Royal Crest Lifecare (Bankrupt), Re, (2004) 181 O.A.C. 115 (CA)

• Judge: Borins, MacPherson and Cronk, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 17, 2003
• Jurisdiction: Ontario
• Citations: (2004), 181 O.A.C. 115 (CA)

Royal Crest Lifecare (Bankrupt), Re (2004), 181 O.A.C. 115 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JA.066

Canadian Union of Public Employees, Locals 1712, 3009, 2225-05, 2225-06 and 2225-12, and Service Employees International Union, Locals 204 and 532 (appellants) v. Ernst & Young Inc., in its capacity as trustee in bankruptcy for the Royal Crest Lifecare Group Inc. (respondent) v. Confederation Life Insurance Company, in Liquidation (respondent) and The National Life Assurance Company of Canada (respondent) and Attorney General of Ontario (intervenor)

(C39457)

Indexed As: Royal Crest Lifecare Group Inc. (Bankrupt), Re

Ontario Court of Appeal

Borins, MacPherson and Cronk, JJ.A.

January 21, 2004.

Summary:

Related companies were petitioned into bankruptcy. The bankruptcy trustee sought an order that it not be bound by the collective agreements between the companies and the unions that represented its employees and that it not be deemed to be a successor employer under the Ontario Labour Relations Act and other labour and employment laws. The unions resisted the trustee's motion and cross-moved for leave under s. 215 of the Bankruptcy and Insolvency Act to apply to the Ontario Labour Relations Board for the designation of the trustee as a successor employer.

The Ontario Superior Court, in a decision reported at [2003] O.T.C. Uned. 157, dismissed the trustee's motion. The court also dismissed the cross-motion, but without prejudice to such a motion being brought back on again with "appropriate factual underpinning". The unions appealed.

The Ontario Court of Appeal, Borins, J.A., dissenting, dismissed the appeal.

Bankruptcy - Topic 6463

Administration of estate - Actions against bankrupt - Leave to commence action or lifting of stay - Unionized related companies were petitioned into bankruptcy - On the same day as its appointment, the bankruptcy trustee sought an order that it not be bound by the collective agreements and that it not be deemed a successor employer under the Ontario Labour Relations Act and other labour and employment laws - The unions cross-moved for leave under s. 215 of the Bankruptcy and Insolvency Act to apply to the Ontario Labour Relations Board for the designation of the trustee as a successor employer - The motions judge dismissed both motions - The unions appealed - The Ontario Court of Appeal held that the motions judge correctly determined that the union's motion was premature.

Cases Noticed:

Rizzo and Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 12].

Algoma Steel Inc., Re (2001), 147 O.A.C. 291 (C.A.), refd to. [para. 23].

Banque Nationale de Paris (Canada) v. Opiola (Bankrupt), (2001), 277 A.R. 80; 242 W.A.C. 80 (C.A.), refd to. [para. 23].

Walls (Fred) & Son Holdings Ltd. (Bankrupt), Re (2003), 179 B.C.A.C. 140; 295 W.A.C. 140 (C.A.), refd to. [para. 23].

Society of Composers, Authors and Music Publishers of Canada v. Armitage (2000), 137 O.A.C. 74; 50 O.R.(3d) 688 (C.A.), refd to. [para. 25].

Mancini (Bankrupt) et al. v. Falconi et al. (1993), 61 O.A.C. 332 (C.A.), refd to. [paras. 25, 51].

Vanderwoude et al. v. Scott and Pichelli Ltd. et al. (2001), 143 O.A.C. 195 (C.A.), refd to. [para. 25].

Wong v. Lee et al. (2002), 157 O.A.C. 340; 58 O.R.(3d) 398 (C.A.), refd to. [para. 40].

Saan Stores Ltd. v. Labour Relations Board (N.S.) et al. (1999), 173 N.S.R.(2d) 222; 527 A.P.R. 222 (C.A.), refd to. [para. 55].

588871 Ontario Ltd., Re (1995), 33 C.B.R.(3d) 28 (Ont. Bktcy.), refd to. [para. 57].

Husky Oil Operations Ltd. v. Minister of National Revenue et al., [1995] 3 S.C.R. 453; 188 N.R. 1; 137 Sask.R. 81; 107 W.A.C. 81, refd to. [para. 68].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 2003), p. 8.10 [para. 62].

Counsel:

Sean Dewart and Michael Kainer, for the appellants;

John A. MacDonald, for the respondent, Ernst & Young;

Harold P. Rolph, for independent counsel for the Trustee;

L. Joseph Latham and Joseph K. Morrison, for the respondent, Confederation Life;

Kyla E.M. Mahar, for the respondent, National Life;

Robin K. Basu, for the intervenor.

This appeal was heard on September 17, 2003, by Borins, MacPherson and Cronk, JJ.A., of the Ontario Court of Appeal. The decision of the Court of Appeal was delivered on January 21, 2004, when the following opinions were filed:

MacPherson, J.A. (Cronk, J.A., concurring) - see paragraphs 1 to 37;

Borins, J.A. - see paragraphs 38 to 74.