Court File and Parties

COURT FILE NO.: CV-15-111129-00CL DATE: 20160413 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: ROMSPEN INVESTMENT CORPORATION, Applicant AND: COURTICE AUTO WRECKERS LIMITED, NORTHWOOD RECYCLYING & ENERGY LIMITED, 800619 ONTARIO LIMITED, POWER GRO SYSTEMS INC., COURTICE ENERGY CORP., LES REBUTS DE PATES ET PAPIERS DE L’OUTAOUAIS LTEE. and LES AMENAGEMENTS GUIRARD INC., Respondents

BEFORE: Mr. Justice H.J. Wilton-Siegel

COUNSEL: James Harnum, for the Applicant, the International Union of Operating Engineers, Local 793 Lisa Corne and David Preger, for the Respondent Receiver, Rosen Goldberg Inc.

HEARD: February 10, 2016

Endorsement

[1] On this motion, the applicant, Local 793 of the International Union of Operating Engineers (the “Union”), seeks an order lifting the stay of proceedings that currently operates pursuant to an order, dated October 18, 2015, of Penny J. appointing Rosen Goldberg Inc. (the “Receiver”) the receiver of, among other corporations, Courtice Auto Wreckers Limited (the “Debtor”) (the “Receivership Order”). The Union seeks to lift the stay to proceed with a certification application before the Ontario Labour Relations Board (the “OLRB”). The Union also seeks an order lifting the stay to proceed with a related unfair labour practice complaint and a companion order granting leave of the Court to proceed against the Receiver in respect of such complaint.

Background

[2] The Union is a trade union within the meaning of sections 1(1) and 126 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the “LRA”).

[3] The Debtor is a corporation incorporated under the laws of Ontario. It is one of a number of corporations associated with Harvey Ambrose (“Ambrose”) that are the subject of the Receivership Order (collectively, the “Ambrose Group”).

[4] The Receiver was appointed the receiver over the assets of the Ambrose Group, including the assets of the Debtor, pursuant to the Receivership Order. The Receivership Order was granted pursuant to section 243(1) of the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”), as well as section 101 of the Courts of Justice Act, R.S.O. 1990, c. C.43.

[5] As set out below, paragraph 7 of the Receivership Order contains a stay of proceedings against the Receiver, paragraph 8 contains a stay of proceedings against the Debtor or the property of the Debtor, and paragraph 9 contains a stay of proceedings respecting the exercise of rights or remedies against the Debtor, the Debtor’s property and the Receiver.

[6] The Union represents a bargaining unit of mechanics employed by the Debtor at its facility at 800 Colonel Sam Drive in Oshawa, Ontario.

[7] In addition to its operations at this location, the Debtor also carries on business under the name “Ontario Disposal” at two properties located at 5052 and 5165 Harmony Road, Oshawa, Ontario. These two properties are adjacent to each other. The business of the Debtor at these properties involves processing yard waste that is delivered pursuant to waste removal contracts and management of a landfill site on the property.

[8] The Union delivered a certification application to the Debtor and the OLRB on December 9, 2015 (the “Certification Application”) in respect of a bargaining unit comprised of six employees at the Harmony Road location of the Debtor. Two of the six employees included in the proposed bargaining unit were long-term employees at this location. The remaining four employees had recently been transferred to that site from other companies within the Ambrose Group.

[9] On December 11, 2015, the four recently transferred employees were terminated by the Receiver. The Union says that three replacement workers were subsequently brought in by the Receiver from another corporation in the Ambrose Group to perform the work previously performed by the four terminated employees and, as of December 23, 2015, at least one more employee had been brought in to work at the Ontario Disposal location. The Receiver disputes these allegations.

[10] The Union filed an unfair labour practice complaint, dated December 18, 2015, with the OLRB alleging that these actions of the Receiver constituted an unfair labour practice under the LRA (the “ULP Complaint”). The Union believes that the terminations on December 11, 2015 were at least in part the result of anti-union sentiment by the Receiver and/or the individual engaged by the Receiver to act as the general manager of the Debtor during the receivership. It bases this belief on the timing of the terminations and the use of replacement workers.

The Receivership Order

[11] The following provisions of the Receivership Order are relevant for this motion.

[12] Paragraph 3 of the Receivership Order granted the receiver the powers to manage, operate and carry on the business of the “Debtor” (being the corporations subject to the Receivership Order, including the Debtor) and to sell, convey, transfer, lease or assign the property of the Debtor or any part or parts thereof out of the ordinary course of business (subject to approval of any sales above a specified threshold).

[13] Paragraph 13 of the Receivership Order provided, among other things, that all employees of the Debtor shall remain the employees of the Debtor until such time as the Receiver, on the Debtor’s behalf, may terminate the employment of such employees.

[14] Paragraph 7 provides that no proceeding or enforcement process in any court or tribunal (each, herein and therein referred to as a “Proceeding”) shall be commenced or continued against the Receiver, except with the written consent of the Receiver or with leave of the court.

[15] Paragraph 8 provides that:

… no Proceeding against or in respect of the Debtors or the Property (which is defined to be all of the assets, undertakings and properties of the Debtors acquired for, or used in relation to a business carried on by the Debtors, including all proceeds thereof except certain specified real estate properties) shall be commenced or continued except with the written consent of the Receiver or with leave of this Court and any and all Proceedings currently under way against or in respect of the Debtors or the Property are hereby stayed and suspended pending further Order of this Court….

[16] Paragraph 9 provides that:

… all rights and remedies against the Debtors, the Receiver, or affecting the Property, are hereby stayed and suspended except with the written consent of the Receiver or leave of this Court provided however that … nothing in this paragraph shall … (ii) exempt the Receiver or the Debtors from compliance with statutory or regulatory provisions relating to health, safety or the environment…

The OLRB Decision

[17] By a decision dated December 14, 2015 (the “OLRB Decision”), the OLRB stayed the Certification Application holding that the stay imposed by the Receivership Order applied in the circumstances. In its decision, the OLRB made the following comments:

5. It appears to the Board on an examination of only the information provided in the application and the information and membership evidence filed by the applicant (see section 8(3) of the Act), that not less than 40% of the individuals in the bargaining unit proposed in the application for certification were members of the union at the time the application was made.
6. In the normal course this would be sufficient for the Board to order a vote. While a vote and an application for certification do not affect the priority of claims against a Debtor, in this case the Order of the Court appears to have the effect of staying this application. It may be that the Court did not intend to stay a procedural decision of this Board such as the holding of a vote, however, the appropriate course is to give effect to the Order on its face…
7. Having said the foregoing, the scheme of the act is premised on quick votes: see for example section 8. If the applicant seeks leave of the Court to proceed, the Board hopes that the Court would at least facilitate a quick vote that could be then sealed and not counted, pending further consideration of whether to grant leave to the applicant for this application to proceed further. By proceeding in this fashion the Court would ensure that in the event this application does proceed, the true wishes of the employees are tested and recorded in a timely manner and can be counted at a later date… If the vote is unduly delayed the validity of the vote as a reflection of employee wishes may be open to question.

Applicable Law

Lifting a Stay of Proceedings in a Receivership Order

[18] The considerations to be taken into account by a court with respect to the lifting of a stay of proceedings under a receivership order have been guided by the principles to be applied in regard to a lifting of the stay under section 69.4 of the BIA. These circumstances were addressed by the Court of Appeal in Ma v. Toronto-Dominion Bank, [2001] O.J. No. 1189 (C.A.) at paras. 2 and 3 as follows:

In our view there is no requirement to establish a prima facie case and no inconsistency in the case law. We do not agree that Bowles v. Barber imposes a prima facie case requirement. More importantly, that requirement is not imposed by the statute. Under s. 69.4 the court may make a declaration lifting the automatic stay if it is satisfied (a) that the creditor is “likely to be materially prejudiced by [its] continued operation” or (b) “that it is equitable on other grounds to make such a declaration.” The approach to be taken on s. 69.4 application was considered by Adams J. in Re Francisco (1995), 32 C.B.R. (3d) 29 at 29-30 (Ont. Gen. Div.), a decision affirmed by this court (1996), 40 C.B.R. (3d) 77 (Ont. C.A.):

In considering an application for leave, the function of a bankruptcy court is not to inquire into the merits of the action sought to be commenced or continued. Instead, the role is one of ensuring that sound reasons, consistent with the scheme of the Bankruptcy and Insolvency Act, R.S.C. 1985, c.B-3, exist for relieving against the otherwise automatic stay of proceedings.

As this passage makes clear, lifting the automatic stay is far from a routine matter. There is an onus on the applicant to establish a basis for the order within the meaning of s. 69.4. As stated in Re Francisco, the role of the court is to ensure that there are "sound reasons, consistent with the scheme of the Bankruptcy and Insolvency Act" to relieve against the automatic stay. While the test is not whether there is a prima facie case, that does not, in our view, preclude any consideration of the merits of the proposed action where relevant to the issue of whether there are "sound reasons" for lifting the stay. For example, if it were apparent that the proposed action had little prospect of success, it would be difficult to find that there were sound reasons for lifting the stay.

[19] It is therefore understood that, in its consideration of whether sound reasons exist that are consistent with the purpose of the receivership to justify lifting the stay, the Court should look at the totality of the circumstances. This necessarily requires a consideration of the interest of the party looking to lift the stay relative to the interests of the remaining creditors.

Commencing an Action Against a Receiver

[20] With respect to commencing any action against the Receiver, including the ULP Complaint, section 215 of the BIA provides that, 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, the BIA.

[21] The principles regarding the granting of leave under section 215 to commence an action against a court-appointed receiver or trustee were addressed in Mancini (Trustee of) v. Falconi, [1989] O.J. No. 1407 (S.C.) and summarized in GMAC Commercial Credit Corp. – Canada v. T.C.T. Logistics Inc., 2006 SCC 35, [2006] 2 S.C.R. 123, at para. 57 as follows:

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.
3. The court is not required to make a final assessment of the merits of the claim before granting leave.

In short, the Supreme Court confirmed the requirement to disclose a prima facie case. However, the focus of the investigation of a court is on whether the facts before the court disclose a cause of action, not on a determination of the merits of the proposed action.

[22] I note that the same principles that apply in respect of the granting of leave under section 215 of the BIA also apply to lifting a stay of proceedings under a receivership order to proceed against a receiver.

The Issues

[23] The Union’s motion raises two separate, but related, issues. The Union seeks an order lifting the stay of proceedings under paragraphs 8 and 9 of the Receivership Order to allow it to proceed with the Certification Application against the Debtor. In addition, as the ULP Complaint will also require an inquiry into the conduct of the Receiver, the Union seeks an order lifting the stay of proceedings under paragraph 7 of the Receivership Order, as well as an order granting leave to proceed against the Receiver under section 215 of the BIA, in respect of the ULP Complaint.

Determination of the Issues on this Motion

[24] I propose first to address certain submissions of the parties and then to set out my analysis and conclusions regarding the issues on this motion.

Submissions of the Parties

[25] The Receiver relies on the decision in Hawkair Aviation Services Ltd. (Re), 2006 BCSC 669, [2006] B.C.J. No. 938, which it says raised the same issue in the context of proceedings under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (the “CCAA”). In that case, the motion judge concluded that the stay of proceedings should remain in place with respect to the union’s certification application pending completion of a plan of arrangement under the CCAA.

[26] The circumstances in Hawkair Aviation differ from the present circumstances in two significant respects. First, there was no allegation of an unfair labour practice involving the termination of employees. Second, it was anticipated that the debtor company would continue to operate after the completion of the plan of arrangement under the CCAA. In the present circumstances, however, the assets of the Debtor will be sold to one or more third parties and the Debtor will cease to carry on business. If the Certification Application is stayed until the sale of the assets of Ontario Disposal is completed, it will be difficult to pursue the Application against the purchaser of the assets given the termination of four members of the proposed bargaining unit, and perhaps all six if the other two employees are not hired by the purchaser. Further, the ULP Complaint will be moot after such sale as there would be no ability to reinstate the terminated employees if the Union were successful.

[27] The Union says that the financial results of the Ambrose Group, the relationship between the Debtor and the principal creditor who sought the Receivership Order, being Romspen Corporation, and the relative significance of the issues argue in favour of lifting the stay in respect of both the Certification Application and the ULP Complaint. I do not think that any of these arguments is sufficient to lift the stay for the following reasons.

[28] First, the fact that the receivership has been cash flow positive for the past three months does not mean that the Ambrose Group is solvent. It is a reflection only of the fact that the Debtor has ceased paying interest on its outstanding loans.

[29] Second, the fact that Romspen Corporation provided for a profit participation in its loan agreement does not make that corporation a shareholder in the Ambrose Group companies, let alone an employer for the purpose of labour legislation. More importantly, the Receiver is a court-appointed receiver. It is an officer of the court, not an agent of any creditor.

[30] Third, it is not possible to conclude on the evidence that proceedings before the Board regarding the Certification Application and the ULP Complaint will involve minimal time and expense of the Receiver. There is a real cost to the creditors that would result. However, the more important consequence is that a purchaser of the assets of the Ontario Disposal business will take such assets on a fundamentally different basis than if these proceedings were stayed. As discussed further below, this could have consequences in terms of the proceeds of sale of the assets of Ontario Disposal.

[31] The Union also submits, on a more general level, that the Court has no role in matters of labour legislation and should therefore remit both the Certification Application and the ULP Complaint to the OLRB.

[32] I agree with the Union that the Board has the exclusive jurisdiction to determine the Certification Application and the ULP Complaint. This principle has been set out by the Supreme Court in T.C.T. Logistics. In that decision, the Supreme Court addressed the need for courts to respect provincially regulated civil rights including, in particular in that case, collective bargaining rights (at paras. 50-51):

Trustees, receivers and the specialized courts by which they are supervised, are entitled to a measure of deference consistent with their undisputed expertise in the effective management of a bankruptcy. Flexibility is required to cure the problems in any particular bankruptcy. But guarding that flexibility with boiler plate immunizations that inoculate against the assertion of rights is beyond the therapeutic reach of the Bankruptcy and Insolvency Act.

If the s. 47 net were interpreted widely enough to permit interference with all rights which, though protected by law, represent an inconvenience to the bankruptcy process, it could be used to extinguish all employment rights if the bankruptcy court thinks it “advisable” under s. 47(2)(c). Explicit language would be required before such a sweeping power could be attached to s. 47 in the face of the preservation of provincially created civil rights in s. 72. As Major J. stated in Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3:

. . . explicit statutory language is required to divest persons of rights they otherwise enjoy at law. . . . [S]o long as the doctrine of paramountcy is not triggered, federally regulated bankruptcy and insolvency proceedings cannot be used to subvert provincially regulated property and civil rights. [para. 43]

The language of s. 47(2) falls well short of this standard. The bankruptcy court can undoubtedly mandate employment-related conduct by the receiver, but as s. 47(2) of the Bankruptcy and Insolvency Act is presently worded, the court cannot, on its own, abrogate the right to seek relief at the labour board.

[33] However, as discussed below, I do not believe that the issue on this motion is resolved as a matter of the respective jurisdictions of the Board and this Court.

Analysis and Conclusions

[34] While it is possible to separate the two proceedings as a legal matter, the ULP Complaint and the Certification Application are inseparable from a practical perspective as the Union suggests. Accordingly, there are two very different scenarios presented upon this motion – either lift the stay and allow the Certification Application and the ULP Complaint to proceed before the OLRB, with potential consequences for the expenses of the receivership and the sale proceeds of the Debtor’s business, or maintain the stay with the consequence that the Certification Allegation and the ULP Complaint are effectively rendered moot, even if the stay is lifted after the sale of the assets of the business.

[35] The following analysis of the issues on this motion addresses first the current status of the Certification Application and the ULP Complaint and then the relief sought regarding the Certification Application and the ULP Complaint on a nunc pro tunc basis.

The Status of the Certification Application and the ULP Complaint

[36] The starting point for the analysis in the present circumstances is the status of the Certification Application. In this case, the Union chose to deliver and file the Certification Application without prior leave of the Court. I wish to make it clear that I make no determination regarding whether such action was intentional or inadvertent and that, in any event, the Union’s state of mind is not a consideration in the determination below. However, the consequence of the Union’s action is that the Certification Application was commenced in contravention of the provisions of paragraphs 8 and 9 of the Receivership Order. I note as well that the OLRB acknowledged this in the OLRB Decision (at para. 6).

[37] In these circumstances, I think that the Certification Application must be treated at present as a nullity, that is, as null and void and of no legal effect. I note that Burnyeat J. reached a similar conclusion regarding the status of the certification application that was commenced in similar circumstances in Hawkair Aviation at para. 36. Insofar as the law of British Columbia and Ontario differ in this area, the difference relates to the authority of the Court to grant relief on a nunc pro tunc basis, which is addressed below, rather than to the effect of commencement of an application in contravention of an order of the court.

[38] This finding has an important implication for the motion to lift the stay regarding the ULP Complaint.

[39] As described above, the commencement of the Certification Application is a fundamental element of the factual basis for the ULP Complaint. In this particular case, there can be no ULP Complaint independent of the prior commencement of the Certification Application. To the extent that the commencement of the Certification Application is a nullity, there is accordingly no basis for the ULP Complaint. In the present circumstances, therefore, unless and until the stay in respect of the Certification Application is lifted on a nunc pro tunc basis, the Union is not in a position to establish a prima facie case in respect of the ULP Complaint for the purposes of the test applied under section 215 of the BIA. Nor is there any basis on which it satisfies the test for lifting the stay under the applicable provisions of the Receivership Order in respect of the ULP Complaint.

The Requested Relief on a Nunc Pro Tunc Basis

[40] Given the foregoing conclusions, the Union’s motions require an order of the Court validating the commencement of the Certification Application and the ULP Complaint on a nunc pro tunc basis. The Court has such authority: see, for example, McKenna Estate v. Marshall, [2005] O.J. No. 4394 (S.C.) and the cases referred to therein.

[41] The Union submits that if unions were required to seek leave prior to commencement of certification applications, it would be prohibitively difficult to ever certify a union during an insolvency proceeding. I am not persuaded that a court could not hear a motion to lift a stay in respect of a certification application on an expedited basis and, accordingly, I do not accept this argument of the Union. However, the Union submission focusses the issue on this motion in a helpful manner. It assumes that unions have a right to commence certification applications during receiverships (I do not address other insolvency proceedings in this Endorsement). Ultimately, this is the central issue in this proceeding. If a union has a right to commence such an application on behalf of employees of a company in receivership, then, for the reasons identified by the Union in this case, the Union is probably correct that it ought to be possible for such applications to be commenced without first seeking leave of the court in order to conduct a vote as soon as possible. If a union does not have such a right, the requirement for leave of the court may make such applications difficult to commence during receivership proceedings.

[42] I will discuss the Union’s request for orders on a nunc pro tunc basis first in respect of the Certification Application and then in respect of the ULP Complaint.

The Relief Sought in Respect of the Certification Application

[43] In considering the Union’s request for an order lifting the stay of proceedings in respect of the Certification Application on a nunc pro tunc basis, the Court must first address whether such an order would have been granted if it had been sought prior to commencement of the Certification Application. I conclude that it would not for the following reasons.

[44] A receiver is a court-appointed officer whose role ideally is to take possession of the property of a debtor, to put the business of the debtor on a viable financial basis with a view to maintaining it in the short term, and to sell the business on a basis which maximizes the proceeds of sale available to satisfy the liabilities of the debtor to its creditors. To this end, a receiver is typically granted extensive powers, including the power to terminate the employment of employees who the receiver determines are not reasonably necessary for the conduct of the business to be sold. The stay of proceedings typically granted is designed to prevent particular creditors from improving their position relative to other creditors. It is also intended to permit the receiver to concentrate on its principal functions, all without the time and expense of litigation outside of any court-ordered claims process that is required within the receivership proceedings. In a broader sense, the stay therefore freezes the rights and remedies of creditors as they existed as of the date of the receivership order. Any motion to lift a stay of proceedings should be assessed in relation to the extent that it furthers the purposes of receivership proceedings.

[45] In the present case, there are four principal grounds for concluding that a court would not have granted leave to commence the Certification Application if the Union had sought leave prior to commencing the Application.

[46] First, the effect of the Certification Application is to increase the rights of the members of the proposed bargaining unit relative to other creditors of the Debtor. I accept that, if the Certification Application were granted, the Union has agreed, subject to its discretion, to postpone negotiation of a collective agreement under certain conditions for a certain period of time. Nevertheless, the effect of the Certification Application is to create rights in favour of employees that did not exist at the date of the Receivership Order. As the proposed bargaining unit had not been certified by the OLRB, the employees of the Ontario Disposal division did not have the right to bargain for a collective agreement. Commencement of the Certification Application would therefore be contrary to the policy and purpose of the stay of proceedings, which, as mentioned, effectively freezes the rights and remedies of all creditors of the Debtor as of the date of the Receivership Order.

[47] Second, there are a number of practical reasons for refusing to lift the stay of proceedings that are based in the purpose and policy of receivership proceedings.

[48] Depending upon the level of interest in the assets, recognition of the proposed bargaining unit by the OLRB could impact the sales proceeds from the assets of Ontario Disposal. Creditors are subject to the collective bargaining rights of employees in existence at the time of the receivership and to any consequences that flow from the assertion of such rights. However, it is inequitable to require creditors to accept a potential diminution of the value of the assets in circumstances where employees assert rights not previously in existence while the rights and remedies of the remaining stakeholders are frozen.

[49] Conversely, the fact that there may be purchasers who are willing to take the Ontario Disposal assets subject to the proposed bargaining unit does not support the case for lifting the stay. In such circumstances, the Union will be able to pursue the Certification Application against the purchaser as soon as a sale is completed. There would therefore be no prejudice to the Union in staying the Certification Application pending completion of the sale.

[50] Lastly, and significantly, there is no certainty that the proposed bargaining unit would be meaningful after the completion of any sale of the Ontario Disposal assets. Ontario Disposal operates as a discrete and geographically separate division of the Debtor. However, there is no certainty that any purchaser would continue the Ontario Disposal business in such manner. It is quite possible that a purchaser would choose to operate any purchased assets of Ontario Disposal within a larger operating division of its own, which may or may not already be subject to a collective agreement. Alternatively, a purchaser may choose to acquire assets but no employees of the Ontario Disposal business. Further, to the extent that commencement of a certification application could effectively influence the form in which a prospective purchaser took title to the assets of Ontario Disposal, such action would be contrary to the purposes of a receivership.

[51] Given the foregoing, I conclude that the Union would not have been able to satisfy the test for the granting of leave to lift the stay of proceedings if it had sought leave prior to commencing the Certification Application.

[52] This raises the question of whether any events which have occurred subsequent to the purported commencement of the Certification Application are relevant to a decision to lift the stay on a nunc pro tunc basis. In this case, the only relevant subsequent event is the commencement of the ULP Complaint.

[53] I do not think the Court can take this event into consideration for such purpose. If the Court were to take the commencement of the ULP Complaint into consideration, it would, in effect, be proceeding contrary to its own finding that the purported commencement of the Certification Application was a nullity. Moreover, the result would be not merely to relieve the Union of the consequences of contravention of the Receivership Order, but to permit it to rely upon its actual non-compliance as a basis for the relief sought on the motion.

[54] Based on the foregoing, I therefore conclude that leave to continue the Certification Application should not be granted on a nunc pro tunc basis.

The Relief Sought in Respect of the ULP Complaint

[55] The remaining issue is whether leave should be granted under paragraphs 7 and 8 of the Receivership Order in respect of the ULP Complaint, and under section 215 of the BIA, to continue the ULP Complaint against the Receiver.

[56] The Union says that it has established a prima facie case, based on the timing of the termination of the employees relative to the commencement of the Certification Application, which would shift the onus of disproving an unfair labour practice complaint to the Receiver under the LRA. The Union submits that the Court should respect this standard of proof for purposes of section 215 of the BIA, rather than imposing a different standard in addressing the issue of leave under the Receivership Order and under section 215. In the result, for the reasons indicated below, it is not necessary to address this issue. It is also not necessary to reach any determination on the Union allegation of the use of replacement workers to perform the functions of the four terminated employees which the Receiver disputes.

[57] As discussed above, unless the Certification Application was validly commenced, the Union cannot assert that the employees were terminated in response to such action. Therefore, unless the Certification Application was validly commenced, there can be no ULP Complaint. Given the determinations above that the Certification Application is null and void, and that there is no basis for an order lifting the stay in respect of the Certification Application on a nunc pro tunc basis, it follows that there is no basis for the ULP Complaint. The Union is not in a position to establish a prima facie case in respect of the ULP Complaint for the purposes of the test applied under section 215 of the BIA. Nor is there any basis on which it satisfies the test for lifting the stay under the applicable provisions of the Receivership Order in respect of the ULP Complaint. There is, therefore, no basis for an order permitting the ULP Complaint to proceed on a nunc pro tunc basis.

Additional Issue

[58] As a final matter, for completeness, the OLRB’s recommendation of a sealed ballot with respect to the Certification Application should be addressed. Given the conclusions reached above regarding, in particular, the denial of leave to continue the Certification Application, this would appear to be unnecessary. It would neither be appropriate nor useful to conduct a sealed ballot while the Certification Application is stayed until such time as the bargaining unit can be defined, which requires the completion of any sale of the assets of Ontario Disposal together with the assumption of employees, if any, by a purchaser.

Conclusion

[59] Based on the foregoing, the Union’s motion is denied in its entirety.

Wilton-Siegel J. Date: April 13, 2016