of the Debtors for any wages (as "wages" are defined in the Employment Standards Act (Ontario)), including severance pay, termination pay and vacation pay, except for such wages as the Receiver may specifically agree to pay. The Receiver shall not be liable for an [sic] contribution or other payment to any pension or benefit fund;

The Commercial List judge did not delete the above-noted provision but amended it to indicate that it would continue to apply to the interim receiver in its role as a realizer of the assets of TCT.

PART II – NATURE OF THE CASE AND ISSUES

7. This case involves the issue of whether a Commercial List judge has the authority under section 47 of the BIA or section 101 of the Courts of Justice Act (Ontario) ("CJA") (the sections pursuant to which the interim receiver was appointed) or the inherent jurisdiction of the court to order that an interim receiver is not a "successor employer, related employer sponsor or payer" under the LRA, Employment Standards Act (Ontario) ("ESA") or Pension Benefits Act ("PBA") and thus immunize an interim receiver from the application of said statutes and from proceedings before the OLRB or the Financial Services Commission of Ontario, as applicable. In other words, this appeal involves the issue of whether a Commercial List judge has the authority to issue an order that abrogates the statute law of Ontario.

8. The issues are:

(a) Did the Commercial List judge err in interpreting section 47 of the Bankruptcy and Insolvency Act (Canada) ("BIA") or section 101 of the CJA or the inherent jurisdiction of the court as providing the court with authority to declare that an interim receiver is not a successor employer under the LRA and based on such interpretation, err further by not to deleting such provisions from the January 24 Order?

(b) In declining to delete such provision from the January 24 Order, did the Commercial List judge err in disregarding or misinterpreting sections 114 and 116 of the LRA which grants exclusive jurisdiction to adjudicate labour matters under the LRA to the OLRB?

(d) What is the status of a collective agreement in bankruptcy?

(e) Did the Commercial List judge err in denying leave to the Union to continue proceedings against the interim receiver before the OLRB without even considering the tests for leave under the January 24 Order and section 215 of the BIA?

PART III – THE FACTS

9. TCT operated as a conglomerate of companies, one of which was TCT Warehousing which operated a third-party warehousing facility at 137 Horner Avenue in Etobicoke, Ontario. TCT Warehousing had clients such as Kraft Canada, Lindt, Ferraro Chocolate and Greenley Textron.

10. The warehousing facility of 137 Horner Avenue was previously owned and operated by Livingston Distribution Centres Inc. On or about November 1, 1998, TCT acquired Livingston and took over the warehousing business. The Union had a collective agreement with Livingston from May 1, 1997 to April 30, 2000 and after the acquisition with TCT Warehousing from May 1, 2000 to April 30, 2004. The Union was the exclusive bargaining agent for the employees at the warehouse located at 137 Horner Avenue.

Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6 "A" and "B".

11. In January 2002, TCT became insolvent. On January 24, 2002, the secured creditor of TCT, General Motors Acceptance Corporation ("GMAC"), moved under section 101 of the CJA and section 47 of the BIA to appoint an interim receiver over all TCT companies, including TCT Warehousing. The motion was brought by GMAC without notice to most interested parties and without notice to the Union or the employees individually. The Court appointed KPMG Inc. ("KPMG") the interim receiver over TCT.

12. The January 24 Order appointing the interim receiver is lengthy and contains many provisions that directly impact the rights of the employees of TCT, in particular, paragraph 15 which states:

• all employees are immediately terminated;

• no proceedings can be brought by any party against the interim receiver without:

(a) leave of the Court; and

(b) without first posting security for costs; and

• the interim receiver is not nor shall deemed to be a "successor employer, related employer sponsor or payer" under the LRA and other provincial employment statutes.

13. After being appointed, the interim receiver did not advise the employees of TCT Warehousing that they were terminated, nor did the interim receiver advise the employees that the court order contained a provision that their employment was terminated. Rather, the interim receiver met with the employees and told them that operations were continuing "business as usual" and asked for their continuing support and loyalty. The memo provided to the employees by the interim receiver states:

This memo is to advise you that KPMG Inc. ("KPMG") has been appointed Interim Receiver of TCT Logistics Inc. and its affiliated companies by the Supreme Court of Ontario.

At this time, it is the intention of KPMG Inc. to continue operations in order to evaluate potential sales of various lines of business.

. . .

Your wages and payments to contract operators will be paid when due. Legitimate expenses should be submitted as usual, for reimbursement. While we appreciate that this will be a difficult time for employees and lease operators, your loyalty and support during this period is important to allow us to maximise the enterprise value for all stakeholders.

(Emphasis added)

Memo from KPMG to employees dated January 24, 2002, Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6 "C".

Supplementary Lewis Affidavit sworn January 13, 2003 ("Supplementary Lewis Affidavit"), Appeal Book and Compendium, Tab 7, paras. 2 and 3.

14. The Union consulted with its legal counsel. On February 1, 2002, counsel to the Union wrote to both TCT and KPMG advising that:

• the Collective Agreement remains operative and in full force and effect and

• if any sale of the warehousing business occurred, the purchaser was to be bound by the collective agreement.

Letter dated February 1, 2002, Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6 "D".

15. There was no response from the interim receiver or counsel to the interim receiver to the correspondence from Union's counsel.

16. On February 22, 2002, the interim receiver brought a motion for an order authorizing it to file an assignment in bankruptcy on behalf of TCT, including TCT Warehousing. Madam Justice Lax issued the Order. The Union did not receive prior notice of this motion.

Order of Madam Justice Lax dated February 22, 2002, Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6 "E".

17. On February 25, 2002, the interim receiver met with the employees and advised that a bankruptcy filing had been made but that operations were continuing on a business-as-usual basis. In a memo to employees, the interim receiver (and now trustee in bankruptcy) stated:

Effective today, TCT Logistics Inc. and its subsidiaries have filed for bankruptcy. This has no effect on existing operations and the ongoing sales process.

Once again, we would like to thank each of you for your continued support and co-operation.

(Emphasis added)

Letter from KPMG to employees dated February 25, 2002, Supplementary Lewis Affidavit, Appeal Book and Compendium, Tab 7 "D".
18. On April 12, 2002, the interim receiver/trustee entered into an agreement with a new company called Spectrum to sell the assets of TCT Warehousing. The Asset Purchase Agreement provided that the interim receiver/trustee will terminate all employees prior to the closing of the transaction, and that Spectrum would re-hire certain non-unionized employees only. Section 2.2 of the Asset Purchase Agreement states:

[O]n or before the Closing Date, the Vendor shall terminate the employment or continued retainer of all Employees whose employment is not subject to the terms of a Collective Agreement (the "Non-unionized employees") and shall deliver notices of lay-off prior to the Closing Date to those Employees whose employment is subject to the terms of a Collective Agreement (the "Unionized Employees") and the Vendor shall be responsible for delivering notices of lay-off in accordance with the terms of the Collective Agreements and applicable law. All Non-Unionized Employees listed on Schedule "H" attached hereto will be offered employment with the Purchaser on the basis that each Non-Unionized Employee who accepts the Purchaser's offer of employment shall be deemed to be a "new hire" of the Purchaser."

(Emphasis added)

Asset Purchase Agreement, Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6 "I".
19. According to the sale agreement, Spectrum would continue the warehousing business not at 137 Horner Avenue, but at a new location in Mississauga. Accordingly, the 137 Horner Avenue warehouse needed to be shut down. The interim receiver/trustee also retained Spectrum to manage the wind down of the warehousing operations at 137 Horner Avenue and facilitate the transfer of the business. The Union asserts in its Unfair Labour Practice application filed with the OLRB that Spectrum moved the warehousing business to Mississauga to deliberately circumvent the application of the Collective Agreement which was location-specific to the 137 Horner Avenue warehouse.

Notice to Employees dated April 16, 2002, Lewis Affidavit, supra, Appeal Book and Compendium and Compendium, Tab 6 "F".

20. The sale agreement between KPMG and Spectrum was executed on April 12, 2002. KPMG did not inform the employees that TCT Warehousing had been sold until April 16, 2002, when KPMG met with employees to announce the sale and that it would be seeking court approval of the sale two days later. Neither KPMG nor its counsel provided notice to counsel to the Union of the sale or the court motion scheduled for April 18, 2002 seeking approval of the sale. Counsel to the Union did not attend the motion. The motion proceeded unbeknownst to counsel to the Union before Madam Justice Greer who on April 19, 2002 issued an Order approving the sale.

Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6, paras. 10 and 11.

Twenty-First Report of the Interim Receiver/Trustee, December 30, 2002, Appeal Book and Compendium, Tab 10, "15".

21. On May 9, 2002, the interim receiver/trustee announced for the first time the termination of all unionized employees at the 137 Horner Avenue location and provided letters of termination to each employee.

Supplementary Lewis Affidavit, supra, Appeal Book and Compendium, Tab 7, para. "A".

22. Spectrum handpicked and hired certain formerly unionized employees from the 137 Horner Avenue warehouse to work at the Mississauga warehouse, without regard to the Union seniority list. A number of managers from TCT Warehousing were hired as managers of Spectrum. Spectrum is in the same business as TCT Warehousing and has set up operations at 6099 McLaughlin Road in Mississauga, Ontario, with essentially the same clientele as TCT. The President of Spectrum is Gordon Crowther, the former Vice-President, Warehousing and Logistics of TCT Warehousing. Spectrum was incorporated for the purpose of acquiring TCT Warehousing from the interim receiver.

Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6, paras. 13-17.

23. The Union asserts in its Unfair Labour Practice application filed before the OLRB that the sale to Spectrum was manipulated to eliminate the Union. The sale has resulted in the loss of jobs for all unionized employees at the 137 Horner Avenue location (except for those few later hand-picked by Spectrum) and the elimination of the Union from the workforce of the purchaser. Spectrum is currently operating the same warehousing business out of Mississauga which was operated at 137 Horner Avenue, and intends to operate the warehouse without the Union.

24. The offensive terms of the sale designed to oust the Union became known to the Union after the sale had been approved by the Court on April 18, 2003. The Union then instructed its counsel to file the aforementioned applications in the OLRB against KPMG and Spectrum.
25. The OLRB hearing proceeded on July 2, 2002. On August 27, 2002, the Board released its decision and held that it could not hear the applications because leave of the court must be first obtained pursuant to the January 24 Order and section 215 of the BIA for the applications involving the interim receiver. The Union then brought a motion before the Commercial List for such leave, an order deleting the requirement to post security for costs, and an order to delete paragraph 15 of the Order. The motion was heard on January 23 and 24, 2003. Ground, J. released a decision on April 30, 2003. Leave was denied.

Decision of O.L.R.B. dated August 27, 2002, Lewis Affidavit, supra, Appeal Book and Compendium, Tab 6 "M".

PART IV – LAW AND ARGUMENT

(a) Did the Commercial List judge err in interpreting Section 47 of the Bankruptcy and Insolvency Act (Canada) ("BIA") or Section 101 of the CJA or the inherent jurisdiction of the court as providing the court with authority to declare that an interim receiver is not a successor employer under the LRA and based on such interpretation, err further by not deleting paragraph 15 from the January 24 Order?

Section 47 of the BIA

26. The Commercial List judge erred in his interpretation of section 47 of the BIA. There is no authority in section 47 of the BIA to authorize the court to issue an order that an interim receiver is not a successor employer under the LRA, nor can the existing language of section 47 support such an interpretation.

BIA, s. 47

27. The language of section 47 of the BIA is clear in that it authorises a court to direct an interim receiver to do any or all of the following:

(a) take possession of all or part of the debtor's property mentioned in the appointment;

(b) exercise such control over that property and over the debtor's business as the court considers advisable; and

(c) take such other action as the court considers advisable.

28. In appointing an interim receiver, the court order should only contain those provisions that are necessary to enable the interim receiver to accomplish its tasks to preserve and protect the assets of the debtor. The order should not contain prospective and superfluous provisions not necessary to appoint the interim receiver and enable it to do its functions, and should certainly not contain provisions that contravene statute law.

Re Big Sky Living Inc. [2002] Carswell Alta. 875 (Alta. Q.B.) 659.

29. The purpose of section 47 of the BIA is to protect the interests of secured creditors. Section 47 gives a secured creditor the right to apply to court for the appointment of an interim receiver where a notice is about to be sent or has been sent to the debtor pursuant to the BIA. Under Section 47 of the BIA, interim receivers have been authorized to:

• take possession and control of the debtor's assets;

• manage and operate the debtor's business;

• receive and collect accounts payable to the debtor; and

• sell assets and distribute proceeds to creditors in accordance with their priority.

Weisz, S. and Skinner, J., The Use of Interim Receivers in Corporate Restructurings and Reorganizations (Part 1) 12 Comm. Insolv. Rep. 4 (April 2000).

30. While section 47 of the BIA grants the court the authority to issue a wide range of orders to direct an interim receiver to do things necessary for it to fulfil its duties, the language of section 47 does not support an interpretation that it provides the court with the power to issue a declaration that an interim receiver is or is not a successor employer under employment statutes and thereby exempt an interim receiver from the application of statutes governing employment and labour relations. Such a declaration is not in the nature of a "direction", as required in the opening sentence of subsection 47(2).

31. If the Federal Parliament wished to provide an interim receiver with immunity from employment statutes such as the LRA, PBA or ESA, it could have easily inserted such an exemption into the BIA. There is no such exemption. By comparison, the Federal Parliament has specifically exempted an interim receiver from environmental liability by subsection 14.06(2) of the BIA which states:

(2) Liability in respect of environmental matters – Notwithstanding anything in any federal or provincial law, a trustee is not personally liable in that position for any environmental condition that arose or environmental damage that occurred

(a) before the trustee's appointment; or

(b) after the trustee's appointment unless it is established that the condition arose or the damage occurred as a result of the trustee's gross negligence or wilful misconduct.

Subsection 14.06(1.1) of the BIA defines "trustee" in 14.06(2) to include an interim receiver.

BIA, s. 14.06
32. Furthermore, section 47 must be read in the context of the purpose of the section. The purpose of appointing an interim receiver under section 47 is to permit a security holder to obtain the assistance of the court to enforce its rights under a security instrument against the debtor's assets. The purpose of the court-appointed receiver is to preserve and protect the property in question, which means in most cases taking possession of the debtor's assets and managing them pending the resolution of claims. The purpose of section 47 is to enable the appointment of an interim receiver, not to authorize a court to issue orders to immunize an interim receiver from the application of employment statutes. Employment statutes such as the LRA, ESA and PBA continue to apply and operate to require the interim receiver to, inter alia, pay wages, health benefits and make pension contributions pursuant to a Collective Agreement during the period the employees are employed to continue running the business.

Bennett on Receiverships (2 ed.), (1999) [Toronto: Carswell] pp. 3-4

Section 101 of the CJA
33. Similarly, there is no authority in section 101 of the CJA (and related Rule 41 of the Rules of Civil Procedure) to give a Commercial List judge the power to issue a declaration that an interim receiver is not a successor employer under labour and employment statutes. Nor does section 101 exempt an interim receiver from the application of employment statutes the way subsection 14.06(2) of the BIA exempts an interim receiver from environmental liability. Section 101 is a short section that simply gives the power to a court to appoint an interim receiver "where it is just and convenient to do so".

CJA, s. 101
The Inherent Jurisdiction of the Court

34. It is settled law that a court does not have the inherent jurisdiction to issue an order that is contrary to statute law. As stated by Mr. Justice Dickson in Baxter Student Housing Ltd. v. College Housing Co-operative Ltd.:

[T]he inherent jurisdiction of the Court of Queen's Bench is not such as to empower judge of that Court to make an order negating the unambiguous expression of the legislative will. The effect of the order made in this case was to alter the statutory priorities which a court simply cannot do.

Baxter Student Housing Ltd. v. College Housing Co-operative Ltd. [1975] 57 D.L.R. (3d) (S.C.C.) at p.4.

Canadian Imperial Bank of Commerce v. Wildflower Productions Inc. (2001) 197 D.L.R. (4^th) 92 (B.C.C.A.)

35. In Standard Trust Co., the court, relying on College Housing stated:

To make the order requested the court will have to find jurisdiction within its own Rules, the Law and Equity Act or its inherent jurisdiction. Rule 47 provides that the court may appoint a receiver "either unconditionally or on terms...". The Law and Equity Act empowers the court to appoint a receiver and the order may be made "on terms in conditions that that the court thinks just". Neither of these, in my opinion, empowers the court to impose conditions that conflict with statutory duties, rights or liabilities.

Standard Trust Co. (In liquidation) v. Lindsay Holdings Ltd. [1994] B.C.J. No. 2638 (S.C.), para. 15.

36. The inherent jurisdiction of the court is a special and extraordinary power that should be exercised sparingly and only in a clear case where a statute leaves a functional gap or vacuum.

Baxter Student Housing Ltd., supra.

Re Royal Oak Mines Inc. [1999] O.J. No. 864 (Gen. Div.) (Comm. List), para. 4.

37. In the recent case of Royal Crest Lifecare Group Inc., a case also on the Toronto Commercial List, Farley, J. deleted provisions in an Order that initially stated a trustee in bankruptcy is not and shall not be deemed to be a successor employer under employment laws.

Re Royal Crest Lifecare Group Inc. [2003] O.J. No. 756 (Sup. Ct. J.) (Comm. List)

(b) In declining to delete such provision from the January 24 Order, did the Commercial List judge err in disregarding or misinterpreting Sections 114 and 116 of the Labour Relations Act, 1995 (Ontario)?

38. Paragraph 8 of the January 24 Order contravenes section 116 of the LRA. Section 116 of the LRA is clear in prohibiting a court from issuing any order that prohibits or restrains the OLRB or any of its activities. With respect, the Commercial List judge does not have the authority to issue an order that limits or curtails rights enshrined in the LRA. Section 116 of the LRA states:

No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.

(Emphasis added)
Labour Relations Act, 1999, supra, s. 116
39. The Supreme Court of Canada has also made it clear that the courts have no jurisdiction over matters and disputes whose essential character arises from the collective agreement.

Weber v. Ontario Hydro (1995), 125 D.L.R. (4^th) 583 (S.C.C.)

LRA, supra, s. 57

(c) Did the Commercial List judge misapply the "ancillary" and "necessarily incidental" doctrines of constitutional law to conclude he has the power to issue an Order under section 47 of the BIA that an interim receiver is not a successor employer under the LRA?
40. With respect, the Commercial List judge misapplied the constitutional doctrine pertaining to the "ancillary" and "necessarily incidental" doctrine. That doctrine is used in the analysis of the constitutionality of an impugned law, or aspect of a law where a reviewing court must measure the degree of encroachment a legislative scheme has on the other government's sphere of power, and then determine how necessary the impugned provision is to the otherwise valid legislative scheme. For minor encroachments, the rational connection test is appropriate. For major encroachments, a stricter test (such as "truly necessary" or "essential" as appropriate). In the General Motors case referred to by the Commercial List judge, the challenged law was the civil remedy contained in the federal competition statute. The civil remedy intruded into provincial power over property and civil rights but only "in a limited way". It was sufficient to test the validity of the law by the rational connection test, and applying that test, the court upheld the validity of the legislated civil remedy.

Hogg, P.W., Constitutional Law of Canada, Vol. 1, pp. 15-35 – 15-40.

General Motors of Canada Ltd. v. City National Leasing (1989) 58 D.L.R. (4^th) 255 (S.C.C.).

41. The process of determining the constitutionality of a statute can be summarized as follows:

In Canada, the distribution of legislative power between the federal Parliament and the provincial Legislature is mainly set out in ss. 91 and 92 of the Constitution Act, 1867. Section 91 lists the kind of laws which are competent to the federal Parliament; s. 92 lists the kind of laws which are competent to the provincial Legislatures. Both Sections use a distinctive terminology, giving legislative authority in relation to "matters" coming within "classes of subjects". This terminology emphasises and helps to describe the two steps involved in the process of judicial review: the first of it is to identify the "matter" (or pith and substance) of the challenged law; the second steps is to assign the matter to one of the "classes of subjects" (or heads of legislative power). Of course, neither of these two steps has any significance by itself. The challenged statute is characterised (or classified) as in relation to a "matter" (step 1) only to determine whether it is authorized by some head of power in the Constitution. The "classes of subjects" are interpreted (step 2) only to determine which one will accommodate the matter of a particular statute.

Hogg, Constitutional Law of Canada, supra, pp. 15.5 – 15.6

42. Once the matter (or pith and substance) of a challenged law has been identified, the second stage in judicial review is to assign the matter to one of the "classes of subjects" (or heads of legislative power) specified in the constitution which requires the interpretation of the power distributing language of the constitution. One of the doctrines used at this step of constitutional analysis is the "ancillary power" doctrine. In Canada, the ancillary power doctrine can be described as determining whether a challenged law, which infringes on another field of legislative competence, but may be truly necessary for the main law to function, whose constitutionality is not at issue.

43. This analysis, however, is to be performed with respect to an impugned law - not a court order. The Union does not challenge the constitutional validity of section 47 of the BIA. With respect, the Commercial List judge erred by reviewing his own court order under the rational connection doctrine of constitutional analysis and concluded that his order that an interim receiver is not to be a successor employer under the LRA is "necessarily incidental" to an interim receiver's functions as a realizer of the debtor's assets. With respect, this analysis is flawed. The Commercial List judge issued an order that contravenes the entire fabric of employment and labour statutes, which the court has no power to do. The reliance on the rational functional connection test of constitutional analysis is misplaced.

(d) What is the status of a collective agreement in a bankruptcy?
44. A collective agreement does not terminate as a result of the bankruptcy of the employer. The collective agreement remains in force and can only be terminated by the mechanisms set out in the LRA. Accordingly, an entity (whether an interim receiver or trustee in bankruptcy) to whom the business is transferred by court order and who employs employees to continue running the business must abide by the terms of the collective agreement. Subsection 69(2) of the LRA states that:

[W]here an employer who is bound by or is party to a collective agreement with a trade union ... sells his, her or its business, the person to whom the business has been sold is, until the Board otherwise declares, bound by the collective agreement as if the person had been a party thereto...

Subsection 69(1) of the LRA defines "sells" as including "leases, transfers and any other manner of disposition".

LRA, supra, ss. 69(1) and (2)

45. Where a court-appointed monitor (or interim receiver) is empowered to run a business and employs employees of a business that has a collective agreement with employees, the monitor (or interim receiver) must compensate the employees in accordance with the terms of the collective agreement, including the provision of employee benefits. The Quebec Court of Appeal recently ordered that:

. . . [S]ince the layoff of all unionized employees did not terminate the certifications and people were recalled the next day or later on to fill certified positions, it follows that the consideration to be paid to these people must that provided for in the collective agreements or in any amendment of the agreements negotiated with the appropriate union. That consideration includes salaries and other benefits associated with the services provided since the initial order.

. . .

Thus, unionized employees kept on or recalled are entitled to be paid immediately by the monitor for any service provided after the date of the order ... in accordance with the terms of the original collective agreement or with the terms of an amended agreement approved by the union concerned.

(Emphasis added)

Re Syndicat national de l'amiante d'Asbestos inc. v. Jeffrey Mine Inc. (2003) Carswell Que. 90 (Que. C.A.), paras. 51, 52 and 61.

46. In Saan Stores, the Nova Scotia Court of Appeal also held that a collective agreement does not terminate in bankruptcy:

In my opinion, statements in the case law that bankruptcy terminates employment contracts, including collective agreements are broad and, therefore, subject to misinterpretation and misapplication when taken out of context. In my opinion, the statements in the case law stand only for the proposition that the relationship of the employer and the employee is terminated as between the bankrupt employer and the employees on the bankruptcy of the employer.

[A]lthough employment is terminated by bankruptcy, the termination of the employer/employee relationship between the bankrupt and the employee does not necessarily terminate benefits the terminated employee is entitled to by reason of statutory schemes. Statutes providing such benefits are to be given a liberal interpretation so as to achieve their objective.

(Emphasis added)

Saan Stores Ltd. v. Nova Scotia Labour Relations Board (1999), 172 D.L.R. (4^th) 134 (N.S.C.A.).

47. Bargaining rights can only be terminated in the ways prescribed by the LRA such as on an application of the employees on a transfer from one union to another, a finding by the OLRB that bargaining rights have been abandoned, or a finding by the OLRB that there was no successorship on the disposition of a business.

LRA, supra, s. 62-66, and 69

Re Shopmen's Local Union No. 743 and Brayshaws Steel (1971), 26 D.L.R. (3d) 153 (Ont. CA) at p. 160.

48. A collective agreement continues to exist even if all of the employees who are subject to it cease to be employed, and there are no employees left in the bargaining unit. The termination of individual employment contracts does not terminate an existing collective agreement, nor does it terminate bargaining rights.

Cadillac Fairview Corp. [1997] O.L.R.D. 1780 (O.L.R.B.) at paras. 27 – 29.

Saan Stores, supra, p. 151.

49. With respect, the statement of the Farley, J. in Royal Crest Lifecare that on bankruptcy the collective agreement "is put into suspended animation" only to be revived if the business is acquired by a purchaser is not correct.

Re Royal Crest Lifecare Group Inc., supra.

The Nature of a Collective Agreement
50. A collective agreement is a creature of statute, in this case, the LRA. It is not an ordinary commercial contract. Collective agreements are not subject to common law contractual concepts such as repudiation, fundamental breach and privity and they bind persons who are not parties, such as individual employees and successors. The LRA regulates collective bargaining rights in Ontario and prescribes in detail how and when such rights are acquired, exercised and terminated. Further, the Ontario Legislature has vested a specialised tribunal, the OLRB, with exclusive jurisdiction to deal with matters arising under the LRA and ESA and in particular, to determine whether a particular entity is or is not a successor employer.

Labour Relations Act (Ontario), supra, ss. 1(4), 69, 114(1) and 116

McGavin Toastmaster Ltd. v. Ainscough, (1975) 54 D.L.R. (3d) 1 (S.C.C.)

Cadillac Fairview Corp., supra, at para. 20 - 21

CAW v. Vulcan Containers Ltd. [1997] O.L.R.B. Rep. 765 at paras. 47, 55 to 63 and 68 to 70

51. Once a union becomes certified, it obtains "bargaining rights" and becomes the exclusive bargaining agent on behalf of employees. "Bargaining rights" are a legal, statutory, agency relationship between a trade union and a bargaining unit, a generic grouping of employees, who may or may not be members of the union.

52. The implications of a trade union's exclusive bargaining agency on individual employment relationships have long been recognized. In Noel v. Société d'énergie de la Baie James, the Supreme Court of Canada stated:

The collective agreement is implemented, first and foremost, between the union and the employer. Certification, followed by the collective agreement, takes away the employer's right to negotiate directly with its employees. Because of its exclusive representation function, the presence of the union erects a screen between the employer and the employees. The employer loses the option of negotiating different conditions of employment with individual employees ...

Noël v. Société d'énergie de la Baie James (2001), 202 D.L.R. (4th) 1 (S.C.C.) at p. 19

The Purpose of the Successor Employer Rule in the LRA
53. Section 69 of the LRA states that where an employer who is bound by a collective agreement sells or disposes of his or her business, the person to whom the business has been sold is bound by the collective agreement, as if the person had been a party thereto, until the OLRB declares otherwise. Thus, the interim receiver/trustee is a successor employer and must abide by the terms of the Collective Agreement and pay the employees according to the Collective Agreement, until the OLRB declares otherwise.

LRA, supra, s. 69.

54. The purpose of successor employer provisions in labour relations legislation is to protect the permanence of collective bargaining rights. The Supreme Court of Canada in W.W. Lester Ltd. v. U.A., Local 740 stated:

Section 89 is designed to prevent the loss of union protection by employees whose company's business is sold or transferred to another business concern. This provision, known colloquially as a "successor provision", is found in other labour relations statutes cf., Alberta Labour Relations Code, S.A. 1988, c.L-1.2, s. 44; Manitoba, Labour Relations Act, R.S.M. 1987, c. L-10, s. 59, Nova Scotia, Trade Union Act, S.N.S. 1972, c. T-19, s.29; Ontario, Labour Relations Act, R.S.O. 1980, c. 228, s. 63; Saskatchewan. Trade Union Act, R.S.S. 1978, c. T-17, s. 37, and Canada, Canada Labour Code, R.S.C. 1985, c. L-2, s.45. The provisions exist to protect collective bargaining agreements from becoming meaningless due to, inter alia, the manipulation of the corporate form by employers. Such manipulation can be accomplished by a variety of means and the appellant submitted that "double-breasting" was one of them. It was this situation the board had to address.

(Emphasis added)

United Association of Journeymen and Apprentices of the Pipefitting Industry v. W.W. Lester (1978) Ltd. (1990) 76 D.L.R. (4^th) 389 (S.C.C.), p. 393.

Corporation of the Town of Ajax v. The National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 222 et al., (1998) 41 O.R. (3d) 426 (C.A.) affirmed, (2000) 185 D.L.R. (4^th) 618 (S.C.C.).

(e) Did the Commercial List judge err in denying leave to the Union to continue proceedings against the Interim Receiver before the Ontario Labour Relations Board without even considering the tests for leave under the January 24 Order and section 215 of the BIA?

The test for leave under the receivership order

55. Paragraph 8 of the January 24 Order states:

NO PROCEEDINGS AGAINST THE RECEIVER

THIS COURT ORDERS that no actions or proceedings shall be commenced against KPMG Inc. or the Receiver in any Court or other Tribunal unless the leave of this Honourable Court is first obtained on motion on at least (7) days notice to the Receiver or KPMG Inc. and upon further ordering or further order securing, as security for costs, the solicitor and his own client costs of the Receiver or KPMG Inc. in connection with any such action or proceeding.

56. Labour boards across Canada have held that obtaining leave is not required to bring a proceeding against an interim receiver and trustee in bankruptcy before a labour board.

RASL Ventures Ltd. and 289133 B.C. Ltd. c.o.b. as The Chetwynd Hotel (1986) B.C.L.R.B. No. 209/87.

Drew Sawmills Ltd. and Touche Ross Ltd. and I.W.A., Local 1-417 (1984) B.C.L.R.B. No. 307/84.

Price Waterhouse Ltd., [1983] OL.R.B. Rep. March 441.

57. The test for granting leave to commence proceedings against a receiver pursuant to a receivership order is that leave will generally be granted unless it is clear that there is no foundation for the claim or the action is frivolous or vexatious.

Gallo v. Beber (1998), 31 C.P.C. (4^th) 60 (Ont. C.A.) at para 7.

RoyNat Inc. v. Allan (1988), 69 C.B.R. (N.S.) 245 (Alta. Q.B.).

58. The court must refrain from applying a test that is too strict when considering whether to grant leave. The applicant need not prove the claim, but only show that there is some foundation for a claim.

Wenzel v. Cougar Tool Inc., [1996] 45 Alta. L.R. (C.A.).

59. Further, the court should grant leave in matters specifically concerning employees and collective bargaining. In I.W.A. Local 1-324 v. Wescana Inn Ltd, the court granted leave to the Union to commence proceedings against the receiver/manager. The court held that it was in the interest of public policy to permit the proceeding to continue because collective bargaining should be encouraged. The court stated:

The remaining question is whether or not leave should be given to the union in the circumstances of this particular case... No doubt the courts will proceed on the basis that it is clear legislative policy that the organization of employees into unions which conduct collective bargaining under the restraints and protection of the Labour Relations Act should be encouraged where a sufficient number of employees in an appropriate bargaining unit freely choose a union to be their bargaining agent.

. . .

Under all the circumstances, I hold that this is an appropriate case for leave to be given.

(Emphasis added)

I.W.A., Local 1-324 v. Wescana Inn Ltd. (1977), 82 D.L.R. (3d) 368 (Man. C.A.) at para. 26.

60. To obtain leave, it is not necessary for the applicant to establish a strong prima facie case against the receiver, nor is it the court's function on such an application to decide on the balance of probabilities whether the applicant will be able to prove the allegations it is making against the receiver. Where, however, the actions of the receiver which form the basis of the intended proceedings have been approved by the court in the course of the receivership, the court will require a strong prima facie case before it will grant leave to take proceedings against the receiver.

Bank of America Canada v. Willann Investment Ltd. (1993), 23 C.B.R. (3d) (Ont. Gen. Div.).

61. In Willann, the conduct of the receiver complained of (the sale of certain assets) was subject to a "hotly contested hearing in which the Crown vigorously objected to the sale." The court decided to approve the sale. The Crown then sought leave to commence proceedings against the receiver for negligence in the manner of the sale. Blair, J. held that the issue of the manner of the sale had already been decided and approved by the court and that the doctrines of res judicata and issue estoppel applied. Leave was therefore refused. Willann is distinct from the case at bar where the interim receiver/trustee's motion to approve the sale to Spectrum was brought without notice to union's counsel did not attend the motion opposing the sale. The court, therefore, did not decide and approve all the specific features of the sale to Spectrum such as the intentional ousting of the Union. Accordingly, a strong prima facie need not be shown and the doctrines of res judicata and issue estoppel do not apply.

62. The applicant does not need to prove a "strong prima facie case" where there has been no notice to the applicant of a court motion approving the receiver's conduct or providing a discharge and the applicant could not attend and make submissions.

Gallo v. Beber (1998). 31 C.P.C. (4^th) 60 (Ont. C.A.) at para. 11.

Roynat, supra.

The test for leave under Section 215 of the BIA

63. Section 215 of the BIA states:

No action against Superintendent, etc., without leave of court

Except by leave of the court, no action lies against the Superintendent, an official receiver, an interim receiver or a trustee with respect to any report made under, or any action taken pursuant to, this Act.

BIA, s. 215

64. The test for leave under section 215 is similar to the test for leave under a receivership order. The court shall grant leave under section 215 if a factual basis for the proposed claim against the trustee exists. The aggrieved party need not prove the claim but only demonstrate that there is a factual basis for the claim and that the claim discloses a cause of action.

It is common ground between the parties that the evidence required to support an order under s. 215 must be sufficient to establish that there is a factual basis for the proposed claim and that the proposed claim discloses a cause of action. However, the evidence does not have to be sufficient to enable the motions judge to make a final assessment of the merits of the proposed claim. The sufficiency of the evidence must be measured in the context of the purpose of s. 215, which is to prevent the trustee from having to respond to actions which are frivolous or vexatious or which do not disclose a cause of action: see Mancini (Trustee of) v. Falconi (1993), 61 O.A.C. 332 at 337.

(Emphasis added)

Society of Composers, Authors & Music Publishers of Canada v. Armitage (2000), 50 O.R. (3d) 688 (C.A.) at para. 2 ("SOCAN").

65. The court is not to determine the merits of the proposed claim in deciding whether to grant leave. Indeed, the court would exceed its jurisdiction if it were to determine the merits of the claim in deciding whether to grant leave.

SOCAN, supra, para. 11.

66. The court's role is to determine that the proposed proceedings are neither frivolous nor vexatious, and that some evidence exists to form a factual foundation for the claim. In Mancini, Osborne, J.A. summarized the test as:

1. Leave to sue a trustee should not be granted if the action is frivolous or vexatious. Manifestly unmeritorious claims should not be permitted to proceed.

2. An action should not be allowed to proceed if the evidence filed in support of the motion, including the intended action as pleaded in draft form, does not disclose a cause of action against the trustee. The evidence typically will be presented by way of affidavit and must supply facts to support the claim sought to be asserted: see Peat Marwick Ltd. v. Thorne Riddell, supra.

3. The court is not required to make a final assessment of the merits of the claim before granting leave: see Re Lufro Ltee; Leblond v. Tremblay (1985) 54 C.B.R. (N.S.) 1999 (Que. C.A.)

Mancini (Trustee of) v. Falconi (1993), 61 O.A.C. 332 at para. 7.

Toronto Dominion Bank v. Alex L. Clark Ltd. (1993), 22 C.B.R. (3d) 6 (Ont. Gen. Div.) at para. 7.

67. Despite the clear test for leave established by this Court of Appeal in Mancini and later in SOCAN, Spence, J. in Re 588891 Ontario Ltd. refused to grant leave to the union on the basis that the exclusive jurisdiction clause in the LRA conflicted with the notion that collective agreements are automatically terminated by bankruptcy, which is not correct. Spence, J. premised his decision on the dissenting judgment of Abella, J.A. in St. Mary's Paper Inc., where she stated that collective agreements terminate on bankruptcy. The majority did not adopt that statement. It is respectfully submitted that 588891 Ontario Ltd. is wrongly decided.

Re 588871 Ontario Ltd. (1995) 33 C.B.R. (3d) 28 (Ont. Gen. Div.).

68. In numerous cases, labour boards have held that a court-appointed receiver is a successor employer under labour standards legislation.

Vulcan Containers Ltd., [1997] O.R.L.D. No. 2662.

H&S Reliance Ltd., [1998] O.L.R.D. No. 4087. (O.L.R.B.).

Re Wilson Place Management Ltd., [1997] B.C.L.R.B. No. 397.

12403 Holdings Ltd. (Northern Park Inn) Campbell, Saunders Ltd. and Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, (January 25, 1998), No. C24/88 (B.C.I.R.C.).

RASL Ventures Ltd., supra.

Maritime Life Assurance Co. v. Chateau Gardens (Hanover) Inc. et al, (1983), 2 D.L.R. (4th) 553 (Ont. H.C.J.).

Strong case against the interim receiver/trustee

69. In the present case, the interim receiver/trustee did not terminate the employees of TCT Warehousing after it was appointed and employed the employees to keep the business running. specifically informing the employees it was "business as usual". The interim receiver/trustee did not abide by the terms of the Collective Agreement and did not pay the employees in accordance with the Collective Agreement. Several months later, the interim receiver/trustee sold the warehousing business to Spectrum and then terminated the employees without paying termination pay.

70. The Union asserts the sale was manipulated to eliminate the Union from the new Spectrum warehousing business. Spectrum has:

• the same business as TCT;

• essentially the same clientele as TCT;

• set up a facility in Mississauga serving the greater Toronto area;

• hired selected TCT management and other employees, including Union employees, without regard to the Union seniority list; and

• intends to operate its warehouse without the Union.

71. The conduct of the interim receiver/trustee in the employment and termination of the employees provide a very strong case in support of an OLRB finding that the interim receiver/trustee is a successor employer and/or related employer under the LRA. Furthermore, the evidence is very strong that the sale to Spectrum was manipulated by the interim receiver and Spectrum to oust the Union and provides a very strong case against the interim receiver/trustee that it engaged in unfair labour practices contrary to the LRA.. Leave should be granted to proceed with the OLRB applications.

PART V – ORDERS REQUESTED

72. The Appellant requests:

1. An Order granting leave to the Union to continue proceedings before the OLRB;

2. An Order deleting paragraph 15 of the January 24 Order as amended by the Order of Ground, J. of April 29, 2003; and

3. Costs on a substantial indemnity basis.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

KOSKIE MINSKY

Suite 900, 20 Queen Street West

Toronto, ON M5H 3R3

_____________________________

Stephen Wahl (LSUC #17201O)

______________________________

Andrew J. Hatnay (LSUC #31885W)

Tel: 416-977-8353

Fax: 416-977-3316
Solicitors to the Union

SCHEDULE "A"
(LIST OF COMPANIES)

TCT Logistics Inc.
TCT Acquisition No. 1 Ltd.
Atomic TCT Logistics Inc.
Atomic TCT Logistics (Alberta) Inc.
TCT Canada Logistics Inc.
Inter-Ocean Terminals (B.C.) Ltd.
Atomic Transport Incorporated
TCT Warehousing Logistics Inc.
TCT Warehousing Logistics No. 2 Inc.
R.R.S. Transport (1998) Inc.
TCT Acquisition No. 2 Ltd.
Tri-Line Expressways Ltd. (a successor to Tri-Line Expressway Ltd. and
TCT Acquisition No. 3 Ltd.)

Tri-Line Expressways, Inc.
2984008 Canada Inc.
High-Tech Express & Distribution Inc.
606965 British Columbia Ltd.
606966 British Columbia Ltd.

______________________________________________________________________________

CERTIFICATE

I certify that an order under Rule 61.09(2) is not required and I estimate that 2.5 hours will be required for the appellant's oral argument, not including reply.

________________________________
Andrew J. Hatnay
Counsel for the Appellant
______________________________________________________________________________

APPENDIX "A"
LIST OF AUTHORITIES

1. Re Big Sky Living Inc. [2002] Carswell Alta. 875 (Alta. Q.B.) 659.

2. Weisz, S. and Skinner, J., The Use of Interim Receivers in Corporate Restructurings and Reorganisations (Part 1) 12 Comm. Insolv. Rep. 4 (April 2000).
3. Bennett on Receiverships (2 ed.), (1999) [Toronto: Carswell].

4. Baxter Student Housing Ltd. v. College Housing Co-operative Ltd. [1975] 57 D.L.R. (3d) (S.C.C.).

5. Canadian Imperial Bank of Commerce v. Wildflower Productions Inc. (2001) 197 D.L.R. (4^th) 92 (B.C.C.A.).

6. Standard Trust Co. (In liquidation) v. Lindsay Holdings Ltd. [1994] B.C.J. No. 2638 (S.C.).

7. Re Royal Oak Mines Inc. [1999] O.J. No. 864 (Gen. Div.) (Comm. List).

8. Re Royal Crest Lifecare Group Inc. [2003] O.J. No. 756 (Sup. Ct. J.) (Comm. List).

9. Weber v. Ontario Hydro (1995), 125 D.L.R. (4^th) 583 (S.C.C.).

10. Hogg, P.W., Constitutional Law of Canada, Vol. 1.

11. General Motors Ltd. v. City National Leasing (1989) 58 D.L.R. (4^th) 255 (S.C.C.).

12. Syndicat national de l'amiante d'Asbestos inc. v. Jeffrey Mine Inc. (2003) Carswell Que. 90 (Que. C.A.).

13. Saan Stores Ltd. v. Nova Scotia Labour Relations Board (1999), 172 D.L.R. (4^th) 134 (N.S.C.A.).

14. Re Shopmen's Local Union No. 743 and Brayshaws Steel (1971), 26 D.L.R. (3d) 153 (Ont. CA).

15. Cadillac Fairview Corp. [1997] O.L.R.D. 1780 (O.L.R.B.).

16. McGavin Toastmaster Ltd. v. Ainscough, (1975) 54 D.L.R. (3d) 1 (S.C.C.).

17. CAW v. Vulcan Containers Ltd. [1997] O.L.R.B. Rep. 765.

18. Noël v. Société d'énergie de la Baie James (2001), 202 D.L.R. (4th) 1 (S.C.C.).

19. United Association of Journeymen and Apprentices of the Pipefitting Industry v. W.W. Lester (1978) Ltd. (1990) 76 D.L.R. (4^th) 389 (S.C.C.)..

20. Corporation of the Town of Ajax v. The National Automobile Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) and its Local 222 et al., (1998) 41 O.R. (3d) 426 (C.A.) affirmed, (2000) 185 D.L.R. (4^th) 618 (S.C.C.).

21. RASL Ventures Ltd. and 289133 B.C. Ltd. c.o.b. as The Chetwynd Hotel (1986) B.C.L.R.B. No. 209/87.

22. Drew Sawmills Ltd. and Touche Ross Ltd. and I.W.A., Local 1-417 (1984) B.C.L.R.B. No. 307/84.

23. Price Waterhouse Ltd., [1983] OL.R.B. Rep. March 441.

24. Gallo v. Beber (1998), 31 C.P.C. (4^th) 60 (Ont. C.A.).

25. RoyNat Inc. v. Allan (1988), 69 C.B.R. (N.S.) 245 (Alta. Q.B.).

26. Wenzel v. Cougar Tool Inc., [1996] 45 Alta. L.R. (C.A.).

27. I.W.A., Local 1-324 v. Wescana Inn Ltd. (1977), 82 D.L.R. (3d) 368 (Man. C.A.).

28. Bank of America Canada v. Willann Investment Ltd. (1993), 23 C.B.R. (3d) (Ont. Gen. Div.).

29. Society of Composers, Authors & Music Publishers of Canada v. Armitage (2000), 50 O.R. (3d) 688 (C.A.).

30. Mancini (Trustee of) v. Falconi (1993), 61 O.A.C. 332.

31. Toronto Dominion Bank v. Alex L. Clark Ltd. (1993), 22 C.B.R. (3d) 6 (Ont. Gen. Div.).

32. Re 588871 Ontario Ltd. (1995) 33 C.B.R. (3d) 28 (Ont. Gen. Div.).
33. Vulcan Containers Ltd., [1997] O.R.L.D. No. 2662 (O.L.R.B.).
34. H&S Reliance Ltd., [1998] O.L.R.D. No. 4087 (O.L.R.B.).

35. Re Wilson Place Management Ltd., [1997] B.C.L.R.B. No. 397.

36. 12403 Holdings Ltd. (Northern Park Inn) Campbell, Saunders Ltd. and Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, (January 25, 1998), No. C24/88 (B.C.I.R.C.).

37. Maritime Life Assurance Co. v. Chateau Gardens (Hanover) Inc. et al, (1983), 2 D.L.R. (4th) 553 (Ont. H.C.J.).

APPENDIX "B"
TEXT OF RELEVANT PROVISIONS OF STATUTES

1. Labour Relations Act 1995, S.O. 1995, c.1, Sched. A., ss. 1(4), 69 111, 114 and 116.

2. Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3, s. 215.
3. Courts of Justice Act, R.S.O. 1990 Chap. C.43, s. 101(1).

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