[191] The analysis of cases falls into various categories, which are often combined or
intermingled. For instance, some cases are “location” cases, others “common corporate
control” cases. Some are “asset transfer” cases, others “know how” or “key person” cases.
Some contain elements of several categories.
[192] The cases have frequently been discussed by arbitrators in relation to the type of business
transferred. Arbitrators have noted that some factors will impact analysis of certain types
of businesses more than in others. For instance, grocery store cases and hotel cases (see
HERE, Local 75 v Accomodex Franchise Management Inc., [1993] OLRB Rep 281
("Accomodex") typically have a strong emphasis on the importance of location and
purpose, while other cases have greater focus on “goodwill” transferred or not, or other
factors such the transfer of trade names, or logos or “brand”. In some cases, the analysis
reflects more on the types of customers, or the type of assets transferred.
[193] For example, in the Zellers case (see also Adams at 8:2, p. 9), Zellers locations were taken
up by the United States retailer, Target. The Union in that case alleged Target was a
successor company because they had acquired many of Zellers’ physical locations. Target,
in its approach to the marketplace, sought to distinguish itself from the Zellers “brand”
and brought its own business model, systems and know-how to the locations.
[194] Target was already successful as a business operating in the United States and entered
into the Canadian market by acquisition of Zellers’ leases. The result was that despite
some transfer of business information, and Zellers leaving the market altogether, the
distinction between brands and systems was sufficient so as not to constitute a transfer
of a business for successor rights purposes. Despite the similarities, Target ran a different
business to that of Zellers.
[195] We have considered the various cases supplied by the parties and in some instances the
cases referenced in those cases. Each has characteristics that help to identify if a
“transfer” of a “business” has taken place. Different businesses have different
characteristics, therefore Boards have emphasized or weighted various factors
differently. To be clear there is no “bright line” rule that divides the cases neatly. Boards
are called upon to balance the various interests, the purpose of successor rights
legislation, the Union’s rights, the Employer’s rights, their respective duties, all in the
context of the individual case.
[196] In each instance, the question is whether there is a continuity of the business, or a transfer
of a “going concern” or alternatively is it a case where one enterprise ceased operations,
and another—a competitor—came in and began or expanded their operations at a pre-
existing, but purpose-built facility.
[197] This case turns on the Board’s conclusion that there was not a transfer of a “business,”
rather there was a successor lessee of a property used as a shipyard that included some
fixtures and equipment. In this case, one business, Aecon, left the shipbuilding industry
and another, CME, a former competitor, continued its ongoing and successful business
from the same facility left by Aecon. CME, with several locations across Canada, continued