Law Times

PAGE 8 NEWS February 27, 2012 • Law Times Target's union battles coming to Ontario BY UYEN VU For Law Times cation at the British Columbia Labour Relations Board is successful, Target might end up with an obligation to rec- ognize the bargaining rights at one of the 135 Zellers stores across the country that it plans to convert to its name. The United Food and Commer- T cial Workers Union represents 125 workers at a Burnaby, B.C., store. The UFCW also represents workers at six Zellers stores in Ontario acquired by the Minnesota-based chain. The com- pany has sold one of them to Sobeys, says UFCW spokesman Kevin Shim- min. The company plans to convert the remaining unionized stores into Target stores, he adds. Once that happens, the union will file similar successorship applications at the Ontario Labour Rela- tions Board. Successorship-rights provisions exist in labour rela- 'What decision-makers look at is whether or not elements of the predecessor business have been transferred to the successor,' says Beth Traynor. arget Canada Co.'s foray into the Canadian retail market may be putting its union-free status at risk. If a union appli- was nothing more than a real estate transaction. "We didn't purchase the business, the employees or the technol- ogy. It's strictly a real estate agreement," Target Canada spokeswoman Lisa Gib- son told The Canadian Press. According to news reports, Target intends to terminate the contracts of current staff and require those who want to work for it to reapply for the job. Shimmin notes that since No- vember, Zellers workers have been receiving six-month notices of their terminations. Mark Wright, a labour lawyer at Sack Goldblatt Mitchell LLP, says that as an outside observer, he thinks the union is in the right to argue that Target is a successor company. "To suggest somehow that the leasehold transfers from Zellers to Target are really just real estate trans- actions and not a sale of a business is kind of like some- thing out of 1984. It's completely absurd," says Wright. "This is a $1.8-billion deal where Target buys all of tions and employment standards laws across Canada. They preserve collective-bargaining rights when a busi- ness is sold, in whole or in part. A sale of business in these provisions is interpreted broadly to include a lease, trans- fer or any other manner of disposition. As the Supreme Court of Canada has noted, courts and labour boards tend to interpret "disposition" as any mode of transfer so that bargaining rights remain intact regardless of what le- gal form a transaction might take. Target is arguing that the $1.8-billion deal it announced in January 2011 to acquire 220 Zellers leasehold interests Zellers' leases in order precisely to get Zellers' infrastruc- ture to give it inroads into the retail business in Canada. They're clearly buying a business. It cannot be character- ized as a mere real estate transaction with no labour rela- tions consequences." The central question in much of the case law on suc- cessor rights and obligations tends to be whether or not a sale of business has taken place, says Beth Traynor, a Lon- don, Ont.-based employment lawyer with Siskinds LLP. "What decision-makers look at is whether or not ele- ments of the predecessor business have been transferred to the successor. And those elements are not just assets or employees or customers or contracts. It's a more organic look than that," says Traynor. "The case law looks for a go- ing concern. Has there been a transfer of a going concern to the successor?" To take as an example the case law in a similar busi- ness area, the supermarket industry, much of the analysis would look at the customer base of the predecessor and the successor stores. Are the flyers and discount programs of the successor store aimed at the predecessor's clientele? Do the people in the community in question tend to travel distances in order to seek out a specific grocery chain or is the location of the store such a critical factor that custom- ers will continue to patronize it no matter what company operates it? The analysis tends to be very fact-sensitive. Traynor notes with interest that Zellers itself was once the subject of a successorship application when one of its stores moved to a Kenora, Ont., location previously oc- cupied for decades by Woolco. In that 1995 application, then-labour board vice chairman Kevin Whitaker ac- cepted that there was no transaction between Zellers and Woolco's parent company, Woolworth. The latter had simply decided to give up that lease, and it was the land- lord who had independently pursued Zellers as a new ten- ant. When Zellers moved into that space, it was empty of any merchandise or fixtures. Whitaker found that the only aspect of Woolworth's business that made its way into the hands of Zellers was the physical location of the premises. He also accepted the argument that Zellers would have been just as successful in any other location in Kenora as long as it had parking, road access, and visibility. "Where the only tangible thing disposed of by the pre- decessor employer is the location, the significance of the location for the successor employer is of central impor- tance. In a small regional centre where the successor will have no local competition . . . if a consumer in Kenora wishes to patronize a department store, that consumer will presumably go to wherever the one department store is located." LT BY KENDYL SEBESTA Law Times T rying to legislate civility is not only impractical but also impossible, says Supreme Advocacy LLP partner Eu- gene Meehan. Making the comments during the Ontario Bar Association's Institute 2012 conference ear- lier this month, Meehan argued the province and other organizations like the Law Society of Upper Canada are "not doing a very good job" when it comes to reining in unruly lawyers. Following a number of civility concerns a few years back, the law society created a proto- col allowing members of the public and other legal professionals to make complaints about lawyers they felt were being uncivil or rude both in and out of court. But Meehan said those measures haven't prevented some lawyers from continuing to be rude in court. "I have several examples of lawyers behaving badly in court that have happened to me person- ally," said Meehan. "I once got a two-page letter at- tacking several other lawyers at once. My favou- rite line, which always seems to accompany these types of letters, is the 'I'm shocked and appalled' bit. I find that shocking and appalling." Meehan added that while he isn't saying law- yers should act unkindly to rude colleagues in re- turn, he believes they should change their strategy when encountering incivility rather than relying on guidelines that he feels may not be working. "You cannot change the way others behave," he noted. "All of us have a little black book of lawyers that we know to look out for when we find ourselves up against them in court. You can't change those people but you can change your strategy and how you deal with them." To do that, Meehan suggests lawyers "be strategic" but "avoid being civil for the sake of civility" by knowing when to call someone's bluff and when to stay quiet. "Remember, lawyers have a long memory and judges have an even longer one," he said. "Judges talk about cases and lawyers in the lunchroom. They know who is prepared and who is rude. It impacts the way they look at you and not in a good way." Speaking at the conference, Ontario Superior Court Justice Susan Healey echoed that senti- ment. She noted judges are aware of which law- yers are particularly rude and which are not. "I would have to say some of the most shocking things I've seen are lawyers who in- terrupt judges while they are talking and law- yers who are rude to other counsel or show up late," said Healey. "We don't say things very oſten as judges and if we do interrupt to ask a question, it's usually so that we can learn some- thing about the case that is important. Particu- larly when one lawyer is making a long rant against another, I'm more worried about that person's blood pressure at the moment than anything they are saying." LT 'You cannot change the way others behave,' says Eugene Meehan. www.lawtimesnews.com Judge shocked at rude lawyers in court

• Cover