Ontario Labour Relations Board

[1983] OLRB Rep. October 1672

0349-83-R Lumber and Sawmill Workers' Union, Local 2693 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. James River-Marathon Ltd. Pic River Forest Products Inc. Buchanan Forest Products Limited, Respondents.

BEFORE: George W. Adams, Q.C., Chairman and Board Members I. M. Stamp and C. Ballentine.

APPEARANCES: Laurence C. Arnold for the applicant, E. L. Stringer, Q. C. for the respondent James River-Marathon Ltd.; F 1. W. Bickford for the respondent Pic River Forest Products Inc. and interested party; and J. R. Comuzzi for the respondent Buchanan Forest Products Limited and interested party.

DECISION OF THE BOARD; October 14, 1983

1. This is an application pursuant to section 63 of the Labour Relations Act alleging that James River-Marathon Ltd. is a successor employer to American Can Canada Inc. and subject to a collective bargaining relationship between the applicant trade union Local 2693 and American Can Canada Inc. (hereinafter referred to as "American Can").

2. The most recent collective agreement between American Can and Local 2693 commenced September 1st, 1980 and expired August 31st, 1982. Under Article III entitled 'Recognition — Jurisdiction' the collective agreement provided:

3.01(a) The Company recognizes the Union as the sole collective bargaining agency for all of its employees who are engaged in woods operations on the limits, and on the work sites of the Company. For purposes of this Article, Company employees shall be all those employed in the job classifications set out in the wage schedule attached to and forming part of this Agreement, including those who are employed on job classifications which may be established and become part of the attached wage schedule during the term of this Agreement.

3.01(b) The employees of contractors engaged by the Company on the limits and work sites of the Company shall be considered employees within the terms of this Agreement; save and except the employees of contractors and/or the contractor who are engaged to perform occasional special services not commonly performed by employees covered by the terms of this Agreement, employees of contractors where such contractors are engaged for the purpose of erecting structures and where such a contractor is bound by an agreement with a union or unions affiliated with a central labour body covering such work.

3.0 1(c) The Company and the Union agree that an operator who enters into a third party agreement with the Company and the Ministry of Natural Resources and produces forest products for the Company or any of the negotiating companies, shall have an agreement with the Union covering such operations.

3. This clause figures prominently in the matter. The provision was first agreed on between American Can and Local 2693 in a collective agreement covering the period 1968 to 1970. Evidence was adduced to establish that it is common to almost all "Woodlands Operations" agreements in northern Ontario. The applicant adduced collective agreements to this effect between itself and Great Lakes Forest Products Limited, Kimberley Clark of Canada Limited, Domtar Forest Products, The Ontario Paper Company Limited, Abitibi-Price Inc., E. B. Eddy Forest Products Ltd., and Spruce Falls Power and Paper Company Limited. Prior to the alleged purchase and sale American Can operated a paper mill at Marathon, Ontario and possessed a license from the Minister of Natural Resources with respect to certain extensive timber limits. American Can conducted a woodlands operation with respect to those timber limits and thereby provided wood fibre to its paper mill. It had a collective bargaining relationship with the applicant in regard to the woodlands operations. It also had collective agreements with the United Paperworkers International Union Local 548 for the mill and the Office and Professional Employees International Union and Its Local No. 219 with respect to office employees.

4. James River-Marathon Limited (hereinafter referred to as "JRM") admits that it is the purchaser of the paper mill from American Can. It further admits that it acquired the timber limits. However, it denies that it purchased American Can's woodlands operations. In effect, its position is that the woodlands operations were purchased by Pic River Forest Products Inc. (hereinafter referred to as "Pic River") a wholly owned subsidiary of Buchanan Forest Products Limited (hereinafter referred to as "Buchanan"). The applicant had brought a section 1(4) application against JRM, Pic River and Buchanan. It had also added Pic River and Buchanan as respondents in this matter. However, a settlement of the applications with respect to Pic River and Buchanan was arrived at with Local 2693 entering into a collective agreement with Pic River as one element of that settlement. Local 2693 then proceeded solely against the respondent JRM in this section 63 application. The section 1(4) application was withdrawn against all respondents including JRM. Throughout the history of these matters Pic River has acknowledged and claimed to be the successor of American Can in the woodlands and the only successor.

5. Mr. R. L. Jones, Vice-President of James River Corporation of Virginia, testified that that company had in 1982 purchased the Dixie Northern assets of American Can's parent in the United States. These assets were the paper-making assets of American Can's parent in the United States. It did not at that time purchase the Canadian operations and American Can and its parent continued to look for a purchaser of the Canadian operations until December of 1982. He testified that the Canadian operations were losing approximately $2 million a month and it had been decided to close by the end of 1982. American Can approached James River Corporation of Virginia to determine its interest in acquiring the Canadian concern. After analysis, James River Corporation of Virginia concluded that for the Canadian operations to be viable there had to be a much lower cost of wood fibre. American Can had provided its own wood fibre from its woodlands operations and this was a highly capital intensive or costly method of acquiring such raw material. James River Corporation of Virginia concluded that American Can was really under utilizing its woodlands operations by tying them so closely to its paper mill. Saw logs were being converted into pulp instead of selling them to sawmills and acquiring the residual chips for the pulp mill. James River Corporation of Virginia therefore concluded that it could not go ahead with the acquisition unless a method of obtaining lower cost fibre could be developed. Mr. Jones explained that the concept was to have Buchanan or an affiliate "purchase" the woodlands operations. Buchanan would then operate the woodlands in its own right and to its own account but under the timber limits in the name of JRM and subject to certain conditions aimed at maintaining the license and insuring JRM a source of fibre supply. In other words, there would be a transfer of the timber limits from American Can to JRM but JRM would not actively conduct the woodlands operations. This would be done by Buchanan or an affiliate and Buchanan and JRM would enter into a fibre supply and land management agreement guaranteeing a supply of fibre to JRM. However, American Can wanted to deal with only one buyer.

6. Once it was determined that these various interests could all be accommodated, the scheme of the transactions took the following form. An asset purchase agreement dated March 7th, 1983 was entered into between (1) American Can Company, a New Jersey Corporation and the parent of American Can Canada Inc., (2) American Can Canada Inc., (3) JRM, (4) James River Corporation of Virginia, and (5) Buchanan Forest Products Limited. JRM was described as "the buyer". The consideration flowing from the buyer to American Can and its parent was $5 million in cash and an assumption of approximately $5 million in liabilities for a total purchase price of $10 million. By a shareholders' agreement of March 7th, 1983 James River Corporation of Virginia and Buchanan Forest Products Limited agreed to pur­chase $8 million and $2 million respectively in value of the common shares of JRM. In a document of the same date referred to as the "Fibre Supply and Local Management Agreement", Pic River and Buchanan were given exclusive right to cut on the timber lands in return for guaranteeing JRM access to wood fibre at a reasonable price. Buchanan agreed to take the necessary steps to maintain the license and to be paid his related out-of-pocket expenses in this regard together with a management fee. Certain rights of first refusal to pulpwood and pulp chips was also granted to JRM. Subsequently, by assignment agreement dated April 22nd, 1983 between JRM and Pic River, JRM transferred and assigned to Pic River its contractual rights pursuant to the asset purchase agreement to purchase from American Can and to parent the woodlands equipment essential to carrying on the woodlands operation. JRM also transferred and assigned to Pic River its contractual rights pursuant to the asset agreement to acquire American Can's rights in the leases to certain leased equipment dedicated to the conduct of the woodlands operations and Pic River assumed all liabilities and obligations with respect to these leases. Mr. Jones testified that Pic River did not pay JRM any cash for the assignment of these rights and liabilities and testified that the value of the owned equipment was close to the liabilities existing pursuant to the leased equipment. American Can by As­signment and Bill of Sale dated April 22nd, 1983 transferred to Pic River "right, title and interest,..." in and to all of the assets pertaining to the woodlands operations. In turn, Pic River executed a "instrument of assumption" dated April 26th, 1983 and assumed and agreed to pay and fully discharge all the assumed obligations with respect to these assets and liabilities. By memorandum of agreement dated the same date, April 22nd, 1983, JRM and Pic River entered into what is referred to as a third party agreement whereby JRM granted to Pic River the right to cut and remove timber from the area subject to its timber limits and Pic River agreed to comply with and honour all the obligations to the Ministry of Natural Re­sources to which JRM was bound by virtue of its license of the timber limits. Pursuant to this agreement, JRM is to have the right of first refusal exercisable annually on all pulpwood produced by Pic River in the area. Mr. Jones testified that it planned to obtain 80% of its wood fibre in the form of wood chips pursuant to contracts negotiated by Buchanan on JRM's behalf with sawmills in the area. The other 20% of its wood fibre would come from hardwood and which might come from the timber cut by Pic River on the timber limits. He testified that there needed to be no direct relationship between the wood fibre and the timber cut by Pic River and sold to the various sawmills in the area. JRM, therefore, did not expect to have to rely on its right of first refusal on all pulpwood produced by Pic River in the woodlands area and to the chips derived from the sale of saw logs.

7. Buchanan Forest Products Limited (described as Buchanan) is the corporate vehicle of Ken Buchanan who operates a number of mills and cutting operations in Northern Ontario and employs approximately 2,000 employees. The Board was advised that Buchanan had collective bargaining relationships with the applicant. Mr. Jones testified that JRM had no expertise in conducting woodlands operations and that the willingness of Buchanan and its affiliate to acquire such operations was absolutely vital to the overall transaction being proceeded with. JRM has acknowledged that it is the successor employer under the contracts with the paperworkers and the OPEIU. All of the management personnel and all of the employees of Pic River are former employees of American Can. Only two management people of American Can formerly working in its woodlands operations were hired by JRM. They are an industrial engineer and a purchase wood superintendent. Pursuant to the asset purchase agreement JRM assumed the liabilities under a voluntary pension plan pertaining to the woodlands operation but it advised the Board that it intends to discontinue this plan. Mr. Jones testified that there is no day to day direction of the woodlands operations by anyone associated with JRM. This was also the evidence of William Goodfellow, President of Pic River. Mr. Goodfellow, however, acknowledged that Mr. Buchanan was the sole shareholder and director of Pic River and that Pic River's line of credit at present is none existent. Accordingly, Pic River is being carried by Buchanan Forest Products Limited until it becomes a self-sustaining operation. All of the woodlands expertise formerly possessed by American Can through its senior employees is now possessed by Pic River.

8. The principal provisions of these interrelated transactions described above are worthy of a more detailed review.

Asset Purchase Agreement, March 7th, 1983

9. This agreement begins by noting that American Can and its parent desire to sell to the buyer those assets relating to the business of the Marathon Pulp Division of American Can which business consists "of the operation of the pulp mill at Marathon, Ontario, Canada and associated facilities (the "Marathon Mill"), the marketing and sale of pulp produced at the Marathon Mill and the related wood supply system..." (emphasis added). It provides that James River Corporation of Virginia and Buchanan Forest Products Limited will be the only stockholders in the buyer, JRM. Article 1.1 provides for the transfer of all assets, properties and rights relating to the Marathon operations including "all rights, to the extent transferable, with respect to the Crown lands; and all purchased wood or fibre supply agreements and related rights of refusal." Article 2 provides for the assumption of various liabilities by the buyer including all liabilities and obligations under all contracts, licenses, leases and permits and liabilities associated with three pension plans. Article 4 deals more specifically with the employee benefit plans and particularly the pension plan for employees of American Can and Local 2693. Article 11.2 provides that American Can would conduct negotiations with respect to the woodlands blue collar workers' union in respect of a renewal collective agreement governing the woodlands obligations but that "subject to the consent of the union bargaining committee a representative of the buyer would be allowed to attend such meetings and any memorandum of agreement entered into in respect thereof would be subject to the ratification by the buyer". Article 12.8 makes the agreement subject to the buyer receiving approvals from the Government of Ontario respecting "the grant of transfer to the buyer of cutting rights or other rights in respect of the Crown lands...". Article 17.2 of the agreement provides:

This agreement shall be binding upon, inure to the benefit of, and be enforceable by, the respective successors and assigns of the parties hereto; provided, however, that neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties hereto, except that the Buyer may transfer the right to receive any of the Assets or the obligation to assume any of the Assumed Obligations to any person which is an Affiliate of the Buyer, James River or BFPL, including, but not limited to, a pulp sales subsidiary of the Buyer; provided that the Buyer shall remain liable to pay any amount under Article V hereof which is not paid by such transferee and to discharge any Assumed Obligations not discharged by such transferee.

Fibre Supply and Land Management Agreement

10. This Agreement dated March 7th, 1983 is between JRM and Buchanan Forest Products Limited (referred to as BFPL in the above quotation). The preamble notes that Buchanan was agreed "to act as woodlands manager for operations on JR-Marathon's timber limits...". By Article 2 Buchanan undertakes to use its best efforts to maintain a wood supply for the mill with a view to reducing so far as practicable the overall wood fibre costs of the mill. Buchanan is to negotiate with chip suppliers for suitable contracts consistent with the long term goals of the mill but subject always to the approval of JRM who shall enter into and execute on its own behalf any resulting agreements. To the extent JRM is unable to acquire chips for use in the mill, Buchanan agrees to use its best efforts to provide JRM sufficient round wood, and such round wood may be supplied by Pic River pursuant to a third party agreement with JRM. Disputes over the price of such round wood are to be referred to arbitration. By Article 3 Buchanan agrees, "as agent of JRM", to take such actions as may be necessary to maintain the Crown license. Buchanan agrees to abide by the terms of the Crown license. Buchanan also agrees to do a number of other things such as the building of roads and the maintenance of roads in order to maintain the rights of JRM in and on the licensed area. JRM is to compensate Buchanan for its out-of-pocket expenses in this respect. JRM shall grant to Buchanan and Pic River full rights to enter upon and use any and all licenses of occupation and facilities which may reasonably be required in relation to their operations. By Article 3.4 JRM agrees to transfer or cause to be transferred to Buchanan or Pic River, as Buchanan may chose, all woodlands equipment subject to the earlier agreement of purchase and sale. The Agreement goes on to provide in Article 3.4:

In the event this Agreement is terminated as a result of default by BFPL or Pic River, as the case may be, BFPL or Pic River shall, at JR-Marathon' s request, return all of such owned equipment still held by them and all of such leased equipment still maintained by them to JR-Marathon subject to JR-Marathon assuming any unpaid obligations on such leases....

11. By Article 3.5 Buchanan agrees that "since JR-Marathon is causing its woodlands related equipment to be transferred to BFPL, BFPL will provide such maintenance, construction, roadbuilding or other services as may be requested by JR-Marathon on the lands within the licensed area. JR-Marathon shall reimburse BFPL for all of its out-of-pocket costs incurred in connection with providing such services". By Article 3.6 JRM agrees to pay Buchanan on account of management fees for indirect corporation overhead an annual fee of 1 % of the total annual costs to JRM of its wood fibre supply. By Article 4 Pic River and Buchanan are granted the exclusive right to cut and remove quantities of timber from the licensed area. The same paragraph notes that third party agreements will be entered into by the parties having a two year duration and shall be renewable from time to time over a ten year period. Article 5 provides for the term of the fibre supply agreement which is ten years unless notice is given in writing two years before the expiration date. If it is not terminated, it automatically renews for another ten years. The agreement also terminates in the event of default.

Shareholders' Agreement, March 7th, 1983

12. By this Agreement Buchanan obtains a one-fifth interest in JRM. There are restrictions on the disposition of the shares without the written consent of the other. There is also a right of first refusal with respect to the disposition of the shares. Paragraph 10 also provides that in the event that Buchanan defaults under the woods supply agreement James River of Virginia shall have the right to buy all of Buchanan's shares in JRM. The same right is given to James River of Virginia in the event of Ken Buchanan's death. There is also the right to inspect Pic River books relating to expenditures of Pic River for which it seeks reimbursement from IRM.

Assignment Agreement, dated April 22nd, 1983

13. By this Agreement JRM transferred and assigned to Pic River its contractual rights pursuant to the Asset Purchase Agreement to purchase the American Can woodlands equipment and it further assigned its contractual rights pursuant to the same agreement to the leases of such equipment. Pic River assumed the rights and liabilities. This assignment did not relieve JRM of its obligations under the Asset Purchase Agreement to discharge any assumed obligations relating to the leases set forth which are not discharged by Pic River. Pic River also consented to be bound by the provisions of Article 3.4 of the Fibre Agreement permitting JRM to reclaim the equipment in the event of default. It is understood that Pie River "will have the right to sell all or any part of the woodlands equipment to BFPL provided BFPL shall, in any such event, assume all obligations with respect thereto and be bound by the terms of the Fibre Agreement relating to such equipment as if it were the original transferee from

ACCI."

The Third Party Agreement, dated April 22nd, 1983

14. This Agreement is between JRM and Pie River. It grants the right to Pie River to cut and remove wood in the annual cut, subject to approval issued by the Ministry of Natural Resources. Pie River agrees to prepare and submit to the Ministry of Natural Resources various plans subject to review by JRM prior to filing. Pie River also agrees to conduct itself in a manner in order that the license to the timber limits be maintained. Paragraph 7 provides:

JR-Marathon shall have the right of first refusal exercisable annually on all pulpwood produced by the company in the area. Any contract for the sale of saw logs produced by the company in the area shall contain a right of first refusal at its beginning and exercisable annually thereafter by JR-Marathon in respect of any chips derived from such saw logs.

15. The license to cut Crown timber transferred from American Can to JRM was put in evidence. It imposes a variety of obligations on the license holder and requires compliance with the Crown Timber Act, and its regulations. It is clear from the provisions of the license and related documentation that the Ministry of Natural Resources expects and requires the active cutting and management of the timber limits.

16. At the time of the alleged sale, American Can was engaged in bargaining with the applicant for a renewal of the collective agreement which expired August 31st, 1982. Section 63(1) and (3) of the Labour Relations Act provide:

63. — (1) In this section,

(a) "business" includes a part or parts thereof;

(b) "sells" includes leases, transfers and any other manner of disposition, and "sold" and "sale" have corresponding meanings.

(3) Where an employer on behalf of whose employees a trade union or council of trade unions, as the case may be, has been certified as bargaining agent or has given or is entitled to give notice under section 14 or 53, sells his business, the trade union, or council of trade unions continues, until the Board otherwise declares, to be the bargaining agent for the employees of the person to whom the business was sold in the like bargaining unit in that business, and the trade union or council of trade unions is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement or the renewal, with or without modifications, of the agreement then in operation and such notice has the same effect as a no­tice under section 14 or 53, as the case requires.

17. The applicant and Pic River have now entered into a collective bargaining agreement for Pic River employees working in the woodlands. Pic River, by virtue of the fibre supply and land management agreement, has the exclusive right to cut and remove quantities of timber from the licensed areas. Pie River acquired all of the equipment owned or leased by American Can to operate the woodlands and the acquisition of this equipment was facilitated by the assignment of rights acquired by JRM from American Can as a result of the asset purchase agreement of March 7th, 1983. Pie River is a wholly owned subsidiary of Buchanan and Buchanan contributed $2 million to JRM. All of Pie River's employees are former American Can employees including its management.

18. Having regard to all of the evidence, we are of the opinion that JRM by its agreement with American Can on March 7th, 1983 acquired a business which consisted of the operation of the Pulp Mill and the related wood supply system, meaning the woodlands operation. The agreement of March 7th makes this acquisition of everything American Can owned and operated abundantly clear. Central to the woodlands operation was the license and the entire transaction was made subject to the approval by government of the transfer of this license. However, it is clear from Mr. Jones' evidence and from the content of the March 7th agreement with American Can (particularly Article 17.2) that JRM never intended to operate the woodlands operation itself. Thus, while retaining the license to the timber limits, JRM transferred its rights to the woodlands operations equipment to Pie River and at the same time executed a third party agreement pursuant to the exclusive rights accorded to Pie River by the fibre supply and land management agreement. At paragraph 37 of Metropolitan Parking Inc., [1979] OLRB Rep. Dec. 1193 at p. 1210 the Board made the following observation which is relevant in the case at hand:

The present case involves a form of subcontracting, and subcontracting arrangements always involve the transfer of work. Work or services performed by A's employees within A's own organization are "contracted out'' to B, and B uses his own managerial skills, plant, equipment and "know how" to supply to A, for a price, the product, services, facilities or components formerly produced by A's employees. A, therefore, is contracting for the use of B's economic organization in lieu of his own. A is generating a particular demand, or market, for B's product, and it is implicit in the arrangement that, thereafter, the two businesses will remain in a kind symbiotic relationship, bound together by close economic ties. The continuity of the work, and the preservation of a close economic relationship, between the two parties is implicit in subcontracting and does not, in itself, establish a transfer of all, or part, of a business. If it is clear on the evidence, however, that B is unable to fulfill A's requirements with his existing equipment or organization, and received from A a transfer of capital, assets, equipment, managerial skills, employees or know how, then the transaction no longer looks like a simple contracting out of work. A may not be making use of B's economic organization, rather A may be transferring part of his economic organization to B (and recall that section 55 is triggered by the transfer of "part of a business") or merely permitting B to make use of his (A's) organization while retaining control and direction of the related economic activity. Of course, it is to be expected that when A phases out part of his operation there may be certain equipment or assets which are now surplus and which can be disposed of on the market. These assets may, as a matter of convenience, be purchased by B. None of these factors unequivocably demonstrates or foreclose the application of section 55 (or section 1(4). If, however, "but for" the transfer of such assets, licences, know how or property interests from A, B would be unable to fulfill the contract, then it is easier to infer a transfer of part of A's business —albeit a part which A no longer wishes to operate itself.

While we are satisfied that JRM acquired the Pulp Mill and woodlands businesses, we are also satisfied that JRM in turn transferred or leased the woodlands business to Pie River in consideration for monies received from Buchanan and for Pie River's assumption of the liabilities arising under the leases of equipment together with certain other commitments and obligations i.e. the rights of first refusal etc. It is to be noted that section 63(1) acknowledges that a business can be sold in part and that a sale includes "leases, tranfers and any other manner of disposition...". This arrangement was unlike a classic subcontract in that Buchanan was already in the woodlands business and Pie River (Buchanan's designate) is not operating these lands primarily for the benefit of JRM. JRM has been assured of wood fibre from other sources and Pie River is operating the woodlands with a view to external markets. The exclusiveness of the contract; the transfer of the equipment; and the transfer of employees and management all point to the transfer of a business and against the finding of a mere subcontract. We point out that there is no section 1(4) application before the Board by which we might assess the significance of the close commercial inter-relationship of JRM and Buchanan. This is not a triumph of form over substance. JRM is using the license to ensure it a long term source of wood fibre but in the short run has determined to obtain its wood fibre from other sources (presumably at a lower cost) in return for allowing Pie River to operate the woodlands for its own benefit. Indeed, any wood fibre coming from the woodlands will be paid for by JRM at market value.

19. This is not a case like Prudent Investments Inc., 11981] OLRB Rep. Nov. 1611. There the predecessor had truly subcontracted a part of its business, the cleaning of buildings, prior to the sale of the buildings being cleaned. The Board held that an integral aspect of running an office building was the provision of cleaning services either by employing one's own employees to do the work or by retaining an outside contractor to do it. Thus, the Board held that the purchaser of the buildings was also in the business of cleaning those buildings and was subject to the union's bargaining rights should it in the future directly employ its own cleaning staff. An integral part of operating a pulp and paper mill is not, by JRM's business strategy, the running of a woodlands business provided that sufficient wood fibre can be obtained from other sources. This is the point of the fibre supply agreement. The owning of a license to the timber limits does guard against a mill being "held to ransom" by others who would otherwise control access to wood fibre.

20. In the facts at hand, the applicant union did not take the position that Pie River was a mere subcontractor unaffected by section 63. Indeed, this section 63 application insofar as it was brought against Pie River was settled by the union entering into a collective agreement with Pie River. It is not, as well, a subcontract within the meaning of Metropolitan Parking Inc., supra, having regard to Article 17.2 of the asset purchase agreement and to the relationship of Buchanan to JRM and Pie River. Given these various relationships and having regard to the third party agreement, the fibre supply agreement, and the transfer of the equipment and employees, the commercial transaction between JRM and Pie River more closely resembles the transfer of a business from a labour relations viewpoint.

21. In coming to this conclusion we have not ignored the fact that JRM did not dispose of the woodlands operations irrevocably. It retains the license to the timber limits and a right of first refusal to pulp wood produced by Pie River in the area. There is also a provision for the reversion of the woodlands equipment to JRM in the event of default by Buchanan or Pie River. We further note that the Crown Timber Act places affirmative obligations on the licensee which Buchanan and Pie River will undertake as the "agents" of JRM and at the cost of JRM (and presumably including the 1 % management fee). The ongoing statutory responsibilities of JRM to maintain the license and the fact that the Crown Timber Act very much ties the issuance of licenses to the operation or supply of a mill have contributed to our finding in paragraph 18 that JRM initially acquired both the mill and the woodlands operations. In coming to this finding we reject the submission that JRM was simply a convenient intermediary to a transaction between American Can and Pie River. Nevertheless, we have held that JRM went on (simultaneously) to transfer the woodlands operations to Pic River the way a landlord might transfer his immediate right of occupancy to a tenant. We decline to hold that JRM's continuing control of the license leaves it retaining a part of a business amenable to the declaration sought, particularly without the aid of a section 1(4) application. However, it is our view that we need not decide at this time whether section 63 will have application on the expiration of JRM's arrangement with Pie River or should JRM either begin to operate the woodlands with its own employees or grant a right of access to the woodlands area to other contractors. In other words, it is premature to determine the application, if at all, of the various approaches taken by labour boards in John Lester Drugs Ltd., [1982] OLRB Rep. June 886; City of Peterborough, [1979] OLRB Rep Feb. 133; Taylor Ford Sales Ltd., [1981] I Can. LRBR 138 (N.B.); Interior Diesel and Equipment Ltd., [1980] 3 Can.LRBR 563 (B.C.); and Metropolitan Parking Inc., supra.

22. This application is dismissed.