CITATION: Deloitte Restructuring Inc. v. United Food and Commercial Workers Int’l Union Loc. 175, 2021 ONSC 1260
COURT FILE NO.: DC 238/18 DATE: 20210331
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Ducharme and Gomery JJ.
BETWEEN:
DELOITTE RESTRUCTURING INC. Applicant
- and -
UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION LOCAL 175 and ONTARIO LABOUR RELATIONS BOARD Respondents
COUNSEL: E. Patrick Shea and Christopher Stanek for the Applicant Douglas J. Wray and J. Kugler for the Respondent UFCW Aaron Hart and Andrea Bowker for the OLRB
Heard at Toronto: November 18, 2019[^1]
REASONS FOR DECISION
D.L. Corbett J.:
[1] This application requires the court to consider the successor and related employer provisions of the Labour Relations Act, 1995 (the “Act” or the “LRA”) to decide whether a receiver carrying on an employer’s business during a receivership is a “successor employer” under the Act. Related issues arose in another application reserved in this court.[^2] In Enercare v. UNIFOR, Local 975 (“Enercare”), the court reviews the legislative and jurisprudential history of the “related” employer provisions of the Act. In this application, I review the legislative and jurisprudential history of the “successor” employer provisions of the Act to decide whether a receiver carrying on an employer’s business during a receivership under the Bankruptcy and Insolvency Act is a “successor employer” under the LRA.
Summary and Disposition
[2] The applicant (the “Receiver”) has been operating the insolvent debtor’s retirement home business as Receiver for several years. The Board found that, in so doing, the Receiver is a “successor employer” within the meaning of the LRA. The Board’s decision on this point is reasonable: it accords with the language of the LRA and a long line of consistent authority.
[3] The Board then examined the relevant provisions of the BIA to decide whether those provisions preclude a finding that the Receiver is a “successor employer” under the BIA. The history and jurisprudence respecting these provisions are clear: receivers are not liable for pre-appointment liabilities or post-appointment liabilities that accrued pre-receivership. But a receiver who operates an insolvent business may be found to be a successor employer under the BIA, and thereby be subject to the collective bargaining rights of the employees prospectively. The Board correctly found that the BIA does not preclude the requested declaration that the Receiver is a “successor employer”.
[4] On the basis of these findings, the Board made the requested declaration, a finding that is reasonable. Therefore, for the reasons that follow, I would dismiss the application.
Jurisdiction and Standard of Review
[5] This court has jurisdiction to conduct this judicial review pursuant to ss. 2 and 6 of the Judicial Review Procedure Act.[^3] The parties correctly agree that the standard of review of the Vice Chair’s decision is reasonableness. The decision of the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov confirms this standard of review.[^4]
Successor Employers
(a) Legislative Purpose and Context
[6] Following a series of labour disruptions in Toronto between 1957 and 1961, blamed by unions on the “exploitation of labour”, and by employers on “agitation by trade union leaders”, Ontario established a Royal Commission led by H. Carl Goldenberg to study the issue. Commissioner Goldberg had “no hesitation in finding that there had been exploitation of workers in house and apartment building by some contractors and that the abuses were an underlying factor in recent labour disruptions.”[^5]
[7] Among Commissioner Goldenberg’s recommendations were remedial measures to address the problem of successor employers: “any change in the legal entity constituting the employer destroys subsisting bargaining rights, whether they flow from certification or derive from a collective agreement with the predecessor employer.”[^6] Commissioner Goldenberg accepted the concerns as stated by one union representative:
Unions and employees have time and again experienced frustration and loss of rights due to a change in the legal entity of an employer. An unincorporated firm is incorporated, or a holding company takes over the actual operation of a business, or some similar purely technical rearrangement and change of legal entity has resulted in loss of bargaining rights, seniority rights, and the like. The employees continue to work for essentially the same people, under the same supervision, have precisely the same work in the same place under the same conditions. Yet they find themselves suddenly without a union and without a collective agreement which they had had the day before.[^7]
[8] Commissioner Goldenberg noted that six Canadian provinces and the U.S. National Labor Relations Board had adopted successor rights provisions, and the Ontario Select Committee on Labour Relations had recommended such a provision during the 1957-58 term of the Legislature. Taking all of this into account, Commissioner Goldenberg recommended:
The Act should provide that where a business or a part thereof is sold, leased or transferred, the purchaser, lessee or transferee shall be bound by all the proceedings before the date of sale, lease or transfer and shall become ipso facto a party thereto, and that the proceedings shall continue as if no such change has occurred, and that if a bargaining agent was certified the certification shall remain in effect, and if a collective agreement was in force that agreement shall continue to bind the purchaser, lessee or transferee to the same extent as if it had been signed by him.[^8]
[9] Following this recommendation, the Ontario legislature amended the Act in 1962 to include successor employer provisions for the first time.[^9] The provisions were amended on re-enactment in 1962-63, and then amended again in 1970.[^10] The current provisions in the Act have continued in substance since 1970 in terms now set out in s.69 of the Act, the full text of which is set out in Appendix “A” to this decision.
(b) Jurisprudential History
a. General Interpretive Principles
[10] The “starting point” of Ontario jurisprudence on successor employers under s.69 of the Act is Thorco Manufacuring,[^11] in which the OLRB found that a “large and liberal rather than a narrow or restrictive construction” should be placed on the provision, in order to attain its objects. The Board examines the substance rather than the form or “appearance” of a transaction to determine whether successor employer obligations have been engaged.[^12] In substance, the successor employer provisions:
transform… the institutional rights of the union and the collectively bargained rights of the employees into a form of ‘vested interest’ which becomes rooted in the business entity, and like a charge on property, ‘runs with the business’.[^13]
The effect is to “provid[e] some permanence to collective bargaining rights” where legal forms taken by the employer may be transitory.[^14]
b. Development of the Test
[11] In Tatham Co., in 1980, the OLRB found that there are two steps to determining whether an employer is a successor employer:
(a) “Has there been a sale?” within the statutory definition of that term? and
(b) “Does what has been ‘sold’, ‘transferred’ or ‘disposed of’ constitute a ‘business’ or ‘part of a business’?”[^15]
The OLRB found that “there is seldom any problem with respect to the first question”,[^16] but distinguishing between the sale of a “business” or “part of a business” and a “bare” asset sale had proved to be more difficult.[^17]
[12] A year earlier, in Metro-Parking, the OLRB adopted an “instrumental approach”[^18] to distinguish between an asset sale and the sale of a business or part of a business:
A business is a combination of physical assets and human initiative. In a sense, it is more than the sum of its parts. It is a dynamic activity, a "going concern", something which is "carried on". A business is an organization about which one has a sense of life, movement and vigour. It is for this reason that one can meaningfully ascribe organic qualities to it. However intangible this dynamic quality, it is what distinguishes a "business" from an idle collection of assets.[^19]
This characterization can be contrasted with a competing line of authority from Quebec, the “functional approach”, which focused on whether employees were doing the same things at the new employer that they had been doing at their former employer.[^20] Since Metro-Parking, the OLRB has focused analysis on what has been transferred between employers, and not what work is done by employees, although the transfer of a workforce, or part of a workforce, may be part of the “instrumental approach”.
[13] The “instrumental approach” was applied by the OLRB in Canada Safeway in 1986, when it found that there had not been the sale of a business in a transaction involving the sale of three “dark” retail stores which had been closed for over a year, had no inventory and no employees, and were undergoing significant renovations before being reopened by the purchasing entity. The Board found the “the totality of the circumstances indicate that it is not a ‘business’ but merely its physical shell which is being purchased”. These circumstances provided “no basis” for invoking the successor rights provisions in the Act.[^21] The underlying principle, that there must be a transfer of a “functional economic vehicle” for successor employment rights to arise, was applied subsequently by the Supreme Court of Canada.[^22]
[14] The primacy of substance over form is illustrated by the Court of Appeal decision concerning transit workers in the Town of Ajax.[^23] The Town owned transit vehicles and other physical assets for its transit system. It contracted out transit services to a unionized employer, Charterways, which was responsible for hiring, training, paying and supervising the workforce. The Town cancelled its contract with Charterways and all of Charterways’ employees were laid off. Soon afterwards, most of these employees were re-hired by the Town, which began to operate the transit service “in-house”. The union applied for a successor employer declaration, which the OLRB granted. This court reversed that decision, but was itself reversed by the Court of Appeal, which reinstated the OLRB’s decision.
[15] Goudge J.A., writing for the court, found that “[b]ecause of the remedial purpose of s.[69], namely the preservation of bargaining rights, [the definition of ‘transfers’] is to be given a broad and liberal interpretation.”[^24] The court found further that:
what was transferred was not just the work formerly done by the Charterways employees nor the employees themselves. There was the added value that came with the continuity, experience and stability of this work force.[^25]
[16] In summary, successorship is assessed through an “instrumental approach” to determine whether a “functional economic vehicle” or a “going concern” has been transferred. This inquiry is to be undertaken through the lens of a large and liberal interpretation of the provision, to protect against the loss of bargaining rights through re-arrangement of business structures, while at the same time enabling businesses to sell their assets and arrange their affairs.
Receivers and Trustees in Bankruptcy as Successor Employers Under the LRA
[17] An assignment or petition into bankruptcy terminates the employment of the bankrupt’s employees.[^26] This termination applies to unionized employees as well as non-unionized employees.
[18] Termination of the employment of all unionized employees, because of bankruptcy, does not, however, terminate a collective agreement or bargaining rights:
To the extent that an employee's contract of employment with a bankrupt employer is contained in a collective agreement, the employee's contract is terminated on bankruptcy. This does not mean, however, that a collective agreement is terminated for all purposes upon bankruptcy.[^27]
[19] In a 1994 decision, the Ontario Court of Appeal found a trustee in bankruptcy liable as an employer for underfunded pension obligations pursuant to the Pension Benefits Act.[^28] This decision was subsequently modified legislatively, in part, by what is now s.14.06(1.2) of the BIA, which reads as follows:
Despite anything in federal or provincial law, if a trustee, in that position, carries on the business of a debtor or continues the employment of a debtor’s employees, the trustee is not by reason of that fact personally liable in respect of a liability, including one as a successor employer,
(a) that is in respect of the employees or former employees of the debtor or a predecessor of the debtor or in respect of a pension plan for the benefit of those employees; and
(b) that exists before the trustee is appointed or that is calculated by reference to a period before the appointment.
Section 14.06(1.2) of the BIA insulates trustees from pre-bankruptcy claims and accruals. It does not insulate trustees from post-bankruptcy claims and accruals. As stated by Farley J. in Royal Crest Lifecare Group Inc., “[w]hile that section is of assistance to trustees as to ‘past’ exposure, it would not provide adequate protection, in fact, it seems no protection from ongoing exposure.”[^29]
[20] Since s.14.06(1.2) does not insulate trustees from post-appointment liabilities, a practice developed of asking the court for this protection in the initial order appointing the trustee.[^30] This practice was disapproved by the Supreme Court of Canada in TCT Logistics. The SCC found that the bankruptcy court had no jurisdiction to decide whether a trustee is a successor employer within the meaning of the LRA: that determination is in the exclusive jurisdiction of the Labour Board. While s.47(2) provides broad power to the bankruptcy court to provide direction to and for the trustee in bankruptcy, this authority must be read in conjunction with s.72(1) of the BIA, which states that “[t]he provisions of this Act shall not be deemed to abrogate or supersede the substantive provisions of any other law or statute relating to property and civil rights that are not in conflict with this Act.”[^31] The court went on to find that “[e]xplicit language” would be required to extinguish all employment rights in the face of preservation of provincially created civil rights pursuant to s.72.[^32] Such “explicit language” is not found in s.14.06(2.1) of the BIA, and the general grant of authority in s.47(2) does not permit the bankruptcy court to terminate the collective bargaining rights of employees: “[t]o the extent that any provision of the [appointment] order [purports to immunize the trustee/receiver from potential successor employer liability]… it “should be set aside”.[^33]
The Board’s Decision
(a) Facts Found by the Board
[21] The Board found the following facts, which are not disputed on this application:
(a) Rose of Sharon (Ontario) Community c.o.b. as Rose of Sharon Korean Long-Term Care Home (“Rose of Sharon”) operated a 60-bed long-term care facility on Maplewood Avenue in Toronto.
(b) The respondent United Food and Commercial Workers International Union, Local 175 (the “Union”) was certified as bargaining agent for certain employees of Rose of Sharon on September 22, 2011.
(c) By order dated September 27, 2011 made pursuant to the Courts of Justice Act and the BIA, the applicant (the “Receiver”) was appointed as receiver and manager of all the assets, property and undertaking of Rose of Sharon.[^34]
[22] Rose of Sharon had not entered into a collective agreement with the Union at the time the Receiver was appointed. The Receiver refused to recognize the Union as the bargaining agent of the employees it assumed control over and refused to engage in collective bargaining with the Union.
[23] Pursuant to a consent order made February 21, 2017, the stay of proceedings consequent on the Receiver’s appointment was lifted to permit the Union to initiate an application before the Board for a related or a successor employer declaration against the Receiver.
(b) The Issue As Stated by the Board
[24] The Board found that the facts summarized above “support a finding that the receiver is a successor employer”. It then found that the issue before it, in light of this finding, is as follows:
… whether section 14.06(1.2) of the BIA prohibits or precludes the Board from making a declaration that the receiver is a successor employer pursuant to s.69 [of the LRA].”[^35]
[25] As already noted above, subsection 14.06(1.2) of the BIA provides:
Despite anything in federal or provincial law, if a trustee, in that position, carries on the business of a debtor or continues the employment of a debtor’s employees, the trustee is not by reason of that fact personally liable in respect of a liability, including one as a successor employer,
(a) that is in respect of the employees or former employees of the debtor…; and
(b) that exists before the trustee is appointed or that is calculated by reference to a period before the appointment.
[26] Thus the Board concluded that contentious issue before it was whether s.14.06(1.2) of the BIA precludes the Board from declaring the receiver to be a “successor employer” to Rose of Sharon in respect to the employees for whom the Union has been certified to represent in collective bargaining.
The Board’s Analysis of the Issue
[27] The Board correctly found that the Receiver is a “trustee” within the meaning of s.14.06(1.2) and noted that this issue was not disputed by the parties (Decision, para. 55).
[28] The Board correctly found that “explicit statutory language” would be required to immunize the Receiver from successor employer liability (Decision, para. 57).[^36]
[29] The Board then found that s.14.06(1.2) does not contain “explicit statutory language” precluding a Board declaration that the Receiver is a successor employer to Rose of Sharon for the following reasons:
a. Bargaining rights granted to a trade union are not “liabilities” but rather are a “vested right” to bargain on behalf of represented employees.
b. Indefinite suspension of bargaining rights pending completion of a sale of the business would be unduly prejudicial to the union and the employees.
c. The text of s.14.06(1.2) presumes that a trustee may be a successor employer and immunizes the trustee, as a successor employer, from pre-appointment liabilities.
d. A subsequent “successor employer” such as a purchaser of the business does not have the benefit of s.14.06(1.2) and may be liable for pre-insolvency obligations of the employer.
e. The only claim sought to be asserted by the union against the Receiver, as successor employer, in this application, is recognition of accrued bargaining rights and negotiation of a collective agreement, as prescribed by the BIA. These are not “liabilities” within the meaning of s.14.06(1.2).
[30] On this basis the Board granted the requested successor employer declaration.
Analysis
[31] The Board did not find it necessary to analyse in detail why it found that the Receiver meets the test for a “successor employer” under the LRA, apparently because the focus of argument before the Board was on BIA, s.14.06(1.2).
[32] At the time of the hearing before the Board, the Receiver had been operating the business of Rose of Sharon for more than six years. Applying the “functional approach” to determining whether the Receiver meets the test of “successor employer”, it is obvious that it does. The Board’s conclusion on this issue, set out at para. 27 of the Decision, is, accordingly, reasonable:
Having regard to the Board’s prior jurisprudence, the facts as outlined above support a finding that the Receiver is a successor employer.
[33] In respect to the effect of s.14.06(2.1), the Board’s decision concerns an extricable question of law: whether this provision precludes the Board from making a “successor employer” declaration respecting a “trustee” that would otherwise meet the test for such a declaration. I conclude that this issue is reviewable in this court on a standard of reasonableness, however I acknowledge that there is an argument that s.14.06(2.1), as a provision of general application in a federal statute respecting insolvency and bankruptcy, is a matter to be reviewed on a correctness standard, to ensure consistency of application.
[34] With the greatest of respect to the applicant, it is obvious that the Board’s decision on this point is both reasonable and correct:
(a) the subsection expressly refers to the trustee “as a successor trustee”. This language describes a state of being. It then goes on to immunize a trustee in that state of being from certain “liabilities” it might otherwise be liable for, in its capacity “as a successor employer”. As a matter of grammar and logic, the language acknowledges that a trustee may be a “successor employer” and then accords the trustee limited immunization in that capacity.
(b) the jurisprudential and legislative history of s.14.06(2.1), described above, supports the Board’s interpretation. In the words of Farley J. in Royal Crest Lifecare Group Inc., the provision provides protection for “past accruals” but not “ongoing exposure” as a successor employer.
(c) collective bargaining rights are not “liabilities” within the meaning of s.14.06(2.1), and may be properly understood, as found by the Board, as “vested rights”. To conclude otherwise would necessarily be to find that all accrued collective bargaining rights are suspended by the appointment of a trustee, a result that flies in the face of the established jurisprudence from the Supreme Court of Canada.
(d) no distinction was drawn in argument between collective bargaining rights reflected in certification of a union and collective bargaining rights reflected in a collective agreement. The facts of this case illustrate why such a distinction is not tenable: the Receiver had been operating the business for more than six years by the time of the Board’s decision, longer than the duration of most collective agreements. As a successor employer, a trustee is generally going to be bound by an existing collective agreement and will have continuing obligations arising from certification if the collective agreement expires. By the same logic, a trustee, as a successor employer, is bound by the union’s certification and thus obliged to negotiate an initial collective agreement in good faith or to negotiate a new agreement if a collective agreement expires while the trustee is operating the business.
(e) a purchaser from the trustee of the business as a going concern will likewise face obligations as a possible “successor employer” and it is difficult to see how a lacuna in the operation of collective bargaining rights would enhance the ability of the trustee, on behalf of the creditors, to realize value from the business as a going concern.
[35] The Receiver argues that it is placed in a position of conflict if it is required to negotiate a collective agreement. I see no conflict. A trustee who continues to operate a business must make all sorts of arrangements, from purchasing supplies, paying rent, negotiating the prices of goods and services bought and sold – in short, all manner of decisions that must be made in order to stay in business. Terms of a collective agreement are in no different category in the sense that there is no conflict of interest in the trustee making appropriate arrangements with unionized employees to operate the business.
[36] Put another way, the ongoing business is subject to the collective bargaining rights of employees. Those rights are inherent in the business as a going concern. If the business is worth more as a collection of assets than as a going concern, then it may be sold as such. Its value, as a going concern, may be affected by the collective bargaining rights of employees, but that is no reason to abrogate those collective bargaining rights.
[37] The Board’s decision is reasonable on the facts and the law and correct in its interpretation and application of s. 14.06(2.1) of the BIA. For these reasons the application is dismissed. The parties have agreed as to costs.
___________________________ D.L. Corbett J.
I agree: ___________________________ Ducharme J.
I agree: ___________________________ Gomery J.
Date of Release: March 31, 2021
CITATION: Deloitte Restructuring Inc. v. United Food and Commercial Workers Int’l Union Loc. 175, 2020 ONSC 1260
COURT FILE NO.: DC 238/18 DATE: 20210331
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
D.L. Corbett, Ducharme and Gomery JJ.
BETWEEN:
Deloitte Restructuring Inc. Applicant
– and –
United Food and Commercial Workers Int’l Union Loc. 175 Respondent
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: March 31, 2021
[^1]: Release of this decision was delayed in order to receive submissions respecting the decision of the Supreme Court of Canada in Vavilov, and as a result of the COVID-19 pandemic. [^2]: Enercare v. UNIFOR, Local 975, 2021 ONSC 606. [^3]: Judicial Review Procedure Act, RSO 1990, c. J.1, ss. 2 and 6. [^4]: Vavilov, para. 23. [^5]: Report of the Royal Commission on Labour-Management Relations in the Construction Industry, (Commissioner H. Carl Goldenberg, Ontario, 1962) (the “Goldenberg Report”), p.18. [^6]: Goldenberg Report, p.44. [^7]: Goldenberg Report, p.45. [^8]: Goldenberg Report, p.73. [^9]: An Act to Amend the Labour Relations Act, SO 1961-62, c.68, s.4. See remarks of the Minister of Labour, the Hon. Bill Wallender, Ontario Legislative Assembly, Official Report of Debates (Hansard), 26th Leg., 3rd Sess., No. 69 (April 13, 1962), pp. 2349-2350 [^10]: An Act to amend the Labour Relations Act, SO 1962-63, c.70, s.1; An Act to amend the Labour Relations Act, SO 1970, c.85, s.22(1). [^11]: U.S.W.A. v. Thorco Manufacturing (1965), 65 CLLC 16. See G.W. Adams, Q.C., Canadian Labour Law, loose-leaf (2019-Rel.75), 2nd ed. (Toronto: Thomson Reuters Canada Ltd., 2019), para. 8.160 (“Adams, Canadian Labour Law”). [^12]: Canada Retail Employees Union, Local 1000A v. More Groceteria Ltd., [1980] OLRB Rep. 486 at 492. [^13]: International Union of Operating Engineers, Local 793 v. Magnus Construction Limited et al., [1980] O.L.R.B. No. 7, (“Tatham Co,”) para. 21. [^14]: Canada Retail Employees Union, Local 1000A v. More Groceteria Ltd., [1980] OLRB Rep. 486 at 492. [^15]: International Union of Operating Engineers, Local 793 v. Tatham Co., 1980 859 (ON LRB), para. 23. [^16]: Though the first question may not often be problematic, there must be at least some evidence of a disposition by the first entity to the second entity, directly or indirectly: Lester (W.W.)(1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 22 (SCC), [1990] 3 SCR 644 at 681. [^17]: International Union of Operating Engineers, Local 793 v. Tatham Co., 1980 859 (ON LRB), para. 23. [^18]: Adams, Canadian Labour Law, para. 8.190. [^19]: Canadian Union of Public Employees v. Metropolitan Parking Inc., [1980] C.L.R.B.R. 197, para. 29. [^20]: See Pascal McDougall, “Leaving Labour Law’s Pragmatic and Purposive Fortress Behind: Canadian Successor Rights Law as a Case Study” (2016) 54:1 Osgoode Hall LJ 253. [^21]: United Food and Commercial Workers, Local 206 v. Canada Safeway Ltd., [1986] O.L.R.B. Rep. 305, para. 11. [^22]: Lester (W.W.)(1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 22 (SCC), [1990] 3 SCR 644 at 677, per McLachlin J. (as she then was). [^23]: Ajax (Town of) v. National Automobile, Aerospace and Agricultural Implement Workers of Canada (1998), 1998 7179 (ON CA), 41 OR (3d) 426 (CA). [^24]: ibid., para. 24. [^25]: ibid., para. 38. [^26]: Rizzo & Rizzo Stores Ltd. (Re), [1988] 1 SCR 27 [^27]: GMAC Commercial Credit Corp. – Canada v. TCT Logistics (2004), 2004 36130 (ON CA), 70 OR 321 (Ont. CA), para. 49, rev’d on other grounds [2006] SCR 123. [^28]: St Mary’s Paper Inc., Re (1994), 1994 1232 (ON CA), 19 OR (3d) 163, aff’g (1993), 1993 5451 (ON SC), 15 OR (3d) 359 (Gen. Div.). The problem in St. Mary’s was that the Pension Benefits Act created a current and ongoing obligation for employers to meet pension underfunding. This had the effect of creating a prospective obligation to fund historic underpayments, effectively making the trustee in bankruptcy liable for pre-bankruptcy events. [^29]: Royal Crest Lifecare Group Inc. (2003), 2003 11504 (ON SC), 40 CBR (4th) 146, para. 28, (Ont. SCJ). [^30]: See Ronald B. Davis, “From St. Mary’s Paper to TCT Logistics: Receiver-Managers of Insolvent Companies in a Constitutional Battlefield, 42 Canadian Business LJ, No. 1, p.12. [^31]: GMAC Commercial Credit Corporation - Canada v. T.C.T. Logistics Inc., 2006 SCC 35, [2006] 2 SCR 123, paras. 45-46. [^32]: ibid., para. 51. [^33]: ibid., para. 52. [^34]: The legal name of the Receiver changed to its current form on July 1, 2013. [^35]: Decision, para. 28. [^36]: See GMAC Commercial Credit Corp. – Canada v. T.C.T. Logistics Inc., 2006 SCC 35, [2006] 2 SCR 123, para. 51, per Abella J.; Crystalline Investments Ltd. v. Domgroup Ltd., 2004 SCC 3, [2004] 1 SCR 60, para. 43, per Major J.