Sale by a Trustee in Bankruptcy– Transmission of Rights and Obligations – Labour Code – Lack of Consent
Marie Audren and Emmanuelle Rolland for the Defendant Banque d'Amérique du Canada (Bank of America of Canada)

The Plaintiff in these proceedings bought l'Hôtel L'Émérillon in 1994, following the transfer of assets belonging to the corporate owner. The sale was completed with Éric Métivier, the authorized trustee who was acting on behalf of the owner's secured creditors. Following the sale, the Union representing the Hotel's employees was successful in the Court of Appeal on the subject of the application of Section 45 of the Labour Code. The Court confirmed transmission of the rights and obligations of the preceding employer and declared that the sale was not a forced sale. The Plaintiff claimed damages from the Defendants on the basis that they had hidden the true identity of the seller. The Plaintiff declared that it was under the impression that it was buying the Hotel from the authorized trustee with regards to the assets of a bankrupt corporation, which would have allowed it to invoke the exemption in Section 45 of the Labour Code. It added that it would not have bought the Hotel had it known that the authorized trustee was in fact acting on behalf of secured creditors (the Defendant Banque Nationale de Paris and Banque d'Amérique du Canada (Bank of America of Canada)), and that the sale would be to the exclusive advantage of the secured creditors. The Plaintiff also claimed damages from the lawyers from whom it sought for legal advice.

The court found that no offer to purchase mentioned as a condition that be buyer not the bound by the Union certification or the collective agreement. Moreover, during an out‑of-court examination, the principal shareholder and officer of the Plaintiff acknowledged that he had not met with the Seller before the signing of the contract. The court pointed to contradictions in his allegations that demonstrated that he was aware of the risk of Union involvement at the time of the sale. The Court dismissed the proceedings and concluded that the Plaintiff knew it was buying assets from the secured creditors. As for the lawyers, the Court concluded that they performed their duties correctly.