DATE: 20041014 DOCKET: C39988

COURT OF APPEAL FOR ONTARIO

RE: GMAC COMMERCIAL CREDIT CORPORATION OF CANADA (Applicant (Respondent in Appeal)) – and - T.C.T. LOGISTICS INC., T.C.T. WAREHOUSING LOGISTICS INC., KPMG INC., the Interim Receiver and Trustee in Bankruptcy of T.C.T. Logistics Inc. and T.C.T. Warehousing Logistics Inc. (Respondents (Respondents in Appeal)) – and – INDUSTRIAL WOOD & ALLIED WORDERS OF CANADA, LOCAL 700 (Appellant)

BEFORE: FELDMAN J.A. (In Chambers)

COUNSEL: Stephen B. D. Wahl and Andrew J. Hatnay (by correspondence) for the appellant Industrial Wood and Allied Workers of Canada

Orestes Pasparakis for the respondent GMAC Commercial Credit Corporation

Frederick L. Myers for the respondent KPMG Inc.

HEARD: September 14, 2004

ENDORSEMENT RE SETTLEMENT OF ORDER

[1] The parties were unable to agree on the form of the Order to implement the reasons for decision of the Court, dated April 2, 2004. Counsel appeared before the Registrar, and later before me in Chambers and made submissions, both orally and subsequently in writing.

[2] Two issues of clarification were resolved with the agreement of all counsel during the oral hearing:

(1) The interim receiver’s protection from personal liability for pre-appointment obligations of the debtor includes accrued liabilities.

(2) The decision to be made under s. 215 of the BIA was referred back to Ground J., unless he is unable or unwilling to hear it, in which case, it may be heard by another judge on the Commercial List.

[3] The main issue in dispute is the status of paragraph 15 of the original ex parte order of Ground J. dated January 24, 2002, as amended by his subsequent order dated April 29, 2003. That paragraph was intended to provide immunity to the interim receiver for its actions. By the amendment, the immunity of the interim receiver was intended to be qualified in relation to its potential liability as a “successor employer,” by the addition of a test. On the appeal, this court rejected that test. The question, therefore, having removed the test language that was added by the amending order, is what other amending language will implement the decision of this court to refer the case back to the bankruptcy judge to determine whether to grant leave to the union under s. 215 of the BIA, to bring an application to the OLRB to have the interim receiver declared a successor employer.

[4] In settling the form of order, I do not propose to give any further reasons for decision that may be interpreted as further reasons on the appeal. Therefore, having set out the issue, I attach the form of order to be signed by the Registrar.

Signed: “K. Feldman J.A.”