ONTARIO LABOUR RELATIONS BOARD  
OLRB Case No: 1298-20-R  
Canadian Airport Workers Union, Applicant v Goodwill Industries,  
Ontario Great Lakes, Responding Party  
BEFORE: Derek L. Rogers, Vice-Chair  
APPEARANCES: Raymond Seelen and Artan Milaj appearing for the  
applicant; Christopher A. Sinal, Jennifer J. Herpers, and Michelle Quintyn  
appearing for the responding party  
DECISION OF THE BOARD: March 4, 2022  
This is an application pursuant to section 69 of the Labour  
Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”) in which  
the applicant trade union, the Canadian Airport Workers Union (“the  
applicant” or “the Union”), asserts that Goodwill Industries, Ontario  
Great Lakes (“the responding party” or “OGL”) is a successor employer  
to Goodwill Industries of Toronto, Eastern, Central and Northern Ontario  
(“TECNO”) and bound to its collective agreement.  
In the application, the Union alleged that “Goodwill TECNO has  
sold or transferred all or part of its business to the Responding Party  
and/or there has been an amalgamation of the Responding Party with  
Goodwill TECNO”.  
OGL contended that no sale of business within the meaning of  
section 69 of the Act took place between it and the “now defunct” TECNO  
and that the applicant’s seeking to apply section 69 amounts to an  
attempt to expand its bargaining rights. The remedies requested in the  
application were described differently in that the Union sought a finding  
that OGL “is bound to the Collective Agreement between the Applicant  
and Goodwill TECNO with respect to its operations in any of the areas  
where Goodwill TECNO once operated” and a declaration that OGL is  
required to bargain with the applicant for the purpose of negotiating a  
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new collective agreement. That is to say, the application did not suggest  
that the Union sought to extend its bargaining rights beyond the area  
for which it had been recognized by TECNO.  
The parties submitted a joint book of documents and agreed  
about many of the material facts.  
The responding party’s Chief  
Executive Officer, Ms. Michelle Quintyn, was the only person called to  
testify.  
The parties concluded their cases with written submissions  
delivered in December 2021 and in January 2022.  
Background  
The applicant was certified to represent the employees of  
Goodwill Industries of Toronto1 in December 2012. Those parties  
entered into a collective agreement for a term that ran from March 2013  
to March 2016. While TECNO anticipated bargaining with the Union, no  
renewal agreement was concluded after TECNO’s disaffiliation as a  
Goodwill operation on February 3, 2016 and its filing an assignment in  
bankruptcy on February 8, 2016.  
The disaffiliation resulted in TENCO’s Goodwill territory  
becoming unassigned and available.  
The recognition clause in the collective agreement was quoted  
as follows by the responding party:  
2.01 Goodwill recognizes the Union as the sole and  
exclusive bargaining agent for all employees of Goodwill  
Industries of Toronto, Eastern, Central & Northern Ontario  
including REACH employees, save and except assistant store  
managers and those above the rank of assistant stores  
managers, team leads and those above the rank of team  
leads, office, clerical, security and professional staff,  
supported employees on the roles of the Ministry of  
Community and Social Services, persons employed in the  
Creative Services Division and students employed during the  
school vacation period.  
1
The parties did not explain the migration from “Goodwill Industries of Toronto” to “Goodwill  
Industries of Toronto, Eastern, Central and Northern Ontario” or whether the change as solely  
in the name and not in the Union’s jurisdiction.  
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The applicant indicated in its pleading that TECNO’s operations  
had included sixteen stores and ten donation centres in Toronto,  
Mississauga, Brampton, Newmarket, Barrie, Orillia and Brockville.  
TECNO was, and OGL continues to be, one of more than one  
hundred fifty entities (sometimes “Goodwills” or “a Goodwill” if a single  
entity) in Canada and the United States that, together with member  
agencies in other countries, comprise Goodwill Industries International  
(“GII”), described by the responding party as a network of “autonomous  
community-based non-profit charities . . . striving toward achieving a  
mission . . . most often centred on serving people who face disability or  
who are marginalized and shut out of full participation in society”.  
OGL described itself as having online services and forty-two  
locations through which it “provides work opportunities, skills  
development, and employee and family strengthening.”  
More  
particularly, OGL added:  
Its mission services and operations are multi-faceted and  
include: life stabilization, soft and technical skills training;  
career advancement services; donation centres; community  
(thrift) stores; boutique stores; bookstores; café and  
banquet services; manufacturing wheel chairs; de-  
manufacturing computer parts; assembling and packaging  
medical supplies; apparel manufacturing; and recycling.  
Social enterprises, such as thrift stores, offer opportunities  
for people shut out of work to gain skills, experience, work  
readiness, and the dignity and purpose that comes with  
work.  
The applicant characterized the responding party more  
prosaically as “a not-for-profit business which collects, repairs and sells  
used goods and clothing”. The Union did allow that OGL “also engages  
in certain charitable activities”. Both descriptions were borne out on the  
evidence.  
The applicant expanded on its description in its submissions:  
Goodwills . . . view themselves as movement oriented. The  
central philosophy underlying the movement is the provision  
of work to those who face barriers in entering the workforce,  
such as persons with disabilities or recent immigrants.  
Goodwills believe that by providing these persons with work  
in Goodwill facilities and by providing job training or other  
services, they are giving their employees the skills that they  
need to enter the workforce elsewhere. This development  
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is both funded by and facilitated through the Goodwills’  
commercial operations.  
These commercial operations  
consist of the collection, repair and resale of used goods.  
Resale typically occurs in thrift stores, but some Goodwills  
(including the Responding Party) also sell goods online.  
Some Goodwills engage in other activities in addition to their  
thrift stores, such as the operation of cafes or of catering  
services.  
For the purposes of this matter, it is sufficient to accept that GII  
provides services to member agencies such as TECNO and OGL,  
authorizes members to operate under the Goodwill brand, regulates the  
use of Goodwill’s names, trademarks, and logos, including the name  
“Goodwill” and what is referred to as the “smiling G” logo, enforces  
prescribed membership standards, sets quality standards for goods and  
services offered by members, polices accreditation, affiliation and  
disaffiliation, and determines applications for membership, including  
applications of subsisting member agencies to acquire an unassigned  
territory such as that created by the disaffiliation of TENCO.  
GII was not a party to this application.  
While it subsequently disputed the applicant’s characterization  
of GII’s grant of territorial authority to a Goodwill as a licence, OGL did  
state in its submissions that GII grants members “a license . . . to  
operate under the Goodwill brand” including “the right to use the  
Goodwill names, trademarks, service marks and logos”.  
Goodwills pay dues to GII in accordance with their revenues.  
Each Goodwill is allocated a specific geographic territory within  
which it will have the exclusive rights to the services associated with the  
Goodwill name and undertaking, and to carry on business as a Goodwill.  
Each member agency is at liberty to select the services it will offer in its  
assigned territory.  
Goodwills do not compete with each other. As noted by the  
applicant in its closing submissions, GII’s territory policy “protects  
Goodwills on multiple fronts, including competition for customers,  
financial donors, grants, donated goods and real estate.” Rather than  
compete, the Goodwills are expected to and do engage in the sharing of  
advice and expertise in order to facilitate the advancement of the  
“movement’s” objectives. In that vein, Ms. Quintyn, as an experienced  
CEO for OGL, mentored TECNO’s CEO for several years following her  
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appointment and through to TECNO’s eventual disaffiliation and  
bankruptcy.  
The GII Territory Policy includes the following provision:  
Each Member is assigned a territory by the GII Board of  
Directors with precise boundaries upon its recognition as an  
Organizational Member. The territory given to a Member  
shall be an asset of that Member and not subject to violation  
by another Member (or the other Member’s affiliates,  
subsidiaries, or other related organizations) or GII. Any  
Member that accepts an assignment of territory  
acknowledges that at such time as a local Goodwill ceases  
to be a member of GII, whether through resignation or  
termination of membership, that member’s geographic  
territory (but not its real or personal property) will revert to  
unassigned status until the Board of GII reassigns that  
territory.  
OGL has been in place for more than seventy-five years, and  
recently expanded its historically settled territory in two steps: first, its  
successful application in 2016 to be granted what had been TECNO’s  
territory2 and, secondly, its acquisition, by merger, of the locations of  
another Goodwill agency, Goodwill Industries Essex Kent Lambton Inc.  
(“EKL”), in 2019.  
In its 2016 application to GII, the responding party described  
the TECNO territory as follows: “The TECNO Goodwill is the 4th largest  
territory in the Goodwill International movement with 9.6 million people  
equivalent to 30% of the Goodwill market share in Canada.”  
TECNO’s territory comprised much of Central, Eastern and  
Northern Ontario to Thunder Bay and beyond; however, its operations  
had consisted principally of community thrift stores and donation  
centres in Toronto, Ottawa, Brockville, Kingston, Brampton, Richmond  
Hill, Newmarket, York, Peel, Barrie, and Orillia. TECNO employed  
approximately six hundred workers immediately prior to its shutdown.  
The responding party’s territory, before the expansions in 2016  
and 2019, included the counties of Middlesex, Elgin, Norfolk, Oxford,  
Perth, Waterloo, Wellington, Huron, Bruce and Grey. OGL has  
2
The applicant referred throughout its submissions and reply to this as the “TECNO Territory”  
while the responding party favoured identifying it as the “Unassigned Territory”. I have most  
often referred to the “TECNO territory” solely as a matter of convenience.  
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approximately nine hundred employees.  
In addition to other  
endeavours, OGL now manages donation centres, thrift stores, and  
boutiques for used personal, household and other goods in forty-two  
locations in London, Strathroy, St. Thomas, Tillsonburg, Ingersoll,  
Woodstock, Wallaceburg, Chatham, Windsor, Essex, Kingsville,  
Goderich,  
Stratford,  
Cambridge,  
Kitchener-Waterloo,  
Guelph,  
Mississauga, Toronto, and Newmarket.  
The Demise of TECNO  
Late in the day on January 15, 2016 the board of directors of  
TECNO approved resolutions authorizing its CEO, Ms. Keiko Nakamura,  
to layoff all employees effective at the end of the following day, to  
terminate operations and close all stores effective at the same time, and  
to file appropriate documents in connection with the termination of all  
employees. The members of the TECNO board resigned en masse that  
evening.  
Consistent with those resolutions, TECNO employees, including  
the applicant’s members, attending work on January 17, 2016 found  
locked doors and posted signs indicating that TECNO had ceased all  
operations effective immediately.  
Ms. Quintyn had been mentoring Ms. Nakamura, in accordance  
with a formal GII mentorship programme. Nevertheless, and while she  
was aware of difficulties that confronted TECNO and Ms. Nakamura,  
Ms. Quintyn testified that the demise of the neighbouring Goodwill  
shocked her. She and OGL’s chief financial officer attempted to assist  
in restoring TECNO’s operations; however, GII’s board of directors voted  
on February 3, 2016 to disaffiliate TECNO with immediate effect.  
The disaffiliation required TECNO to cease representing itself as  
a Goodwill, to cease using the Goodwill trademarks and logos, and to  
destroy all signs identifying it as a Goodwill entity. That ended TECNO’s  
right to carry on as a Goodwill in its assigned territory and rendered  
ineffective its attempt at resuscitation; however, Ms. Nakamura, with  
assistance from Ms. Quintyn and OGL, did pursue an attempt to  
restructure TECNO for a period after GII’s notice of its disaffiliation.  
On February 8, 2016, TECNO filed an assignment in bankruptcy.  
The statement of affairs in the bankruptcy indicated TECNO’s total  
liabilities to have been in excess of six million dollars against assets  
valued at less than one million dollars. Those assets included inventory  
and accounts receivable, but no real estate and no trade fixtures.  
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The trustee in bankruptcy liquidated TECNO’s assets for the  
benefit of creditors. OGL acquired none of those assets.  
TECNO’s landlords assumed their respective properties and all  
Goodwill signage was removed from their sites.  
In the result, following the liquidation processes, nothing  
remained of TECNO’s stores, donation centres, or other assets as  
elements associated with a Goodwill or GII.  
OGL Obtains the Former TECNO Territory  
On March 8, 2016, Ms. Quintyn proposed to her board of  
directors that OGL should apply to GII for the open territory made  
available by the disaffiliation of TECNO. The application was made to  
GII on March 24, 2016 and granted on June 12, 2016.  
In its submissions to the Board, OGL made the following points  
regarding its application to GII:  
.
OGL’s application “addressed the risks the organization  
would face if it was granted the Unassigned Territory,  
including the likelihood of unionization”.  
.
OGL’s business plan for the Unassigned Territory  
presented a very different business model to TECNO.  
OGL’s approach was focused on lean processes with  
rigorous operating procedures, driven by data and  
science.  
.
.
No staff of the former TECNO . . . assisted in drafting  
OGL’s Application.  
OGL’s Application did not involve leveraging TECNO’s  
assets as there were no assets to leverage. TECNO’s real  
estate had been assumed by the landlords, the  
donations and equipment were liquidated, and the  
senior management team was not interested in coming  
over to OGL.  
The decision of the GII board of directors to award the former  
TECNO territory was stated in the responding party’s pleading as  
“thereby expanding OGL’s territory to include: Toronto, York, Peel,  
Durham, Dufferin, Simcoe, Kawartha Lakes, Northumberland,  
Peterborough, Prince Edward, Hastings, Lennox & Addington, Frontenac,  
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Leeds & Grenville, Lanark, Ottawa, Stormont Dundas and Glengarry,  
Prescott & Russell, Renfrew, Halliburton, Muskoka, Nipissing, Parry  
Sound, Manitoulin, Greater Sudbury Area, Sudbury, Algoma, Cochrane,  
Thunder Bay, Rainy River and Kenora.”  
OGL’s Conduct after Obtaining the Territory  
OGL noted in its pleading that it “did not expand its operations  
into the unassigned territory . . . for over three years.” Ms. Quintyn  
explained the delay as a function of financial concerns, the restricted  
availability of suitable properties in the areas it wished to serve, and the  
merger with EKL that had not been a factor at the time of OGL’s  
application to GII for the former TECNO territory. The documentation  
supporting the responding party’s application for the territory also  
indicated that the planned development of the territory was to be  
staged.  
On June 28, 2019, OGL opened a boutique Goodwill store in  
Newmarket.  
Almost one year later, on June 16, 2020, the responding party  
opened a thrift store and donation centre on Dundas Street East in  
Mississauga, in connection with which it pleaded:  
Although TECNO once operated a donation centre/thrift  
store at the same premises in which the Mississauga  
boutique store3 [sic] now operates, OGL did not assume  
TECNO’s lease. Rather, there were four tenants who leased  
the premises between TECNO and OGL. Moreover, the  
building is now owned and managed by a different  
organization.  
In its application, the Union pleaded: “In June 2020, the  
Applicant became aware that certain stores which had been operated by  
Goodwill TECNO had reopened and were now being operated by the  
Responding Party”. The applicant did not address the extent of its  
knowledge or ignorance about OGL’s being granted the territory in 2016  
or its opening a location in Newmarket in June 2019.  
OGL acknowledged that both it and TECNO sold donated goods  
clothing, shoes, household items, games, recreational equipment,  
3
This is a misdescription; the Mississauga location is a thrift store/donation centre and not a  
boutique operation.  
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books, etc. at the Mississauga location and that its locations dealt  
with items of the same sorts TECNO had received and sold. Regardless  
of OGL’s “lean processes” and “rigorous operating procedures, driven by  
data and science”, there was no evidence of any changes in the  
functioning of OGL’s donation centres and thrift stores in Newmarket  
and Mississauga that were material in the context of labour relations  
generally and section 69 of the Act in particular.  
The responding party also opened a facility on Dufferin Street  
in Toronto. Ms. Quintyn was unsure whether it opened in 2020 or 2021;  
however, as neither party referred to that location in their pleadings  
filed in or about September 2020, one would assume that the third  
location was opened after September 2020.  
Leaving aside the disputed significance of OGL’s successful  
application for the former TECNO territory, the parties agreed that the  
responding party did not purchase or otherwise acquire any of the  
assets, inventory, equipment or supplies that had been used or in the  
possession of TECNO prior to its demise.  
OGL had not taken the place of TECNO on any leases or  
contracts. It did not employ any former employees of TECNO, and it  
maintained that there had never been “any transfer of expertise,  
knowledge and/or skill of key personnel from TECNO to OGL”. The  
responding party also pleaded:  
There has never been the purchase or transfer of goodwill,  
actual or otherwise, from TECNO to OGL. To the extent that  
TECNO possessed any goodwill based on locality, this  
goodwill has long since dissipated in the three/four years  
between TECNO’s cessation of operations and OGL’s opening  
of the Newmarket boutique store and the Mississauga thrift  
store/donation centre, respectively.  
OGL’s Expansion into Essex Kent Lambton  
OGL took over operational control of the Essex Kent Lambton  
Goodwill by a merger of their two organizations in 2019. OGL acquired  
the locations previously operated by EKL. GII was not required to be  
involved in vetting or approving the merger as it was not controlled by  
GII’s regulations or operating requirements.  
The responding party noted that, in merging with EKL, it had  
recognized Unifor Local 200 as the bargaining agent of certain EKL  
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employees and had bargained a renewal of the Unifor collective  
agreement for those employees in 2019.  
Evidence of Alleged Anti-Union Animus  
The Union’s application made no reference to any history of its  
having concerns about OGL or GII harbouring anti-union animus;  
however, in the documents OGL produced, there was evidence of their  
having shared a keen and continuing concern to assure union avoidance.  
In applying to GII for the then unassigned territory that had  
been TECNO’s, OGL identified the threat of unionization as the most  
significant issue it confronted with respect to what would be its new  
operations, if not its entire undertaking.  
Moreover, Ms. Quintyn had engaged in email (and perhaps  
other) discussions with Ms. Nakamura about decertifying or otherwise  
displacing the applicant prior to the collapse of TECNO. Included in the  
joint book of documents produced for this matter were emails  
exchanged by the two CEOs in which, by way of summary,  
Ms. Nakamura indicated TECNO’s perceived difficulties in dealing with  
the Union and Ms. Quintyn identified means by which those concerns  
might be addressed. Ms. Quintyn’s suggestions counselled conduct  
contrary to the Act such as seeking the Union’s decertification and the  
possible introduction of another union to displace it as the bargaining  
agent. Ms. Quintyn maintained in her evidence that she was unaware  
at the time that she was suggesting unlawful conduct; however, the  
advice she proffered was patently inappropriate.  
As noted by the Union in its closing submissions, the evidence  
also established that GII was mindful of the effect the Union was thought  
to have had on the history and prospects of TECNO. In a January 16,  
2021 email reporting on the sudden closing of TECNO, GII’s president,  
Jim Gibbons, stated:  
You are likely aware that the Toronto Goodwill has been  
struggling financially over the course of the last decade. It  
is a Goodwill that has a very strong union. This past year  
they have been executing on a restructuring plan which  
included some downsizing. They were not garnering the  
cooperation they needed, and union grievances and Labour  
Board directives prevailed.  
Ms. Quintyn forwarded that email to her board of directors and  
added these comments:  
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Many of you are aware that the Toronto Goodwill has been  
struggling financially over the course of the last dozen years.  
It is a Goodwill that has a strong union in a very pro-union  
environment, and for a variety of reasons they have  
struggled to pull themselves out of financial distress. Keiko  
Nakamura, the CEO, contacted me earlier this week,  
informing me that due to some union demands they may be  
placed in an untenable position and may need to move down  
a dissolution path. Events that took place later this week  
accelerated that untenable position, and last night the board  
of directors of the Goodwill of Toronto resigned in its  
entirety.  
The minutes of the OGL’s board meeting on March 8, 2018, prior  
to the submission of the responding party’s application to GII, noted  
that “the issue of union succession rights” was addressed, that a legal  
opinion was being prepared, and the preliminary advice suggested “that  
the plan as proposed should carry no more additional risk of being  
unionized than would exist in any workplace in Ontario”. The comment  
continued with:  
The likelihood of the union claiming succession is high  
however improbable that the Labour Board would  
automatically certify. Having a single Goodwill be the sole  
territory owner will be a shield for other Canadian Goodwills  
and will keep union monitoring and avoidance centred.  
Other recorded comments and discussion confirmed the concern about  
union avoidance, the union of immediate concern obviously being the  
applicant.  
The responding party’s March 8th document entitled “Board  
Recommendation/Decision Overview” dealing with the proposed  
application to GII included the following comment under the caption  
“Labour/Union Considerations”: “Clearly the union issue is the most  
pressing due diligence concern and perhaps one of the biggest risks for  
Goodwill Industries Ontario Great Lakes moving forward”.  
The  
document noted that OGL’s “attorney has provided a thorough opinion  
(appended), taking into consideration the Collective Bargaining  
Agreement, The Ontario Labour Relations Act, and relevant case law”  
and added: “A second review by another arms-length attorney is now  
under development as an extra precaution”.  
After a redacted portion, the document continued:  
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Further . . . it is important that Goodwill Great Lakes and  
its 600 employees are not organized, and the company has  
never in its decades long history had a brush with a union. . .  
The company has been diligent about practicing union  
avoidance under professional guidance. An attempt to  
unionize a single new territory site would hopefully not  
succeed but in any event, could be overpowered by tactics  
that require consideration of all Great Lakes employees and  
its long history of no union.  
None-the-less [sic], the union concern will be the focus of  
significant effort to build culture, expand into the territory in  
a careful and timely manner and monitor the issue as in the  
past.  
The responding party’s concern about the applicant and  
unionization was not merely academic. In a November 26, 2015 email  
to Ms. Quintyn and other Goodwill executives in Ontario, Ms. Nakamura  
warned:  
I had spoken with Michelle [Quintyn] that I heard from my  
union that they were going after London.  
My union  
agreement expires in March 2016 and I have another union  
that has appeared since the summer trying to take over.  
Union activity is VERY active right now. Their focus is on  
Toronto since our agreement expiry is time sensitive e.g.,  
another union can take over from the existing within 60 days  
of contract expiry. The current union, CAWU’s wish is to  
unionize Goodwill's retail operations in Canada.  
In making its application to GII on March 23, 2016, OGL  
repeated much of the above, adding: “Recommendations to protect the  
reality of an unrelated company have been made by the attorney and  
will be followed in the entry and long-term development strategy”.  
Under the caption “Phasing Development to Monitor Risk”,  
OGL’s application to GII stated:  
The entry strategy to the expanded market will be  
deliberately phased and monitored to assess risk particularly  
pertaining to labour organizing activity and donor  
contribution. Early markets targeted (first 12 months) will  
be those that have no history of Goodwill on the assumption  
that union activity will be unlikely. However, a site in or  
near where Goodwill TECNO has a history of operating will  
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be opened as part of the first 18-month entry phase to  
monitor these same issues.  
The “Territory Application Analysis by GII’s Member Services  
Team” identified as one of the “Strengths of the Proposal” OGL’s “ability  
to mount a successful response to potential labour issues”, a comment  
that was carried through to the minutes of the GII’s board meeting at  
which OGL’s application was approved on June 12, 2016.  
Those minutes also recorded the GII board’s interest in having  
Goodwill return to the Toronto area “to reestablish the brand and blunt  
competition”.  
Statutory Provisions  
The immediately relevant statutory provisions are as follows:  
69. (1) In this section,  
“business” includes a part or parts thereof;  
“sells” includes leases, transfers and any other manner of  
disposition, and “sold” and “sale” have corresponding  
meanings.  
Successor employer  
(2)  
Where an employer who is bound by or is a party  
to a collective agreement with a trade union or council of  
trade unions sells his, her or its business, the person to  
whom the business has been sold is, until the Board  
otherwise declares, bound by the collective agreement as if  
the person had been a party thereto and, where an employer  
sells his, her or its business while an application for  
certification or termination of bargaining rights to which the  
employer is a party is before the Board, the person to whom  
the business has been sold is, until the Board otherwise  
declares, the employer for the purposes of the application  
as if the person were named as the employer in the  
application.  
Same  
(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 16 or 59, sells his, her  
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or its 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 16 or  
59, as the case requires.  
. . .  
Power of Board to determine whether sale  
(12) Where, on any application under this section or in  
any other proceeding before the Board, a question arises as  
to whether a business has been sold by one employer to  
another, the Board shall determine the question and its  
decision is final and conclusive for the purposes of this Act.  
Duty of respondents  
(13) Where, on an application under this section, a  
trade union alleges that the sale of a business has occurred,  
the respondents to the application shall adduce at the  
hearing all facts within their knowledge that are material to  
the allegation.  
The Applicant’s Submissions  
The applicant referred to the following authorities in making its  
submissions or in replying to those of the responding party:  
United Food & Commercial Workers, Local 175 v Pavao  
Meats Wholesale & Retail Ltd, 2016 45355  
(ON LRB) (“Pavao Meats”)  
Service Employees Union, Local 268 v. Thunder Bay  
Ambulance Services Inc., 1978 569 (ON LRB)  
(“Thunder Bay Ambulance”)  
Service Employees International Union, Local 183 v.  
Daynes Health Care Limited, 1984 1003  
(ON LRB)  
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Hotel Employees Restaurant Employees Union, Local 75  
v. Accomodex Franchise Management Inc., 1993  
8023 (ON LRB) (“Accomodex”)4  
Canadian Union of Public Employees v. Metropolitan  
Parking Inc., 1979 815 (ON LRB) (“Metropolitan  
Parking”)  
International Beverage Dispensers' and Bartenders'  
Union, Local 280, v. Vivace Tavern Inc., 1982  
962 (ON LRB) (“Vivace Tavern”)  
Local 280 of the International Beverage Dispensers' &  
Bartenders' Union of the Hotel and Restaurant  
Employees' and Bartenders' International Union, v. John  
Katsuras, c.o.b. as Krush, 1986 1671 (ON LRB)  
(“Krush”)  
Power Workers’ Union, Canadian Union of Public  
Employees, Local 1000 v. The Goldman Group, 2001  
5945 (ON LRB) (“Goldman Group”)  
Service Employees' Union, Local 183, v. Riverview  
Manor, operated by Daynes Health Care Ltd., 1983  
979 (ON LRB) (“Riverview Manor”)  
London & District Service Workers' Union, Local 220 v.  
Caressant Care Nursing Home of Canada Limited, 1984  
1006 (ON LRB) (“Caressant Care”)  
Service Employees' International Union, Local 532 v.  
Saint Elizabeth Home Society, Ontario Ministry of Health  
and Hamilton Jewish Home for the Aged Charitable  
Foundation operating as Shalom Village South, 1992  
6339 (ON LRB) (“Shalom Village South”)  
United Food and Commercial Workers International  
Union, Local 175 v. 1390386 Ontario Limited c.o.b. as  
Ingersoll Knechtel Foodland, 2002 22867  
(ON LRB) (“Knechtel Foodland”)  
Ontario Council of The International Union of Painters  
and Allied Trades International Union of Painters and  
Allied Trades, Local 1891, v The Builders Warehouse  
Inc., 2017 28688 (ON LRB)  
4 I note that the applicant referred to this decision as “Accommodex” throughout its submissions  
and reply. I have not corrected that error in what follows.  
- 16 -  
Canadian Union of Public Employees and its Local 1521-  
03 v Ottawa-Carleton Lifeskills Inc., 2014 75042  
(ON LRB) (“Ottawa-Carleton Lifeskills”)  
IWA-Canada, Local 2693 v. Long Lake Forest Products  
Inc., 1994 CarswellOnt 1526 (ON LRB) (“Long Lake  
Forest Products”)  
United Food & Commercial Workers, Local 175, v Sofina  
Foods Inc., 2018 99023 (ON LRB) (“Sofina  
Foods”)  
The Carpenters’ District Council of Ontario, United  
Brotherhood of Carpenters and Joiners of America on  
behalf of Local 1072 v. Woodland Store Fixtures  
Incorporated and Woodbench Incorporated, 2012  
67907 (ON LRB) (“Woodland Store Fixtures”)  
Labourers’ International Union of North America, Local  
183 v Germag Construction Limited, and Drain Bros.  
Excavating Limited, 2021 868 (ON LRB)  
(“Germag Construction”)  
Labourers' International Union of North America, Local  
506 v Northern Precast, 2018 71350 (ON LRB)  
(“Northern Precast”)  
UNIFOR Local 975 v. Enercare Home & Commercial  
Services Limited Partnership, 2017 36002  
(ON LRB) (“Enercare Home”)  
The essence of the applicant’s position is captured in the  
following introductory submission:  
29. The Union asserts that the following factors are relevant  
and must be considered by the Board:  
a.  
The Responding Party’s exclusive right to operate  
as “Goodwill” within the TECNO Territory;  
b.  
c.  
The continuation of TECNO’s business;  
The Responding Party, GII and TECNO each had  
pre-existing relationships;  
d.  
The acquisition of goodwill following the TECNO  
bankruptcy; and,  
- 17 -  
e.  
Policy concerns with respect to the ability of GII  
to frustrate a trade union’s bargaining rights.  
The applicant characterized the assignment of territory as “a  
substantial component of the Responding Party’s operations within the  
TECNO Territory”, adding: “It is a prerequisite to operating the business  
without the territory, the Responding Party would be prohibited from  
operating in the territory under the Goodwill name” and “the assignment  
of the TECNO Territory represents the essence of the Responding Party’s  
operations within that territory”.  
The applicant noted that the assignment of the territory  
conferred rights of “significant financial value” associated with the  
“exclusive right to operate as a ‘Goodwill’ within the territory” without  
competition from other Goodwills, in contrast to the circumstances of  
“traditional franchisors” that “can and do create ‘cannibal’ franchises”.  
The applicant’s argument was as follows:  
33. The assignment of the TECNO Territory confers upon the  
Responding Party certain rights.  
These rights are of  
significant financial value. The Responding Party has an  
exclusive right to operate as “Goodwill” within the territory  
and to use the trademarks associated with the Goodwill  
brand within the territory. Goodwill is one of the largest and  
most recognizable thrift store brands worldwide. The use of  
the Goodwill brand in the association with GII provides a  
competitive advantage to the Responding Party as against  
other thrift brands in the area. As Ms. Quintyn noted during  
her testimony, the Responding Party competes with other  
thrift retailers for more than just customers. They also  
compete for grants, for real estate and for donations.  
Ms. Quintyn also agreed that the responding party faces a  
degree of competition from other retailers like Wal-Mart.  
34. Moreover, the territory permits the Responding Party to  
operate without competition from other Goodwills. This is a  
significant distinction between GII and more traditional  
franchise operations. GII protects the territory for each of  
its members and as such members do not compete with  
each other. This includes competition for funding, for  
employees, for real estate and for sales. Instead, Goodwills  
operate solely within their territories and cooperate with  
other members with respect to advice, technology and best  
practices.  
- 18 -  
. . .  
37. This protection is significant. The Responding Party  
cannot accurately assert it is operating a separate and  
unrelated business in the territory. Because of GII’s policy,  
there can be only one Goodwill in a territory. The naming  
conventions used by the various member Goodwills reflect  
this fact. Each organization is named after the region that  
they operate in.  
38. The Responding Party could not operate a business in  
the territory while it was occupied by TECNO. Cannibalism  
is prohibited by GII’s policy and those policies leave no room  
for a separate operation. There is one Goodwill for each  
territory. In the past, the Goodwill for the TECNO Territory  
was TECNO. At present, the Goodwill for the TECNO  
Territory is the Responding Party.  
The Union referred to the Board’s jurisprudence in that  
connection:  
40. In the past, the Board has considered the transfer of a  
licence to operate in a number of contexts. The TECNO  
Territory, in effect, is a licence to operate within the territory  
issued by GII or is extremely similar to one. The parallels  
are clear and the cases are instructive.  
The first decision the Union referred to was Thunder Bay  
Ambulance, supra. The applicant cited the following holding of the  
Board in paragraph 18 of the decision:  
In the view of the Board, the two essential elements of the  
predecessors’ businesses were transferred to the alleged  
successor. Firstly, the exclusive use of the assets owned by  
the Ministry of Health was transferred. Although the same  
licence or piece of paper was not transferred between the  
two, the Board has no hesitation in finding that the exclusive  
entitlement, as embodied in a Ministry of Health Licence,  
was transferred.  
The applicant’s argument went as follows:  
42. The Board should take two cogent facts from this  
decision. First, the transfer of the licence is a “sale” under  
the Act notwithstanding the fact that the specific piece of  
paper was not transferred and notwithstanding the  
involvement of the Ministry of Health. As such, the Board  
- 19 -  
should have no difficulty concluding that GII served as a  
necessary “link” in the transfer, notwithstanding the fact  
that it is a third-party actor.  
43. Secondly, the Board characterized access to the  
Ministry's assets through its licence as an “essential  
element” of the business. Presumably, the transfer of the  
licence alone would have been sufficient to protect the  
applicant’s bargaining rights.  
The second case relied on in this context was Vivace Tavern,  
supra, about which the Union submitted:  
44. In Vivace Tavern, the responding party purchased the  
Hollywood Tavern, with the intention of shutting it down and  
using the real estate and chattels to reopen another  
business, the House of Lancaster. The Board nonetheless  
found that a sale of business had occurred. At paragraph  
13, the Board placed significant weight on the acquisition of  
the Hollywood tavern's liquor licenses by the responding  
party:  
While the respondent may choose to disavow any  
interest in or attach any importance to the chattels  
which had been made part of the sale, and to  
characterize the entire transaction as merely the  
acquisition of a real property and location for his existing  
business, the conveyance documents and other facts  
purport the transfer to be more than a sale of assets.  
Whether or not the respondent acquired clear title to the  
chattels, their acquisition and use allowed the  
uninterrupted operation of the business from the time  
he acquired it on February 12th until closed as aforesaid.  
Of even greater significance, the Agreement of Purchase  
and Sale purports to convey to the respondent “Any  
right the vendor may have to the use of the name  
Hollywood Tavern” and “Any right and interest the  
Vendor has or may have in the existing liquor licenses  
of the Hollywood Tavern.” The respondent attached  
great importance to the licenses, particularly to the adult  
entertainment license, since no new entertainment  
licenses are being issued in Metropolitan Toronto and the  
respondent was dependent upon the predecessor’s  
previously acquired rights in having an application for  
such a license accepted. The transfer of the two liquor  
licenses avoided the delay of the normal waiting period  
for new licenses and allowed continuity of the business  
without interruption. [emphasis added by the Union]  
- 20 -  
45. Once again, the rights associated with the licence (in this  
case, the ability to serve liquor) are treated as fundamental  
to the business and assigned significant weight by the  
Board.  
The Union commented that the Board in Krush, supra, “placed  
significant weight on the transfer of a liquor licence”, quoting as follows  
from paragraph 17 of the decision:  
Moreover, the most critical elements of the business in this  
case were the premises and the liquor licence, both of which  
passed to Mr. Katsuras either directly or indirectly as a result  
of the sale. Mr. Katsuras suggested that the licence was  
unimportant to him since he could simply have applied for a  
new licence. However, he conceded that transferring the  
licence previously issued for the same location was faster,  
and it is apparent from the sequence of events, including the  
amendment to the purchase and sale agreement and the  
dispatch with which he applied for the liquor licence transfer  
after the sale closing, that the licence played a significant  
role in the transaction.  
The Union linked the “tavern cases” and the instant matter with  
reference to Goldman Group, supra, and the Board’s observation at  
paragraph 14 of that decision that it  
. . . will focus on the essential common components in the  
operation of both businesses. In the tavern cases, that  
common component was the licenses.  
Without those  
licenses, the new businesses could simply not operate as  
intended, notwithstanding all the other changes effected by  
the purchasers.  
The applicant concluded:  
The licenses are significant factors in the tavern cases  
because the taverns simply cannot operate as intended  
without being properly licensed. By a similar measure, the  
Responding Party cannot operate within the TECNO Territory  
at all without first being assigned that territory by GII.  
The Union then drew on cases in the long-term care industry,  
first citing Riverview Manor, supra, as a case in which the Board dealt  
with the sale of a nursing home property which was contingent on the  
Ministry of Health’s approval of a transfer of the long-term care licence.  
- 21 -  
The Board found that a sale of business had occurred. The Union relied  
on the following comments at paragraph 38 of the decision:  
Riverview obtained two major assets from Balmoral, the  
licence and the land.  
The transfer of the licence is  
particularly significant, because it led most Balmoral  
residents to move to Riverview Manor. (Both parties to the  
transaction contemplated residents would move from one  
home to the other, as evidenced by the contract that ties  
the date from which interest runs to the transfer of  
patients.) In this sense, the license is the essence of the  
businesses.  
The applicant added:  
51. It is also significant that the Board placed weight on the  
fact that the assignment of the license provided the  
purchaser with a shield from competition with unlicensed  
care homes. In a similar way, the assignment of the TECNO  
Territory (indeed, of any Goodwill territory) provides the  
Responding Party with protection from competition against  
[sic] other Goodwills.  
The applicant put forward the following about Caressant Care,  
supra:  
52. In Caressant Care, the Board considered another case  
where a purchaser received a licence to operate a nursing  
home from a defunct company. The Board in Caressant Care  
relied heavily on the decision in Riverview Manor. In that  
decision, Vice-Chair Mitchnick observed that “The Board [in  
Riverview Manor], in finding a “sale of a business” in that  
decision appears to have focussed on the importance of the  
licence, owing to the limited availability of such licences in a  
given geographic area, and the evidence before the Board  
in this case only tends to confirm that thinking.” The Vice-  
Chair went on to note that “There was not in the present  
case, the transfer of any land by the insolvent company  
Caressant Care, but as . . . Riverview makes clear, it is the  
licence that is the essence of the Nursing Home business.”  
The applicant referred to Shalom Village South, supra, a case  
that concerned the reassignment of a licence following the closing of a  
nursing home that had been taken over by the Ministry of Health.  
Shalom Village South was one of three successful applicants for licensing  
for the home’s former beds. The Union noted that Shalom Village South  
received nothing more than the licence to operate a portion of the beds  
- 22 -  
formerly in the original, defunct business and quoted the following from  
the Board’s decision finding a sale of business for the purposes of the  
Act:  
However, the only physical asset that passed between the  
Ministry and Shalom Village was the sixty licensed beds.  
There was no dispute that although Shalom Village  
contemplated the possibility of purchasing some of the  
equipment the Ministry had acquired during its tenure, it  
decided not to do so. Nevertheless, the Board has found a  
sale of a business under the Labour Relations Act where a  
license was the only asset transferred, because the license  
is the essence of the business in the nursing home industry  
and because it tends to bring with it a captive market of  
residents (Caressant Care, supra, Riverview Manor, supra).  
The Board noted that “a significant number of residents did transfer with  
the license”.  
In summary on the point, the applicant submitted:  
55. These cases set out clear principles which readily apply  
to the present matter. To summarize, where a license to  
operate is core to the operation of a business, the Board will  
assign significant weight to its transfer. It is not required  
that the same “license” be transferred and it is sufficient for  
the Board’s purposes to have a similar license issued. Where  
there is explicit discussion of a continuity of the license, as  
was the case in Shalom Village South, the Board will place  
weight on those discussions. Moreover, the involvement of  
a third party does not reduce the weight placed on such a  
transfer. In certain circumstances, where the license is the  
essence of the business, the transfer of the license alone  
constitutes a sale of business for the purposes of section 69  
of the Act.  
56. In the present matter, the Responding Party has  
received the right to operate within the TECNO Territory  
from a third party. The Responding Party’s rights within the  
territory are identical to those previously held by TECNO.  
The Responding Party would be unable to conduct business  
in the territory without the license and, therefore, it is  
essential to their business. Ultimately, each of these factors  
demonstrate a sale of business and, in the submission of the  
Applicant, the transfer of the license alone is sufficient to  
constitute a sale of business for the purposes of the Act.  
- 23 -  
The applicant then turned to its submission that the responding  
party’s operations in the territory were a continuation of TECNO’s  
business as, it maintained, OGL’s “businesses in the TECNO Territory  
were virtually identical to those operated by TECNO”.  
In that context, the applicant made the observation: “Because  
of these [GII-prescribed] signing practices, any passerby would not  
realize that the Goodwills in the TECNO territory are no longer operated  
by TECNO”. The Union argued: “In essence, the public reasonably would  
view both TECNO and the Responding Party as a single entity (i.e.  
“Goodwill”) and the signage and branding used by the Responding Party  
does nothing to dispel this conception”.  
The Union also pointed out that OGL had acquired the lease of  
the property at 1224 Dundas Street East in Mississauga at which TECNO  
had a store until 2016 or thereabouts.  
The applicant submitted: “By operating in the TECNO Territory,  
the Responding Party is serving the same customers that TECNO would  
have served. They are also receiving donations from the same market”.  
The Union concluded its submissions on this point as follows:  
67. The facts set out above plainly demonstrate a  
continuation of TECNO’s business.  
The cores of both  
TECNO’s business and charitable activities remain  
unchanged and, to the eyes of the Responding Party's  
customers and donors, the ownership of the business does  
not appear to have change [sic] either. The Applicant  
reiterates that this continuation of business was only  
possible due to the transfer of the TECNO Territory. In  
effect, the Responding Party is now doing exactly what  
TECNO did when TECNO held control of the territory.  
The applicant then addressed the proposition that both OGL and  
GII had a pre-existing relationship with TECNO. In particular, the Union  
noted the evidence that Ms. Quintyn “was intimately involved in the  
operation of TECNO both leading up to and after its collapse” and that  
her “objective following the collapse of TECNO had been to see  
Goodwill’s operations in the TECNO Territory continue.”  
From that, the applicant posited:  
74. In these circumstances, the considerations set out in  
Metropolitan Parking Inc. apply.  
The pre-existing  
- 24 -  
connection between the two Goodwills must colour the  
Board’s consideration of the facts before it. In these  
circumstances, the pre-existing connection between TECNO  
and the Responding Party renders it unlikely that the  
intention here was to create or expand a separate company  
that merely happens to perform the same work as TECNO.  
Ms. Quintyn knew what TECNO did and was dead set on its  
business continuing.  
Next, the Union submitted that OGL had received substantial  
goodwill related to the TECNO territory because it “is the sole entity  
entitled to use the ‘Goodwill’ name within the TECNO Territory” and it  
continued:  
75. This goodwill is transferred through two specific  
mechanisms. First, there is the goodwill associated with the  
“Goodwill” brand generally and, second, there is the goodwill  
associated with the TECNO in light of its bankruptcy.  
76. Goodwill is one of the largest thrift store brands in the  
world. It is also one of the most recognizable charities which  
accept donations of clothing and other goods. Like Q-Tip is  
to cotton swabs or Kleenex is to tissues, “giving to Goodwill”  
is a short hand in the province of Ontario and elsewhere for  
donating used items to charity.  
77. The use of the Goodwill brand, as discussed above,  
provides GII members, including the Responding Party, with  
significant benefits when they compete with other thrift  
retailers for both sales and donations.  
78. While the Responding Party had access to such benefits  
prior to its acquisition of the TECNO Territory, its ability to  
leverage those benefits was constrained by GII’s bylaws. It  
had free reign to benefit from the goodwill associated with  
the Goodwill brand but only within its own territory. It had  
no ability to benefit from that goodwill within the TECNO  
Territory because it had no ability to actually do business  
within the TECNO Territory. As such, the acquisition of the  
TECNO Territory also constitutes the acquisition of additional  
goodwill associated with the Goodwill brand generally.  
79. Moreover, the documentary evidence demonstrates that  
the public supported the return of Goodwill to the TECNO  
Territory.  
. . .  
- 25 -  
89. The way in which the Responding Party has sold itself to  
the public in the TECNO Territory is significant.  
The  
Responding Party intentionally made use of the bankruptcy  
of TECNO and its subsequent acquisition of the TECNO  
Territory to tell a story that paints itself in a positive light.  
Moreover, this is a story that plays upon opinions already  
present in the community and compels members of the  
community to both donate to and shop at the new stores.  
The fact that the media has covered the story demonstrates  
continued interest in seeing Goodwill return to the TECNO  
Territory.  
90. This specific type of goodwill is specific to the TECNO  
Territory. It is rooted in the good that TECNO did for the  
community and a desire to see that good work return. By  
acquiring the TECNO Territory and making itself the face of  
TECNO’s return, the Responding Party has benefited in both  
financial terms and in terms of its charitable activities in the  
community.  
Finally, the applicant turned to its argument that the structure  
of GII would permit it to frustrate a union’s bargaining rights by  
reassigning territory. The thrust of the submission was as follows:  
If the Board finds that a unilateral revocation and  
subsequent reassignment of territory is not a sale of  
business for the purposes of the Act, the Board will have  
handed GII the ability to unilaterally frustrate the bargaining  
rights of any Goodwill employees in the province of Ontario.  
This cannot be the intention of the Act and as such, the  
Union asserts that these public policy concerns must be  
considered in disposing of this application.  
The following paragraph appears to have been key to the  
applicant’s submission:  
94. The evidence shows that one purpose which the GII  
Board considered in disaffiliating TECNO is the applicant's  
rights to represent its employees. Ms. Nakamura made  
numerous comments behind closed doors blaming the  
applicant for TECNO’s failure. While Ms. Nakamura's opinion  
is entirely counterfactual, it took root with Ms. Quintyn and  
with GII.  
The applicant proceeded with an analysis of the various email  
communications and documents that supported the proposition that  
OGL prepared its application for the TECNO territory identifying union  
- 26 -  
avoidance as “the most pressing due diligence concerns and perhaps  
one of the biggest risks for Great Lakes moving forward”.  
The Union’s submission continued as follows:  
100. The application [by OGL for the former TECNO  
territory] goes on to advise that a labour lawyer has been  
retained to provide an analysis of the situation and to draw  
a reference to the Responding Party’s long history of “no  
union”. The application asserts that the Responding Party  
diligently practices union avoidance and that the Responding  
Party will advance in a “careful and timely manner” to  
attempt to avoid the Applicant.  
101. The basis for these comments was to convince GII that  
the Responding Party would be able to successfully evade  
the Applicant. This is bourn [sic] out be [sic] the fact that  
GII’s evaluation of the proposal explicitly considers the  
Responding Party’s ability to avoid unionization.  
102. The evidence plainly establishes that Ms. Nakamura  
placed considerable blame on the Applicant for TECNO’s  
failure. Whether or not this is true, both the Responding  
Party and GII have taken these assertions as fact. The  
ability to avoid unionization was explicitly considered in GII’s  
assessment of the proposal. It is transparent that anti-union  
animus was a factor in determining to disaffiliate  
Ms. Nakamura [sic] and in the decision to reassign the  
territory to the Responding Party.  
103. While anti-union animus is not a factor that the Board  
considers in applications under section 69, it is required to  
consider the purpose of section 69. That purpose . . .  
includes preventing the use of corporate or institutional  
mechanisms to frustrate bargaining rights. That is precisely  
what occurred in the present matter. GII essentially ended  
whatever possibility TECNO had for restructuring by  
disaffiliating it. It then transferred its territory to a different  
member. The Responding Party asserts that this action by  
GII ought to extinguish that [sic] Applicant’s rights. This  
cannot be what the legislation intended and flies in the face  
of the purpose of the Act.  
104. If the Board supports the Responding Party’s position,  
it runs the risk of providing GII with a mechanism by which  
it can unilaterally evade unionization. Moreover, it will  
provide other organizations with the structure that they can  
mimic to the same end. This cannot be what the Act  
- 27 -  
intended and, on this basis, the applicant's claim ought to  
succeed.  
The applicant concluded its submissions with the following:  
106. By acquiring the territory from GII, the Responding  
Party has acquired the very same rights that TECNO once  
held. In exercising those rights, it is operating the very  
same business that TECNO once operated. This is especially  
clear in light of the fact that the Responding Party was  
affiliated with TECNO prior to the transfer of the territory.  
Moreover, in expanding its operation, it has acquired  
significant goodwill related to both the Goodwill brand and  
to its specific role in rebuilding the TECNO territory.  
107.  
Perhaps more significantly, this matter raises  
substantial policy concerns. It is crystal clear that one  
element of the GII Board's decision to transfer the TECNO  
Territory was anti-union animus directed specifically at the  
Applicant. The word “sale” is given an expansive and non-  
exhaustive definition in the Act in part because section 69 is  
intended to act as a shield for unions against such unfair and  
unilateral actions. The Board must determine whether the  
transfer of the TECNO Territory constitutes a “sale” for the  
purposes of the Act.  
The Board cannot accept a  
determination which would frustrate the purposes of the Act  
by allowing the unilateral frustration of a trade union’s vest  
[sic] right to represent employees.  
The Responding Party’s Submissions  
In replying to the applicant’s submissions, the responding party  
referred to many of the cases cited by the Union and added the  
following: United Association of Journeymen and Apprentices of the  
Plumbing and Pipefitting Industry of the United States and Canada, Local  
46 v. 1013644 Ontario Limited c.o.b. as Cartwright Plumbing, 2017  
57734 (ON LRB); I.A.T.S.E. , Local 299 v. Cineplex Odeon Corp.,  
1998 27800 (MB QB); and Canadian Union of Brewery and  
General Workers, Component 325 v. Molson Coors Canada (Toronto  
Brewery) and Sherway Warehousing Inc. and Sherway Logistics Inc.,  
2017 14504 (ON LRB).  
The responding party argued that none of the traditionally  
recognized criteria for a “sale of business” were met on the evidence  
presented:  
- 28 -  
53. There is [sic] no indicia of a sale or transfer of a  
business, or even part of a business, in this case. The  
evidence demonstrates that TECNO, after struggling  
financially for many years, ceased operating. OGL, which  
had been in the same business for over 70 years, then began  
to expand its operations into the Toronto area three years  
after the closure of TECNO. OGL's ability to operate these  
Toronto locations was not derived from TECNO in any way.  
54. There is no evidence nor has the Applicant alleged —  
that OGL purchased, acquired, or otherwise received  
TECNO’s operating name, accounts receivable, customer  
lists, existing contracts, inventory, employees, licensing  
agreements, business processes, or that it entered into any  
restrictive covenants with TECNO.  
55. OGL's ability to carry on business in the Unassigned  
Territory was not derived from TECNO, but rather from its  
experience and infrastructure built up over more than half a  
century of OGL's operations.  
56. The Board should not be distracted by the fact that  
TECNO and OGL both operate under the name “Goodwill”.  
There was no transfer of goodwill (as an asset); OGL did not  
acquire its operating name from TECNO; nor did its  
operating name change following its expansion into the  
TECNO territory. When it expanded into the Toronto area,  
OGL did not use signage to indicate that TECNO “was back”  
or “under new management”. It opened a boutique store, a  
community store, and three donation centres, styled using  
its own sleek brand standards and the Goodwill brand that  
OGL has consistently used, a brand that as the applicant  
noted in its closing submissions is one of the most  
recognizable in the world.  
57. Nor was there “goodwill” in the traditional sense to  
acquire from TECNO; the business was moribund, and its  
collapse was widely publicized in mainstream media. As  
stated by Ms. Quintyn, TECNO’s goodwill was so tarnished  
that OGL went into the Unassigned Territory in order to  
“rebuild”. It was essentially “starting from zero” in the  
territory.  
58. The Applicant also adduced no evidence that OGL  
services the same customers as TECNO. Given the lengthy  
hiatus  
between  
TECNO’s  
disaffiliation  
and  
OGL’s  
commencement of operations in Newmarket and  
Mississauga (three and four years, respectively), it is  
- 29 -  
unlikely that any of TECNO’s former customers would have  
come to shop at OGL’s stores because of any previous  
loyalty to TECNO. Rather, those customers are more likely  
to have moved on to other thrift stores in the area during  
this time.  
59. Nor did OGL assume any of TECNO’s real property  
leases.  
In one case, OGL operates from the same  
Mississauga location as a former TECNO store; however, this  
lease was negotiated as a new tenancy with a different  
landlord after the property changed hands, and the location  
choice was driven entirely by the fact that it was what was  
available in an extremely competitive Toronto real-estate  
market. Four different tenants occupied the space between  
TECNO and OGL.  
The second branch of the responding party’s argument was that  
the process GII followed in assigning territories was not sufficient to  
create a “sale of business”.  
The responding party submitted:  
61. Where an existing business grows or expands its  
operations, the focus of the factual inquiry is on what flowed  
from the predecessor’s business to the successor’s business  
and whether there is enough evidence to conclude that the  
successor’s ability to carry on its business is derived from  
what is acquired from the predecessor.  
62. This analysis does not change where there is an alleged  
transfer of a license to operate, as the Applicant suggests.  
Even where an alleged sale of business involves such a  
transfer, the Board has still considered and been guided by  
whether the other indicia of a sale of business were present  
(none of which exist in this case). To paraphrase what the  
Board asked in Ottawa Carleton Lifeskills, the relevant  
questions are: What did OGL really acquire from TECNO?  
What did it really acquire from GII? And, what did it bring  
to the table itself?  
OGL relied on Ottawa-Carleton Lifeskills, supra, to a substantial  
degree, arguing as follows:  
65. In Ottawa-Carleton Lifeskills, the Board held that the  
successors acquired the license and premises to operate  
semi-independent living services to persons with disabilities  
from the predecessor employer. However, in finding that no  
- 30 -  
sale occurred, the Board was guided by the fact that the  
successors were entities that were already in the business  
of providing support services of the kind provided by the  
predecessor, and that they brought their substantial  
capacity to operate the newly acquired premises to the  
acquisition. The Board noted that even where there is  
intervention from a third party intermediary, there still must  
be a transfer of a going concern between the predecessor  
and the successor to find a sale of business:  
24.  
The applicant is correct that the intervention of a  
third-party intermediary through which the transfer is  
affected [sic] does not preclude a finding of a sale of  
business.  
However, whether or not there is an  
intermediary in the transaction, in order to find a sale of  
business the transfer must still be from the  
predecessor to the successor, and the fact that the  
alleged purchaser may wind up with a similar business  
to the predecessor does not constitute a sale if the  
business did not actually come from the  
predecessor. [all emphasis added by the responding  
party]  
66. The Board went on to stress that the transfer of the  
license was not from the predecessor but from the Ministry,  
and that the successor did not create the business “out of  
the ashes” of the predecessor:  
33.  
The same analysis applies to the applicant's  
argument that OCL and OFP acquired TELCI’s license —  
or authorization to carry on its business at the former  
TELCI locations. Even accepting that the agreements  
between OCL and OFP and the Ministry to assume the  
operation of the buildings and to provide the requisite  
services to tenants is akin to a license, the transfer of  
the license was not from TELCI to OCL and OFP,  
but from the Ministry.  
34.  
In Riverview relied upon by the applicant,  
the nursing home license was sold by the  
predecessor to the successor as part of an overall  
transaction that included the transfer of numerous  
other aspects of the predecessor's business.  
Those other aspects of the business depended on  
the license in order to be used for their purpose,  
and in this sense the license was the essence of  
the business.  
- 31 -  
35.  
In Thunder Bay Ambulance, however, the Board  
did find a transfer of license even where the successor  
had applied for and obtained its own license from the  
Ministry.  
There is, therefore, some merit to the  
applicant’s argument that when the Ministry authorized  
OCL and OFP to assume operation of the former TELCI  
residences, this constituted a similar transfer of license  
from TELCI to OCL and OFP. However, in Thunder  
Bay Ambulance, the board also found that the  
business  
at  
issue  
was  
essentially  
an  
organizational business (since the assets of the  
business, and in particular the ambulances, were  
always and remained the property of a third  
party), and that in addition to the license, there  
was a transfer of management and the people who  
carry out the work. The organizational capacity  
plus the license was essentially what constituted  
the business. The instant case is very different,  
where OCL and OFP already possessed the  
organizational capacity to carry out the business.  
They are not businesses that were created out of  
the ashes of TELCI and licensed to perform its  
work. Rather, TELCI ceased to carry on business,  
and the Ministry was obligated to find new  
contractors who were qualified and capable of  
looking after the residents in the buildings which  
TELCI was no longer servicing. In my view, this is  
the essence of the transaction, rather than a  
transfer of authorization to carry on the business.  
[all emphasis added by the responding party]  
67. As noted above, the Thunder Bay Ambulance Services  
Inc. case does not assist the Applicant's argument, as far  
more than a license was transferred between the parties. In  
securing the license, the successor employer also was  
provided with the assets necessary to operate the business  
(i.e. the ambulances), as it had done for the predecessor.  
All employees and managerial experience also transferred to  
the successor. Accordingly, the successor obtained all the  
necessary assets to set up the parallel business, allowing for  
the continuum of the predecessor's business.  
This is  
markedly different from the instant case, where OGL used  
its own existing assets, or independently acquired new ones,  
to set up its Toronto locations.  
68. The Applicant has also relied on several cases  
concerning liquor licenses transfers in support of its  
argument that the grant of a purported “license” from GII to  
- 32 -  
OGL alone is sufficient to ground a sale of business.  
However, all these cases are distinguishable as they involve  
the transfer of traditional assets in addition to the grant of  
a license. . . .  
69. Similarly, the nursing home cases relied on by the  
Applicant are distinguishable because of the captive market  
that accompanied the transfer of the license. Key to the  
Board's analysis in those cases was the effect the transfer  
of the license had on the successor. In those cases, the  
successor acquired not only the license to operate the  
nursing home, but a captive market of customers (i.e. the  
residents) who needed continued accommodation. As such,  
the practical effect of the successor’s acquisition of the  
license was the significant transfer of most of the residents  
from the predecessor home to the successor home.  
Additionally, in all of those cases some of the employees of  
the predecessor continued to work for the successor  
employers.  
70. The territory grant from GII provided OGL with nothing  
more than the opportunity to establish undertakings in the  
Unassigned Territory. There was no “captive market” to  
acquire, and certainly nothing analogous to the relationship  
between the residents of a nursing home and the licensee of  
that home.  
As acknowledged by the Applicant, OGL  
competes with many organizations, including other charities  
and retailers such as Wal-Mart, for its customer base. On  
that basis alone, Riverview Manor, Caressant Care and  
Shalom Village South are not applicable to this situation.  
The third proposition advanced by OGL was that there was no  
basis for the inference of anti-union animus or a scheme to circumvent  
the Act.  
71. Section 69 does not give the Board the discretion to find  
that a sale of business has occurred where there are no  
indicia of a sale. Either a sale of business has occurred, or  
it has not. This is in stark contrast to s. 1(4) which grants  
the Board the discretion to find that one or more persons  
are one employer for the purposes of the Act, “where there  
is clear evidence of the mischief it was intended to avoid”.  
OGL argued that there was no evidence of an effort to carry out  
a fraudulent or sham transaction to avoid the transfer of bargaining  
rights as might have been suggested in Pavao Meats. Rather, it  
contended:  
- 33 -  
74. OGL did not attempt to facilitate TECNO’s bankruptcy or  
closure, or its disaffiliation, to acquire the Unassigned  
Territory.  
To the contrary, Ms. Quintyn and OGL did  
everything they could to keep TECNO operational. OGL  
provided a loan to TECNO so that it could hire a Trustee in  
Bankruptcy to restructure the company. If OGL desired to  
take over TECNO’s business, it would have had no reason to  
assist the restructuring, which, if successful, would have  
meant TECNO could continue as a going concern.  
75. The fact that OGL may have considered the fact of  
TECNO’s relationship with the Applicant, and the potential of  
transfer [sic] of bargaining rights, in its business planning is  
not sufficient to infer the type of wide-ranging fraudulent  
schemes suggested by the Applicant.  
The Board has  
previously held that, absent unlawful conduct in its efforts  
to avoid unionization, it will not put significant weight to a  
party's desire to manage it its affairs to avoid a finding of a  
sale of business. An employer’s preference or desire to  
remain non-union is not illegal, and its statements to that  
effect cannot have the effect of creating a sale of business  
from whole cloth where no other basis to reach such a  
conclusion exists.  
76. The GII structure does not prevent a sale of business  
from occurring and bargaining rights transferring to the  
successor employer. In fact, when OGL and EKL merged,  
the bargaining rights of EKL's unionized employees  
transferred to OGL. This merger took place after OGL  
acquired the Unassigned Territory. There is no evidence to  
suggest that GII pushed back or tried to prevent this merger  
because of [sic] some of the EKL's employees were  
unionized. [emphasis in the original]  
In concluding its submissions, the responding party asserted:  
77. Throughout Canada and the world, Goodwill Members  
operate as independent, incorporated charities serving their  
local communities. Like other corporations, some thrive,  
while others fail and enter bankruptcy. They expand their  
operations, merge with one another and, where their  
employees are unionized, those bargaining rights may  
transfer.5 In short, there is nothing unique about Goodwill,  
5
I note that the only evidence of this having occurred was in respect of Unifor Local 200 and  
OGL’s merger with EKL in 2019.  
- 34 -  
its structure, or how it operates, and the Board’s traditional  
approach to sale of business applications is well-suited to  
answer the question: was a business or going concern  
transferred from TECNO to OGL?  
78. OGL acquired nothing from TECNO. It acquired the right  
to operate in the Unassigned Territory through an  
application process, and its subsequent expansion into the  
Unassigned Territory relied on OGL's well-established  
structure, management, equipment, employees and  
accumulated skills, ability, know-how and contacts. There  
are no indicia of a sale or transfer of business in this case  
because one simply did not occur.  
79. Finally, the Applicant's argument suggests that public  
policy considerations require a finding of a sale of business  
where it may otherwise not apply because the mere  
possibility that the structure of the GII could allow a party  
to circumvent bargaining rights is an unacceptable state of  
affairs. The Applicant must rely on this argument given the  
absence of any evidence suggesting that the lack of  
traditional indicia of a sale of business is due to a fraudulent  
transaction or other mechanism designed to avoid the  
application of the Act.  
However, this “public policy”  
argument is not grounded in the law; is an inappropriate  
attempt by the Applicant to expand its bargaining rights;  
would represent an unprecedented expansion of s.69 of the  
Act if successful; and for all those reasons, should not be  
accepted. [emphasis in the original]  
The Applicant’s Reply Submissions  
The applicant asserted that OGL’s contentions that its ability to  
operate in the TECNO Territory was not derived from TECNO in any way  
and that none of the traditional indicia of a transfer were present in this  
case were counterfactual.  
As for the responding party’s not acquiring its operating name  
from TECNO, the Union noted:  
It cannot be denied that both TECNO and the responding  
party under operated under the name “Goodwill”. The  
“Goodwill” name and all rights associated with it flow from  
GII and, as per GII’s bylaws, the use of the name is linked  
to the assignment of territory. Prior to the assignment of  
the TECNO Territory, the Responding Party had the right to  
use the “Goodwill” name within its own territory.  
- 35 -  
Subsequent to the assignment of the TECNO Territory, the  
Responding Party acquired the right to use the name within  
the TECNO Territory.  
The applicant suggested that OGL “asserts that it is a fully  
separate corporation that only happens to use an identical name” and  
countered: “While they exist under separate corporate forms, they are  
effectively a single operation”.  
As for the responding party’s argument that it did not enter into  
a restrictive covenant with TECNO, the Union noted that the limitations  
GII placed on territories and competition had effectively provided the  
benefit of restrictive covenants to TECNO and now to OGL in that  
territory.  
The applicant argued that it “is patently untrue” to assert “that  
there was no goodwill to acquire with respect to TECNO”. Rather, it  
claimed that there was: “Substantial evidence . . . before the Board to  
demonstrate that the Responding Party repeatedly leveraged goodwill  
to TECNO in order to both establish and promote its new operations”.  
The Union concluded the point with: “It is simply not credible for the  
Responding Party or Ms. Quintyn to assert that there was no remaining  
loyalty to the Goodwill brand in the TECNO territory” and, referring to  
Pavao Meats, added: “In any event, the Board has held in the past that  
while formal goodwill may vanish when a business becomes defunct,  
other advantages related to the prior operation remain relevant to the  
Board's analysis where the relationship between the two businesses is  
touted for advertising purposes”.  
The applicant asked the Board to draw the inference that the  
responding party is providing substantially the same services as TECNO  
to substantially the same market as did TECNO.  
Referring to  
Accomodex, the Union argued:  
The Board relied on the new owner’s access to the same  
customers and held that a sale had occurred. It stated that  
“[the purchased assets] are now being used by the new  
owner, in much the same way as before, to supply the same  
general services, to much the same general market, and at  
least some of the same customers. The Board also found  
that, in light of the access to the same market, Accommodex  
had received goodwill from the predecessor employer.  
Referring to Knechtel Foodland, supra, at paragraph 58 a  
case involving the acquisition of a grocery store that had been closed  
- 36 -  
for a period of six months before being reactivated under a different  
brand — the Union offered the following from the Board’s comments on  
the subsistence of goodwill:  
Although loyalty and support might have dissipated over the  
period of the closure (in Accomodex the period of the closure  
was nearly 18 months), the nature of the service, the  
continuity in the use of assets and particularly the use of the  
same location are such that the character of the business  
remains the same. The nature of the work performed and  
the skills utilized in the subsequent manifestation of the  
business are the same as those which obtained previously.  
The assets acquired ultimately from Loblaws are being used  
by the Knechtel store “in the same way as before, to supply  
the same general services, to much the same general  
market, and at least some of the same customers”  
(Accomodex, 77).  
On the responding party's second argument that the  
assignment of the “TECNO licence” does not constitute a sale of sale of  
business, the applicant noted that the responding party relied heavily  
on the Ottawa-Carleton Lifeskills case and asserted that “All cases relied  
upon by the responding party are distinguishable and that Ottawa-  
Carleton Lifeskills Inc. was wrongly decided”.  
The applicant’s analysis of Ottawa-Carleton Lifeskills disputed  
the propriety of reliance on Metropolitan Parking, supra, and the “going  
concern” standard, and quoted from Accomodex to identify the evolution  
of the Board’s approach to these issues. In particular, the Union argued:  
19. Accommodex remains the leading case with respect to  
the application of section 69. The appropriate test is set out  
at paragraph 59 of the Board’s decision:  
Accordingly, in determining whether there has been a  
sale within the meaning of the Act, the Board attaches  
particular significance to the nature of the work  
performed in, and by, the business, before and after the  
alleged transfer. If the nature of the work performed  
subsequent to the transfer is substantially similar to the  
work performed prior to that transaction and if the  
employees, or types of employees, are the same this  
would normally support an inference that there has been  
a transfer of a business or part of a business within the  
meaning of section 64.  
- 37 -  
20. The key focus of the Board must not be on whether the  
business was transferred as a going concern, but rather it  
must be on whether the nature of the business has been  
substantially altered by the transaction. As set out in  
paragraph 67:  
In all of these cases, there was a transfer of a distinct  
part of the predecessor’s configuration of assets or  
capacity to carry on business, and no material change in  
the character of the work performed by the employees  
within that asset framework. There was a continuation  
of the work performed, the essential attributes of the  
employment relationship, and the skills of the  
employees; and, but for section 64, the established  
bargaining and collective bargaining rights would have  
been lost. This was the mischief to which section 64 is  
directed, and the Board was satisfied on the evidence in  
each of these cases that it should be applied.  
The applicant commented that the Accomodex decision was not  
provided to the Board in Ottawa-Carleton Lifeskills and asserted; “In  
point of fact, the parties in that case agreed to the application of the  
going concern test”. The Union’s reference was to the following  
paragraph in the Ottawa-Carleton Lifeskills decision,  
8. Both parties relied on the Board’s overall “instrumental”  
approach to the interpretation of this section as set out in  
the oft-cited decision in Metropolitan Parking Inc., [1979]  
OLRB Rep. Dec. 1193 (“Metropolitan Parking”).  
In  
Metropolitan Parking the Board canvassed the breadth of  
the terms “sale” and “business”, and concluded that in order  
to find a sale of business, there must be a transfer of a  
“going concern”, which is something more than a collection  
of assets or the work of the predecessor. However, what  
constitutes the essential elements of business that  
constitute a “going concern”, can be highly variable  
depending on the nature of the business.  
In critiquing Ottawa-Carleton Lifeskills, the applicant noted that  
the Board had made repeated references to whether the predecessor  
was a “going concern” and concluded:  
24. In placing significant emphasis on whether or not the  
predecessor employer was a going concern, Vice-Chair  
Gedalof applied the wrong test. Had the Vice-Chair applied  
the appropriate test and focused on the continuity of the  
business, as set out in Accommodex, he would have held  
- 38 -  
that the transfer of both an authorization to perform work  
and the related properties constituted a sale of business.  
25. It is also noted that Vice-Chair Gedalof did not address  
whether the license in question was a “business” or a “part  
of a business” in the context of the continuing care industry.  
This issue remains unexamined because the Vice-Chair held  
that no transfer could have occurred where the predecessor  
business was no longer a concern. This question is a  
fundamental component of the section 69 analysis and is  
one which the Vice-Chair was required to consider. The fact  
that it went uncommented on further demonstrates a failure  
by the Vice-Chair to properly apply the Board’s  
jurisprudence.  
26. Moreover, the Vice-Chair’s comments distinguishing the  
Board’s prior decisions in Riverview and Thunder Bay  
Ambulance are uncompelling.  
27. In Ottawa-Carleton Lifeskills Inc. the licence holder  
relinquished its licence and the Ministry of Health issued an  
identical licence to the responding parties. That licence  
included certain real property. There is no doubt that the  
Ministry's purpose in issuing the new licence was to fill the  
void left by the predecessor employer. In Riverview Manor,  
the responding party purchased real property directly from  
the predecessor employer and applied to the Ministry for a  
transfer of the licence. The result is the same in both cases  
the responding party is performing the same work in the  
same locations with the same clients as the predecessor  
employee [sic]. Given the Board's pronouncements in  
Accommodex, there is no concrete basis for these extremely  
similar cases to lead to different results.  
28. Similarly, Vice-Chair Gedalof distinguishes the Thunder  
Bay Ambulance decision on the basis that the business in  
question was established “out of the ashes” of the  
predecessor while the businesses in Ottawa-Carleton  
Lifeskills Inc. were not. This again evidences is a misplaced  
focus on whether or not the predecessor was a going  
concern.  
29. The key focus for the Board’s analysis should be on the  
substance of the transfer, as per the Board’s decision in  
Accommodex. Vice-Chair Gedalof’s focus on the status of  
the predecessor employer is misplaced and, as such, he  
reaches an incorrect conclusion. As the Board has said in  
numerous decisions, how the transaction occurs (i.e. the  
- 39 -  
form of the transaction) is of less significance than what the  
transaction accomplishes (i.e. substance of the transaction).  
With all respect, Vice-Chair Gedalof places undue weight on  
the form (i.e. the reissuing of the license by the Ministry)  
and fails to consider the substance of the transaction (i.e.  
the reassignment of all rights and obligations by the Ministry  
to the successor employer).  
30. Moreover, the facts of the present matter underscore  
that the TECNO territory was not unassigned for a significant  
period of time.  
The Responding Party submitted its  
application for the [sic] within 47 calendar days. During that  
period, the bankruptcy and liquidation of the TECNO estate  
was not yet concluded. While TECNO cannot be said to have  
been an active business at the time, if it had been revived  
by outside investors, there is little doubt that section 69 of  
the Act would apply.  
The applicant responded to OGL’s argument that its  
involvement in the former TECNO territory was an expansion of its own  
long-standing business as follows:  
31. In any event, the decisions relied upon by the Employer  
with respect to the expansion of existing operations are  
distinguishable in the present matter or do not otherwise  
assist the Employer.  
32. First, it must be noted that the fact that a successor  
business is expanding its operation by acquiring a part of  
(or, indeed, all of) another business does not create a bar to  
the application of section 69. There is no separate test  
where such an expansion occurs. As per Sofina Foods at  
paragraph 77, “Fundamentally, the question always returns  
to whether or not there are a sufficient constellation of  
elements from the predecessor employer that can be found  
in the successor employer to conclude that a sale of a  
business has occurred.” Ultimately, it is incumbent on the  
Board to recognize that one business may purchase another  
for the purpose of expanding its own operations. The  
assertion that the expansion of an existing business should  
frustrate bargaining rights is fundamentally inconsistent  
with the purpose of the Act. The Responding Party's  
assertion that a separate or modified test applies is simply  
inaccurate.  
The Union noted that the Board in Sofina Foods held that the  
successor employer was not bound to that applicant's collective  
- 40 -  
agreement; however, in doing so, the Board was said to have placed no  
weight on the fact that the successor employer had expanded its  
business. Rather, the Union contended, “the Board found that the work  
being performed was sufficiently distinct from the work previously  
performed by the predecessor employer”. Here, the applicant noted,  
OGL did not establish any significant distinction between the work  
performed at TECNO and the work now performed in the former TECNO  
territory by the responding party.  
The applicant continued in its reply submissions to distinguish  
the present circumstances from those in Woodland Store Fixtures,  
supra, Germag Construction, supra, and Northern Precast, supra. Here,  
it argued, “the TECNO territory is fundamental to the Responding Party's  
ability to operate within the TECNO territory” as it “represents a series  
of rights and privileges necessary for the Responding Party to do  
business” and: “It cannot have opened its new operations absent the  
authorization to do so from GII”.  
The Union concluded this aspect of its reply as follows:  
45. Ultimately, in the various “expansion” cases relied upon  
by the Employer, the Board is attempting to determine  
whether the item that passed between the purchaser and  
the seller was fundamental to the business, or whether it  
was simply a collection of useful assets. In the present  
matter, it is uncontested that if the Responding Party had  
not received the TECNO Territory, it would have been  
prohibited from opening the operations in question. As  
such, the matter is more closely parallel to the licensing  
cases relied upon by the Applicant.  
46. Furthermore, to the extent that any of the cases cited  
by the Responding Party stand for the proposition that a  
business must be a going concern for a sale of business to  
be affected, those decisions are wrongly decided for the  
reasons set out in Accommodex. To the extent that any of  
the cases cited by the Responding Party stand for the  
proposition that an expansion of an existing business is a  
bar to the application of section 69, those decisions are  
wrongly decided for the reasons set out in Sofina Foods and  
in Pavao.  
In the final segment of its reply submissions, the applicant  
returned to what it referred to as the evidence of an attempt to  
circumvent the Act.  
- 41 -  
While maintaining that there was an ample foundation for its  
assertion that there was a basis for inferring anti-union animus —  
referring to the expressed concerns of both the responding party and  
GII the applicant submitted in its reply:  
48. In any event, the Union has conceded that anti-union  
animus is not a factor to be considered in an application  
under section 69. However, as asserted in the Union’s  
submissions at first instance, the Board must consider the  
purpose of the Act and apply the Act accordingly. . . .  
49. The fact that the Responding Party's actions were  
motivated by anti-union animus is does [sic] not, ultimately,  
conclusive in a section 69 application.  
However, in  
determining whether section 69 applies to the transaction in  
question, it is incumbent on the Board to consider the  
purpose of the Act and of the section. The fact that GII was  
able to frustrate the Applicant’s bargaining rights is  
significant because avoiding such frustration of rights is the  
purpose of section 69. It is not ultimately important whether  
the reason that GII disaffiliated TECNO was bona fide or  
whether it was motivated by anti-union animus. What is  
important is that this has occurred once and that it can occur  
again.  
50. The Responding Party asserts that it did not attempt to  
facilitate TECNO’s closure or disaffiliation. These assertions  
are beside the point. GII undertook steps to disaffiliate  
TECNO, essentially driving the last nail into TECNO’s coffin  
and ending any possibility for restructuring. If the transfer  
of the TECNO territory is insufficient to transfer bargaining  
rights (as the Responding Party asserts), then GII did not  
only end TECNO’s opportunity for restructuring; it also  
ended the Applicant’s vested right to represent these  
employees. The potential for GII to do the same again ought  
to be a significant concern for the Board.  
The applicant ended its reply submissions as follows:  
54. Ultimately, the theme of the Responding Party’s  
submissions is that they received nothing from TECNO. This  
is plainly untrue they received a significant territory that  
included a bundle of rights, privileges and associated  
goodwill. The fact that this transfer was effected by GII  
while TECNO was in receivership is of limited importance.  
- 42 -  
55. The question for the Board is whether there is some  
concrete package of assets which constitute a business. The  
Responding Party asserts that the Board must determine  
what the Responding Party “really received” from TECNO.  
What it received was the TECNO Territory and all of the  
rights which attached to it. These rights form the core of  
any Goodwill operation and no Goodwill operation exists  
without an assignment of territory. In the context of GII’s  
structure, significant weight must attach to these rights.  
The fact that the Responding Party did not also receive  
material assets products, fixtures staff, is ultimately  
insignificant in comparison with what they did receive.  
Analysis and Decision  
Having regard for the circumstances in which this matter arose  
and in which it has been litigated, the following observations (referring  
to what is now section 69) in the Accomodex, supra, analysis are  
particularly apposite:  
69. The issue of employer successorship arises out of a  
seemingly endless variety of factual settings, with each new  
case presenting some of the factors considered relevant to  
the resolution of prior cases while raising other materially  
altered, entirely omitted, or newly-added facts which  
arguably should affect the decision on the merits. Indeed,  
much of the confusion which attends successorship results  
from the facility with which each case can be distinguished  
on its facts from all former cases; and, quite frankly, the  
results in some of the cases are difficult to reconcile -  
reflecting, among other things: the quality of the evidence  
before the Board in particular cases (especially before and  
after the passage of what is now section 64(13)); the quality  
of the argument; and the evolution of the Board's  
jurisprudence as various panels, over the years, have  
assessed in new factual settings, the mischiefto which  
section 64 was directed.  
70. But to dismiss the difficulty so lightly would be to  
disregard the fundamental differences inherent in the  
various business contexts in which the successorship issue  
arises. Factors which may be sufficient to support a "sale of  
a business" finding in one sector of the economy may be  
insufficient in another. In some industries, a particular  
configuration of assets - physical plant machinery and  
equipment - may be of paramount importance; while in  
others it may be patents, "know-how", technological  
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expertise or managerial skills which will be significant.  
Some businesses will rely heavily on the goodwill associated  
with a particular location, company name, product name or  
logo; while for other businesses, these factors will be  
insignificant. The Labour Relations Act applies equally to  
primary resource industries, manufacturing, the retail and  
service sector, the construction industry and certain public  
services provided by municipalities and local authorities, and  
in each of these sectors the nature of the business  
organization is little different. Yet in each case section 64  
must be applied in a manner which is sensitive to both the  
business context and the purpose which the section is  
intended to accomplish. To cite but one unusual example:  
in Riverview Manor, [1983] OLRB Rep. Sept. 1564  
(application for judicial review dismissed February 5, 1985),  
the Board found that a licence to run a nursing home  
business was a critical part of that business, to which  
bargaining rights could attach, even though the purchaser  
of the licence later invested a substantial sum to build its  
own nursing home across town. In that highly-regulated  
business, the licence was viewed by the Board in that case  
as the key asset - as evidenced by the substantial sum that  
had been paid for it.  
71. Finally, it is important to recognize that not only do the  
cases arise in a variety of different contexts so that direct  
comparisons are difficult, but the law itself has not been  
static.  
The Presence of Anti-Union Animus  
One of the less than frequently occurring issues raised by this  
matter is the effect or role of the alleged anti-union animus shared  
and demonstrated, the Union says, by GII, OGL, Ms. Quintyn and  
Ms. Nakamura.  
In its submissions, the responding party suggested that the  
Union’s argument rested at least in part on the proposition that the  
Board was required to act and to deal with “fraudulent schemes” or a  
“fraudulent transaction”. Those assertions misrepresented the position  
advanced by the Union. Its argument was not premised on allegations  
of any party’s committing fraud or acting fraudulently.  
As noted in Enercare, supra, at paragraph 360, this proceeding  
is not susceptible to a determination framed only in terms of an unfair  
labour practice:  
- 44 -  
Further, as emphasized by the Board at paragraphs 8 and 9  
in its decision in PCL Constructors Eastern Inc., [1995  
9915 (ON LRB)], in making a determination under either  
subsection 1(4) or section 69, improper motive is not an  
issue.  
8.  
In sections 1(4) and 64 [now section 69] and the  
Board's jurisprudence, the focus is on trade union  
collective bargaining rights; and more specifically, on  
protecting a trade union's bargaining rights from being  
affected by corporate or commercial activities. Neither  
section 1(4) nor section 64 is an unfair labour practice  
provision.  
Both are concerned with the effects of  
business decisions or dealings on established bargaining  
rights, rather than with the motivation for such decisions  
or dealings. Sections 1(4) and 64 apply equally to  
commercial attempts to escape from bargaining rights  
and to BONA FIDE business transactions which are not  
improperly motivated but which nevertheless erode  
established bargaining rights. As the Board pointed out  
in KNK Limited, [1991] OLRB Rep. Feb. 209, section 1(4)  
is not a penalty provision. Instead, it operates to allow  
the Board to deal with business transactions from a  
labour relations perspective without the constraints  
imposed by the rules of common or commercial law. The  
same is true of section 64.  
9.  
Accordingly, it does not matter whether or not  
any of the business or corporate dealings which have  
brought the responding parties to where they are today  
were improperly motivated.  
Indeed, the applicant recognized that limitation, but  
nevertheless insisted on the relevance of its allegations, positing in its  
submissions and reiterating in its reply:  
While anti-union animus is not a factor that the Board  
considers in applications under section 69, it is required to  
consider the purpose of section 69. That purpose . . .  
includes preventing the use of corporate or institutional  
mechanisms to frustrate bargaining rights.  
In its reply submissions, the applicant also asserted:  
94. The evidence shows that one purpose which the GII  
board considered in disaffiliating TECNO is the applicant's  
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rights to represent its employees. Ms. Nakamura made  
numerous comments behind closed doors blaming the  
applicant for TECNO’s failure. While Ms. Nakamura's opinion  
is entirely counterfactual, it took root with Ms. Quintyn and  
with GII.  
The applicant would have it that TECNO and Ms. Nakamura —  
and GII by extension — blamed the Union for TECNO’s financial  
predicament in 2016. The Union was certified in December 2012 —  
barely three years before the demise of TECNO and could not have  
accounted for financial difficulties said to have beset TECNO for the ten  
to twelve years as documented in the communications generated by  
Ms. Quintyn and Ms. Nakamura in 2016. Moreover, there was nothing  
to establish that any opinion Ms. Nakamura had about the applicant’s  
being responsible in part for the downfall of TECNO was counterfactual.  
The Union could not have been responsible for any difficulties  
encountered by TECNO prior to its arrival, but the evidence does not  
permit a conclusion that it had no influence on the negative experiences  
of TECNO after its certification.  
While it might be fair to assert, as the applicant did, that  
Ms. Nakamura “placed considerable blame on the applicant for TECNO’s  
failure”, there was no evidentiary basis for the tied submission that  
anti-union animus was a factor in determining to disaffiliate  
Ms. Nakamura [sic]” or TECNO.  
There was no evidence to establish that OGL participated in any  
scheme designed to subvert the applicant’s bargaining rights through  
TECNO’s disaffiliation. In particular, there is nothing in the evidence to  
suggest that OGL contributed to the demise of TECNO or to suggest its  
having done so with a view to acquiring what would become an  
unassigned territory.  
Furthermore, there was no material evidence of GII’s process  
or considerations in reaching the decision to end TECNO’s affiliation and,  
therefore, no evidence to support the proposition that the applicant was  
a consideration in GII’s decision to disaffiliate TECNO.  
Mr. Gibbons’ communication within GII in which he mentioned  
TECNO’s having “a very strong union” and its “not garnering the  
cooperation they needed” fell a considerable distance short of  
constituting evidence of the GII’s board considering the applicant’s  
rights to represent employees as a factor in ending TECNO’s affiliation.  
- 46 -  
In the result, GII’s action in proceeding with disaffiliation was  
not shown to have been motivated by anti-union animus. Moreover, the  
disaffiliation of TECNO could not constitute a “sale of business” for the  
purposes of the Act. Without more, any objection the Union might have  
taken to that decision alone would have required action otherwise than  
under section 69.  
Early in 2016, TECNO presented a scenario in which it had  
closed all operations, it had let go all employees other than the CEO, its  
board had resigned en masse, and (as demonstrated by the subsequent  
bankruptcy) its liabilities in the millions exceeded its assets sixfold. GII  
was confronted with a situation in which it had little choice other than  
to act, and disaffiliation was not shown to be an unwarranted reaction  
on its part. I note that notwithstanding or perhaps because of the  
evidence of the efforts of OGL and Ms. Quintyn to assist Ms. Nakamura  
and TECNO after January 16, 2016, the applicant did not attempt to  
establish that TECNO could have been resuscitated.  
GII’s decision to install OGL as the Goodwill in what had been  
the TECNO territory brings a different analysis to bear.  
There was no evidence of any competition for what had been  
the TECNO territory. OGL was the lone applicant and there was no  
suggestion that any other possible applicant for the territory had been  
ignored or “scared off”.  
Accordingly, there was no basis for a  
determination that the territory had been assigned to OGL rather than  
to any other entity as a manifestation of anti-union animus.  
Even so, in the absence of any exculpatory evidence, the Board  
must conclude from what was put forward by the responding party that  
GII proceeded with the assignment of the territory sharing OGL’s  
demonstrated commitment to ensuring to the fullest extent possible that  
its presence as the Goodwill in that territory would not expose it to the  
applicant or to any unionization.  
The evidence about the assignment was limited to the  
testimony of Ms. Quintyn who did not participate in the decision making  
by the GII board and to GII documents to which Ms. Quintyn could not  
speak. In the result, the evidence stopped short of establishing that the  
territory would have been granted to OGL but for the confidence of GII  
and OGL that the responding party was well-positioned and had a  
planned course of action designed to thwart the Union and unionization  
should the challenge befall it.  
- 47 -  
There was no room for any doubt about the desire of OGL and  
GII to avoid the need for OGL to recognize and deal with the applicant  
in the territory previously entrusted to TECNO. The proposal put forward  
by OGL reiterated the objective of its continuing to avoid unionization.  
In particular, OGL set out a scheme by which, inter alia, it would delay  
resumption of operations as a Goodwill and then pick a second opening  
location to test the efficacy of its avoidance strategy.  
Notwithstanding the observation in OGL’s March 8, 2016 “Board  
Recommendation/Decision Overview” documents that OGL was “moving  
forward with hast [sic]” in part because Goodwill’s competitors were  
“already engaging in the pursuit of donations” and “the least amount of  
lag time, the more the effect of competition is mitigated”, OGL’s first  
entry into the market previously reserved to TECNO was delayed for  
three years. I return to this consideration below.  
It would offend labour relations common sense for OGL to deny  
its anti-union animus while setting out a structured “union avoidance”  
scheme and announcing to GII and its own board members that the  
union issue is “the most pressing due diligence concern and perhaps one  
of the biggest risks for Goodwill Industries Ontario Great Lakes moving  
forward”. Indeed, OGL’s posture in this matter was less inclined to  
denying the presence of that motivation than to arguing its irrelevance  
to the disposition of the Union’s application.  
In any event, OGL did not explain how that “biggest risk” was  
unrelated to its being obliged to recognize the Union and engage with it  
in collective bargaining for a renewal agreement.  
The applicant argued that a purpose of section 69 is to prevent  
“the use of corporate or institutional mechanisms to frustrate bargaining  
rights” and that the Board should not allow the actions of GII in  
disaffiliating TECNO and transferring the territory to OGL to result in  
their extinguishing the applicant’s rights. The responding party agreed  
in its submissions that section 69 exists “to protect the union’s  
bargaining rights against employer schemes designed to subvert those  
bargaining rights”.  
The Union stopped short of contending that the anti-union  
animus demonstrated by OGL and GII would suffice to preserve its  
bargaining rights in respect of the territory. However, it did submit that  
denying GII and OGL that reward avoiding the delivery of such a  
result and precluding the operation of the processes of TECNO’s  
disaffiliation and OGL’s receipt of affiliation for the territory would be  
- 48 -  
consonant with the objective of section 69 to protect a trade union’s  
bargaining rights in the face of business machinations over which the  
Union has no other control and which would frustrate those rights if  
allowed by the Board. There is, in my view, substantial and persuasive  
merit in the Union’s analysis.  
In this situation, GII had and exercised a controlling hand. It  
determined that TECNO was no longer to be supported and subsequently  
accepted OGL’s application that throughout its development and its  
presentation had as a key feature the proposition that OGL could  
successfully beat back the Union and overpower any attempt at  
unionization. Simply put, given the depth and detail of the data required  
to be submitted by OGL in support of its application for the territory, its  
repeated references to “the union issue”, “the union concern”, and OGL’s  
plans to continue its record of not having had “a brush with a union”  
spoke eloquently to the significance attached by OGL and GII to the  
“union issue” as a relevant factor in the awarding of affiliation and thus  
the former TECNO territory.  
Had GII and OGL not shared the objective of effecting the  
transfer so as to avoid the impact of section 69 and the applicant’s  
bargaining rights, one would not have expected either of them to have  
accorded the issue of successorship or unionization the status of “the  
most pressing due diligence concern and perhaps one of the biggest  
risks for Goodwill Industries Ontario Great Lakes moving forward”?  
If GII and OGL had not pursued that objective, I would have  
expected to have heard evidence from the decision makers at OGL and  
at GII to the effect that the Union’s characterization of the process and  
the motivation for it was inaccurate, unfounded, and undeserving of  
consideration. Without that direct evidence, there was no basis on  
which to ground a finding that the disposition of the territory to OGL  
would have proceeded in the absence of the assurances — and GII’s  
acceptance of and reliance upon the assurances of OGL’s “ability to  
mount a successful response to potential labour issues” and to  
“overpower” any attempt at unionization.  
In those circumstances, I conclude that to an undefined  
extent, but without doubt OGL was accepted as a worthy applicant  
for its professed ability to avoid the Union, supported by a plan put  
forward and expected to make that outcome more likely to be achieved.  
In the result, the responding party did not rebut the proposition that the  
transaction itself was one which was designed to defeat the rights of the  
Union and thus ran contrary to the purpose of section 69.  
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That is to say and I so find below having considered all of the  
authorities and submissions advanced by these parties a sale of  
business within the terms and dictates of section 69 is made out, as it  
must be. The identification of the disposition the transfer of the  
territory from TECNO and to OGL by GII as a sale of business for the  
purposes of the Act is more readily arrived at and seen to be congruent  
with the objective of section 69 where, as here, the transaction is tainted  
by the documented goal of the corporate parties to deny the Union the  
right to continue to represent employees in the subject business, the  
very rights the section was introduced to safeguard.  
The second step in the process of disposition here was not  
simply the grant of a territory in which a successor might operate a  
business or its business. Rather, it was the grant of that singular,  
critical, and exclusive asset to a party with a plan for the territory that  
was predicated, at least in part, upon the elimination of rights the Act is  
framed to preserve.  
OGL Acquired a Business  
As the applicant argued, OGL acquired significant rights that  
provide it with a captured and well-protected market for Goodwill  
services and custom in an area described as accounting for thirty  
percent of Goodwill’s scope in Canada, drawing on a population of  
almost ten million people in 2016.  
OGL sought to distinguish its circumstances from those in some  
of the Board’s decisions involving “captive markets” evidenced by the  
predictable movement of nursing or retirement home residents with the  
transfer of the business. The responding party suggested that it was  
unlikely that people who had frequented TECNO’s operations “would  
shop at OGL’s stores because of any previous loyalty to TECNO” and  
that it was “more likely” that those customers would have “moved on to  
other thrift stores in the area” in the period between the disaffiliation  
and OGL’s opening its stores. There is no doubt that both observations  
are valid. OGL was not presented with a “captive market” comparable  
to those in Riverview Manor and Shalom Village South for examples;  
however, it was granted the position as the only entity to which a  
population base of ten million or more could turn as an operator with a  
brand the responding party described as “one of the most recognizable  
in the world”. The operators of nursing homes and many other  
businesses are not afforded a scope of opportunity that comes close to  
matching that obtained by OGL in the former TECNO territory.  
- 50 -  
The applicant’s position set out in the following submissions,  
repeated here for convenience, is incontestable:  
33. The assignment of the TECNO Territory confers upon the  
Responding Party certain rights.  
These rights are of  
significant financial value. The Responding Party has an  
exclusive right to operate as “Goodwill” within the territory  
and to use the trademarks associated with the Goodwill  
brand within the territory. Goodwill is one of the largest and  
most recognizable thrift store brands worldwide. The use of  
the Goodwill brand in the association with GII provides a  
competitive advantage to the Responding Party as against  
other thrift brands in the area. As Ms. Quintyn noted during  
her testimony, the Responding Party competes with other  
thrift retailers for more than just customers. They also  
compete for grants, for real estate and for donations.  
Ms. Quintyn also agreed that the responding party faces a  
degree of competition from other retailers like Wal-Mart.  
34. Moreover, the territory permits the Responding Party to  
operate without competition from other Goodwills. This is a  
significant distinction between GII and more traditional  
franchise operations. GII protects the territory for each of  
its members and as such members do not compete with  
each other. This includes competition for funding, for  
employees, for real estate and for sales. Instead, Goodwills  
operate solely within their territories and cooperate with  
other members with respect to advice, technology and best  
practices.  
OGL has functioned as a Goodwill in its original territory for  
more than seventy years and in the former TECNO and EKL territories  
since 2019. In all three territories, OGL has engaged in endeavours that  
were intended to provide and did provide people in need with material  
assistance for which Goodwill is well known.  
Fundamental to OGL’s business as a Goodwill — in common with  
others, including TECNO before its demise are its donation centres  
and thrift stores. Those generate substantial revenues and, no doubt,  
result in the public’s association of “Goodwill” with those facilities, if not  
all of the good works Goodwills undertake.  
TECNO operated a number of those centres and stores in which  
bargaining unit employees represented by the applicant worked. When  
OGL commenced business in the former TECNO territory in 2019 it did  
- 51 -  
so with a public-facing donation centre and boutique store in  
Newmarket, adding another centre and store in Mississauga one year  
later, and a third location on Dufferin Street in Toronto. There was no  
suggestion that the business carried out in those facilities was materially  
different from what would have been observed in the TECNO facilities  
until they were shuttered in 2016 or that the work done by TECNO’s  
bargaining unit employees differed in any respect from that done by  
workers in the three GTA facilities OGL has opened. In the main,  
donations were and are received, sorted, displayed, and sold. To that  
extent, at least, there was merit in the applicant’s submission that the  
responding party’s operations in the territory were a continuation of  
TECNO’s business as some of OGL’s “businesses in the TECNO Territory  
[might be said to be] virtually identical to those operated by TECNO”.  
The Union has also argued that it was counterfactual to assert  
that OGL’s “ability to operate in the TECNO Territory was not derived  
from TECNO in any way”. TECNO's presence in the territory for several  
decades would almost certainly have been a factor in establishing the  
Goodwill name in communities in which it operated stores; however, on  
the case presented by the parties, the significance of any goodwill  
attributable to TECNO per se is far from measurable and might have  
been much less than the Union would claim.  
There was also no suggestion in the evidence or in the material  
referred to in this proceeding that the public has or had any familiarity  
with either TECNO or OGL by name or otherwise as entities distinct  
from other Goodwills or separate from their existence as Goodwill  
operations. The rules enforced by GII required Goodwills to adhere to  
signage and other protocols that would support the applicant’s  
submission that “any passerby would not realize that the Goodwills in  
the TECNO Territory are no longer operated by TECNO”.  
I would go further and note that there was no foundation in the  
evidence for anyone to suggest that a passerby would ever have known  
that a Goodwill operation in any location was a TECNO property or was  
now a property of OGL. Indeed, there was nothing to lead one to think  
that a passerby would have any reason to be curious as to who or what  
— other than “Goodwill” — conducted business at a location of either of  
the two.  
There was also no evidence to suggest that any loyalty to the  
Goodwill brand was attributable to or an asset of TECNO upon its  
disaffiliation and bankruptcy, and certainly nothing to support the notion  
that TECNO transferred any of its goodwill to GII or OGL. In its  
- 52 -  
submissions, the Union referred to OGL’s “making itself the face of  
TECNO’s return”.  
The proposition was baseless.  
There was no  
foundation for the implicit suggestion that the public had noted the  
departure of TECNO rather that the closing of the Goodwill operation  
with which some or many residents had been familiar.  
The common theme in various letters OGL submitted to GII in  
support of its territory application in March 2016 was the revival or  
rebuilding of Goodwill in the locales of interest to the letter writers.  
Those supportive letters made no reference to TECNO, other than to  
note its demise. That Mayor Tory of Toronto and others wrote to  
welcome the anticipated return of Goodwill by way of OGL’s application  
did not appear as a reflection of TECNO’s legacy or a function of the  
writers’ identification of particular attributes of OGL, but as an  
appreciation of the contribution a revived Goodwill operation was  
expected to make, in keeping with standards the umbrella organization  
and its constituent agencies adhered to internationally.  
In arguing for the recognition of TECNO’s subsisting goodwill,  
the applicant noted that OGL had acquired the lease of the property at  
1224 Dundas Street East in Mississauga at which TECNO had carried on  
business. The Union largely ignored the fact that those premises had  
been occupied by several businesses in the interim and that the Goodwill  
signage had been removed in or about February 2016, some four years  
prior to OGL’s taking up that location. In the absence of direct and  
different evidence, those facts alone suffice to refute the Union’s  
contention that, by returning to the former Dundas Street location, OGL  
drew specifically on goodwill generated by TECNO.  
Indeed, there was no evidence that specific locations were  
significant to the potential success of the responding party in advancing  
the Goodwill business in the territory. That said, OGL’s leasing the  
specific Mississauga location approximately four years after being  
granted the territory adds to the assessment of its commitment to union  
avoidance as evidenced by its plan to proceed with a staged reopening  
and a design for the choice of locations of the first stores it was to  
operate.  
The responding party sought to explain the protracted delay in  
opening its operation in its new territory with reference to several issues  
and without mention of its documented plan to stall first openings. A  
tight real estate market was a factor cited in that context; however, the  
Dundas Street location to which it returned the Goodwill operation in  
2020 was available no fewer than four times after TECNO’s demise. The  
- 53 -  
real estate situation in the GTA might have been limiting, but in light of  
that evidence the state of the real estate market seems to have been  
an excuse offered for OGL’s delayed return to Mississauga without  
acknowledging the impact of its intentional process for union avoidance.  
Given that OGL’s plan in 2016 called for a sequence of events in which  
the second location would be proximate to a former TECNO site and that  
the very location TECNO had leased was available as often as it was, I  
have difficulty accepting the evidence as put forward by the responding