Murray Stanley Gold

The Court of Appeal for Ontario refused leave to appeal a sealing order issued by a CCAA supervising judge in the Laurentian University insolvency proceedings.

The moving parties, including faculty unions, sought access to confidential documents (letters between Laurentian and the Ministry of Colleges and Universities) that were sealed to protect restructuring efforts.

The Court applied the Sierra Club test for sealing orders and the four-factor test for leave to appeal in CCAA cases, finding the proposed appeal was not prima facie meritorious, would unduly hinder the time-sensitive restructuring, and was not of sufficient significance to the action.

The court emphasized deference to the supervising judge's discretion in complex CCAA matters.

This supplementary endorsement addresses a challenge to a sealing order granted in the Companies’ Creditors Arrangement Act (CCAA) proceedings of Laurentian University of Sudbury.

The sealing order covered confidential correspondence between the University and the Ministry of Colleges and Universities, which Laurentian University argued contained sensitive information that, if disclosed, could jeopardize its restructuring efforts.

Parties opposing the sealing order contended there was no evidentiary basis for it.

Applying the two-branch test from Sierra Club of Canada v. Canada (Minister of Finance), the court found that the disclosure posed a real and substantial risk to the University's future viability, that the "commercial" interest extended to the broader community, and that no reasonable alternatives existed given ongoing mediation.

Consequently, the court maintained the confidentiality of the exhibits and the existing sealing order.

The applicant, a retired teacher, alleged that the survivor benefit provisions of the Ontario Teachers' Pension Plan discriminated on the basis of sex and marital status.

The respondents sought early dismissal on the basis that the application was filed outside the one-year limitation period under section 34 of the Human Rights Code.

The Tribunal found that the alleged discrimination did not constitute a series of incidents, but rather a single incident with continuing effects that occurred either upon the applicant's retirement or his subsequent remarriage.

As the application was filed more than a year after these events and the applicant failed to establish a good faith reason for the delay, the application was dismissed as untimely.

The applicant filed a human rights application alleging that the survivorship benefit provisions of the Ontario Teachers' Pension Plan discriminate on the basis of sex and marital status.

The respondent Board sought early dismissal of this and 82 other similar applications for delay.

The applicant brought a Request for an Order During Proceedings asking that the application be held in abeyance pending the Tribunal's determination of a lead case on the issue of delay.

The respondents did not object.

The Tribunal ordered the application held in abeyance pending the determination of the lead case.

The applicant, a retired teacher, alleged that the pensioner re-employment provisions of the Ontario Teachers' Pension Plan discriminated against him on the basis of age.

The provisions limited the number of days retired teachers could work as occasional teachers without affecting their pension benefits.

The Tribunal held a summary hearing and dismissed the application, finding that any differential treatment was based on employment status (being a pensioner) rather than age, and employment status is not a protected ground under the Human Rights Code.

The Court of Appeal issued an addendum to correct an error in paragraph 11 of its reasons for judgment released on November 17, 2005.

The court amended the reasons to replace the reference to 'Subordinated Debenture Holders' with 'Senior Debt Holders' in the first two sentences of the paragraph.

In a CCAA restructuring of Stelco Inc., the appellants, representing subordinated debenture holders, sought to be classified as a separate class of creditors for voting purposes on the proposed plan.

They argued their interests conflicted with senior debt holders due to a turnover payment provision requiring them to remit distributions to senior debt holders until the senior debt was paid in full.

The supervising judge dismissed the motion, finding no material distinction in their legal rights vis-à-vis the debtor company.

The Court of Appeal granted leave but dismissed the appeal, affirming that creditor classification under the CCAA is determined by the creditors' legal rights in relation to the debtor company, not their rights as creditors in relation to each other.

In a CCAA proceeding regarding Stelco Inc., the Informal Independent Converts' Committee appealed an order denying them a separate class of creditors.

The Court of Appeal granted leave but dismissed the appeal, finding no legal error or error in principle in the motion judge's conclusion that the appellants lacked a different legal or practical interest from other unsecured creditors vis-à-vis the debtor.

The appellant, an informal committee of senior debenture holders, sought leave to appeal orders made by the supervising judge in a CCAA restructuring.

The orders authorized the debtor company to enter into agreements with stakeholders and a finance provider to facilitate a proposed plan of arrangement.

The appellant argued the judge lacked jurisdiction to make orders that entrenched elements of a plan before creditor approval and that the plan was doomed to fail.

The Court of Appeal dismissed the appeal, holding that the supervising judge had broad jurisdiction under s. 11 of the CCAA to move the restructuring process forward, provided the creditors retained their final right to vote on the plan under s. 6.

The applicants sought a stay of the Court of Appeal's order, which had reversed a supervising judge's decision to remove two directors from the board of a company undergoing CCAA restructuring, pending their application for leave to appeal to the Supreme Court of Canada.

The Court of Appeal first determined it had jurisdiction under s. 65.1(1) of the Supreme Court Act to consider the stay application.

Applying the RJR-MacDonald test, the court found that while there was a serious issue to be tried, the balance of convenience and the interests of justice favoured denying the stay, as granting it would effectively implement the supervising judge's order that the court had already found was made without jurisdiction.

During a CCAA restructuring of Stelco Inc., the board of directors appointed two new directors who were associated with major shareholders.

Employee stakeholders, fearing the new directors would favour shareholder interests over employee interests in the restructuring, successfully applied to the supervising judge to have the directors removed based on a reasonable apprehension of bias.

The Court of Appeal granted leave to appeal and allowed the appeal, holding that the supervising judge lacked inherent jurisdiction or statutory authority under section 11 of the CCAA to remove duly appointed directors.

The Court further held that the administrative law concept of reasonable apprehension of bias does not apply to corporate directors, whose conduct is governed by fiduciary duties and the business judgment rule.

The Ontario Pension Board requested a hearing regarding a proposal by the Superintendent of Financial Services to order the Board to pay Victor Burns his full pension benefits retroactive to his retirement from the Ontario Provincial Police.

Mr. Burns had terminated his employment with the OPP and commenced employment with the Ottawa-Carleton Regional Police Services during a period when police services were being transferred between the two entities.

The Tribunal found that Mr. Burns' new employment was in conjunction with the disposition of police services, meaning section 80(3) of the Pension Benefits Act applied.

Consequently, his employment was deemed not to be terminated, and he was not entitled to commence receiving a pension on the date he ceased employment with the OPP.

The Superintendent's proposal was quashed.

The applicants, former employees of the Ministry of Finance, were transferred to the Ontario Property Assessment Corporation (OPAC) when the Ministry's property assessment functions were transferred.

At the time of the transfer, both applicants were eligible to retire under the 'Factor 80' provisions of their respective pension plans and sought to receive their pension benefits while continuing to work for OPAC.

The Superintendent of Financial Services refused to order the pension plan administrators to pay the benefits, finding that under section 80 of the Pension Benefits Act, the transfer constituted a sale of a business and the applicants' employment was deemed not to have been terminated.

The Financial Services Tribunal affirmed the Superintendent's decision, holding that the applicants could not receive pension benefits without actually terminating their employment with the successor employer.

The applicant union sought a declaration that a deemed sale of a business occurred under section 64.2 of the Labour Relations Act when the Board of Governors of Exhibition Place leased a building to Medieval Times.

Medieval Times subsequently contracted out cleaning services to a non-unionized company, whereas the union had previously cleaned the building for the Board of Governors.

The Ontario Labour Relations Board held that the transaction constituted a deemed sale of a business, finding that the 'premises' encompassed the entirety of Exhibition Place, that the employer had ceased in part to provide services at those premises, and that substantially similar services were subsequently provided under the direction of another employer.

Medieval Times was declared bound by the union's notice to bargain.

The applicant union brought an application alleging a sale of business and seeking a related employer declaration against several corporate respondents.

Despite being served with notice and a Board order to produce documents and adduce evidence, the respondents failed to appear.

The Board relied on the union's evidence, including corporate records and a labour and material payment bond, to find that the respondents were under common control and direction and that a sale of business had occurred.

The Board declared the respondents to be a single employer bound by the provincial collective agreement.

During an application for certification, the employer and objecting employees raised several allegations of impropriety regarding the union's membership evidence and organizing campaign.

The Board refused to entertain the first set of allegations, finding them untimely under Rule 72 and failing to make out a prima facie case.

The Board also refused to hear a second set of allegations because the parties failed to comply with an order to provide specific particulars, including identifying the disputed membership cards.

Finally, the Board denied the employer's request to have a handwriting analyst examine the membership evidence, holding that such access would violate the confidentiality protections under section 111(1) of the Labour Relations Act.

Ultimately, the parties agreed to dismiss the application.

The Electrical Power Systems Construction Association, Ontario Hydro, and Gilbert Steel Limited filed complaints against the Iron Workers Local 721 regarding an alleged unlawful strike arising from the rodmen's refusal to wear belly-hooks.

The union filed a cross-complaint under the Occupational Health and Safety Act, alleging the employer unlawfully penalized the rodmen for refusing unsafe work.

The Ontario Labour Relations Board dismissed the employer's applications, exercising its discretion not to grant relief since the work stoppage had ceased and damages could be pursued through grievance arbitration.

The Board also dismissed the union's health and safety complaint, finding that the rodmen's blanket refusal to wear the belly-hook—even when their assigned work did not require its use—was not based on a reasonable belief that merely wearing the equipment was likely to endanger themselves or others.

In a jurisdictional dispute complaint between the Boilermakers and the Labourers over the demolition of a boiler, the Board convened a hearing to determine the scope of evidence of Area and Employer Practice to be admitted.

The Metropolitan Toronto Demolition Contractors Association Inc. sought status to intervene and requested an adjournment to retain counsel.

The Board denied the adjournment request, noting the Association's prior notice and failure to participate earlier.

On the evidentiary issue, the Board ruled that evidence would be limited to the dismantling of field-erected, steam-generating boilers for industrial application, originally erected using Boilermakers, in an operating environment in Ontario, as this constitutes the 'particular work' under section 91 of the Labour Relations Act.

The applicant union brought an application under section 63 of the Labour Relations Act, alleging that a sale of a business occurred from Dant Industries Limited to One-Vinyl Window Mfrs.

Ltd. through a receiver, Dunwoody Limited.

Dant, a vinyl window manufacturer, went into receivership and its assets were purchased by One-Vinyl, which continued to operate from the same premises, using much of the same equipment and many former Dant employees, to produce a redesigned vinyl window.

The Board found that the transaction constituted a sale of a business within the meaning of section 63, as One-Vinyl acquired a functional economic vehicle rather than merely incidental assets, and there was no substantial change in the character of the business.

The applicant union sought a direction under section 11 of the Labour Relations Act for access to the respondent employer's remote work camp to organize employees.

The employer conceded the Board's jurisdiction to grant access but disputed the terms, specifically opposing access to employee bunk houses.

The Board held that a section 11 direction puts union representatives in the same position as resident employees regarding communication opportunities, and that employees retain the right to deny access to their private rooms.

The Board granted the access direction on terms that included access to the bunk houses, subject to reasonable limitations on the number of representatives, hours of access, and duration of the order.