2011 NBCA 41, 2011 NBCA 41

COURT OF APPEAL OF NEW BRUNSWICK 124-10-CA CANADIAN UNION OF PUBLIC EMPLOYEES APPELLANT SYNDICAT CANADIEN DE LA FONCTIONPUBLIQUE APPELANT - and - - et - JAMIE HACHEY, STACY HUMPHREY, DEANSECORD and PETER HASLETT RESPONDENTS JAMIE HACHEY, STACY HUMPHREY, DEANSECORD et PETER HASLETT INTIMÉS Canadian Union of Public Employees v. Hachey etal., 2011 NBCA 41 Syndicat canadien de la fonction publique c.

Hacheyet al., 2011 NBCA 41 CORAM: The Honourable Justice Robertson The Honourable Justice Quigg The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Quigg L’honorable juge Green Appeal from a decision of the Court of Queen’sBench: August 27, 2010 Appel d’une décision de la Cour du Banc de la Reine: Le 27 août 2010 History of Case: Historique de la cause : Decision under appeal: 2010 NBQB 319 Décision frappée d’appel : 2010 NBQB 319 , 2010 NBBR 319 Preliminary or incidental proceedings: Court of Queen’s Bench: 2010 NBQB 266 Procédures préliminaires ou accessoires : Cour du Banc de la Reine : 2010 NBQB 266 , 2010 NBBR 266 Appeal heard: March 8, 2011 Appel entendu : Le 8 mars 2011

Judgment rendered: May 5, 2011 Jugement rendu : Le 5 mai 2011 Reasons for judgment by: The Honourable Justice Robertson Motifs de jugement : L’honorable juge Robertson Concurred in by: The Honourable Justice Quigg The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Quigg L’honorable juge Green Counsel at hearing: For the appellant: David A. Mombourquette and Daniel P.L. Leger For the respondents: Harold L. Doherty Avocats à l’audience : Pour l’appelant : David A. Mombourquette et Daniel P.L. Leger Pour les intimés : Harold L. Doherty THE COURT The appeal is dismissed with costs of $3,500.

LA COUR Déboute l’appelant, qu’elle condamne à des dépens de 3 500 $. The judgment of the Court was delivered by ROBERTSON, J.A. I. Introduction [ 1 ] A careful sifting of the 751-page appeal record and the parties’ submissions leaves us with the essential facts and issues underscoring the litigation. What we find is a local union which had severed its contractual ties with its parent union and a dispute over ownership of the assets held by the local at the time of the break-away. The parent union claimed ownership pursuant to the parent’s “Constitution” and the local’s “subordinate” status.

It is common ground and accepted law that the Constitution embodies the terms of their contractual relationship. The local responds that, as the contractual arrangement was nothing more than an “affiliation”, its members are the beneficiaries of the assets. However, the application judge was not required to rule on the matter of ownership. He had to decide only on whether to grant an order, under Rule 41 of the Rules of Cour t, confirming the parent union’s private appointment of a receiver. Following a five-day hearing, the application judge refused to grant the confirmatory order.

I agree with his decision, but not with his reasons which are as diverse as the grounds of appeal.

[2] My reasoning for upholding the application judge’s decision is straightforward. The general role of a receiveris to take possession and sell the assets belonging to a third party, or to manage the affairs of a business. As this case does not involve themanagement of a business, we are left to consider the role of the receiver in terms of seizing and selling assets.

If, however, there is agenuine dispute over the ownership of the assets, it would be improper to grant an order confirming the appointment of a receiver madeby one of the parties claiming ownership, in the absence of special or exceptional circumstances. Correlatively, courts do not appoint, orconfirm the appointment of, receivers who seek only the authority to gather information relating to the identification and ownership ofassets. In the present case, the parent union no longer seeks possession of the assets, but only an order authorizing the gathering of relatedinformation.

This is why a Rule 41 order cannot issue. Regrettably, the underlying litigation followed a tortuous route and, hence, I amobliged to retrace historical facts, issues and arguments. II. Factual Matrix and Issues [3] This appeal is from a decision refusing to confirm the appointment of a receiver under Rule 41 of the Rules ofCourt. The appellant, the Canadian Union of Public Employees (“CUPE”), alleges several errors on the part of the application judge. Ifestablished, those errors displace this Court’s obligation to accord deference to his exercise of discretion.

One of the errors stems fromthe judge’s decision to introduce secondary scholarly material into evidence: a published book tracing the origins and the history of theunion which represents the interests of the police officers of the City of Saint John. As it happens, the respondents are the executiveofficers of the Saint John Police Protective Association, Local No. 61, Canadian Union of Public Employees. As to the legalramifications of judges using their own historical research to supplement a record, see R. v. Peter Paul (1998), (NBCA), 196 N.B.R. (2d) 292, [1998] N.B.J.

No. 126 (C.A.) (QL). [4] Other alleged errors stem from the application judge’s failure to recognize that CUPE significantly narrowedthe scope of the powers to be vested in and exercised by the receiver after filing its application. Several of the judge’s findings werebased on the relief originally sought and, therefore, cannot stand. Also, the application judge applied the tri-partite test established inRJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17 (QL), as theframework for deciding whether to appoint a receiver under Rule 41.

Neither party referred to that framework during the applicationhearing, nor is there an underlying action to support the understanding that an application to confirm the appointment of a receiver is aninterlocutory proceeding. If there had been an underlying proceeding, a motion for the appointment would have been in keeping with s.33 of the Judicature Act, R.S.N.B. 1973, c.

J-2, and the matter decided on the basis of the “just or convenient” test set out in that section.In the circumstances, it is simpler for this Court to undertake a de novo analysis as there are no findings of fact or credibility in issue. [5] The following factual analysis is based on the appeal record properly before this Court. The history of theunion, which has been representing the interests of police officers with the City of Saint John, commences in 1918. For purposes ofdeciding this case, we need only begin with the year 1945. On April 10, 1945, the “St.

John Federal Police Protective Association, LocalNo. 61” was certified by the New Brunswick Wartime Labour Relations Board, seated in Fredericton, as the bargaining representativefor police officers employed by the City. Today, the police officers are employed by another distinct legal entity, the Saint John Board ofPolice Commissioners. [6] By 1957, the union dropped the word “Federal” from its name and the word “St.” was changed to “Saint” toaccord with the proper spelling of the City.

In 1963, Local 61 entered into discussions with the appellant, the Canadian Union of PublicEmployees, headquartered in Ottawa, to become a “chartered local”. On June 10, 1964, the national union granted charter status to theSaint John union (“Local 61”). The letterhead of the local reads as follows: Saint John Police Protective Association “The Oldest Police Union in the World” Local No. 61 Canadian Union of Public Employees C.L.C. [7] The relationship between CUPE and its locals is governed by CUPE’s Constitution. Some of the relevantprovisions are as follows.

Article 13.1 provides “Local Unions subordinate to the Canadian Union of Public Employees shall beestablished and chartered as provided in

Article III of this Constitution” (emphasis added).

Article 13.2 states that upon dissolution of achartered local union all funds and properties revert to CUPE and are to be held in trust for up to five years. If at the end of the period thelocal is not conforming to the constitution, the property vests in CUPE.

Article 13.3(

a) goes on to state: “All chartered Local Unions shallbe governed by the Constitution of the Canadian Union of Public Employees and by the by-laws set out in Appendix “B” of thisConstitution.”

[ 8 ] Appendix “B” is titled “By-Laws Governing Chartered Affiliates ” (emphasis added). By-law B.1.1 provides that: “Eligible persons meeting the requirements of

Article 3.1 may establish a Local Union … [and] the charter shall be issued”. By-law B.6.1(

d) provides that every member is guilty of an offence against the Constitution who “[a]dvocates or attempts to bring about the withdrawal from [CUPE] of any Locals or any members or groups of members”. By-law B.1.2 provides that: “No Local Union may be dissolved while there are twelve members in good standing therein who desire to continue its existence”. The same by-law also provides that: “The funds of the Local Union cannot be divided among individual members and can only be utilized for valid Local Union purposes”.

By-law B.1.3 provides that: “Upon dissolution of any Local Union, all its properties and assets, including books and records and funds that are remaining in the treasury after all legitimate debts have been paid … become the property of the Canadian Union of Public Employees.” [ 9 ] Under CUPE’s Constitution all local unions must adopt by-laws that are approved by CUPE and the local by- laws must be consistent with CUPE’s by-laws.

Section 15 of Local 61’s by-laws state that: “these by-laws are always subordinate to the CUPE Constitution as it now exists or may be amended from time to time” (emphasis added). Note, I have emphasized the words “subordinate” and “affiliates” because those words are generally treated as legal terms of art, the significance of which is discussed below. [ 10 ] From 2002 to 2008, the relationship between CUPE and Local 61 deteriorated. Local 61 believed that it was not receiving the services to which it was entitled and eventually refused to forward funds to the national office.

At present, the indebtedness is around $288,000. In 2010, the members of Local 61 decided to form another union, the Saint John Police Association. On May 27, 2010, the respondent Jamie Hachey, the President of Local 61, issued a notice to bargain with the employer, the Saint John Board of Police Commissioners. On May 28, 2010, he submitted an application for certification to the New Brunswick Labour and Employment Board on behalf of a different bargaining agent, the Saint John Police Association.

On July 9, 2010, the New Brunswick Labour and Employment Board approved the application and substituted the Saint John Police Association as a party to any collective agreement in effect between Local 61 and the Board of Police Commissioners. [ 11 ] CUPE learned of the certification application on May 28, 2010. On June 1, 2010, CUPE determined Local 61 should be placed under administration or trusteeship. On the same date, Ms. Susan Barton was appointed “receiver”. She is an employee of CUPE working out of the Fredericton regional office.

As to the power of CUPE to appoint a receiver, the only authorizing provision of its Constitution that I could indentify is

Article 7.8(

a) which speaks of the appointment of an administrator who has the authority to conduct the affairs of the chartered local in the same manner as would the officers of the local. [ 12 ] Following Ms. Barton’s appointment, members of Local 61 refused to cooperate with Ms. Barton and Local 61’s banker refused to grant access to banking information and accounts. On June 22, 2010, CUPE filed a Notice of Application, under Rules 3, 9, 16 and 41 of the Rules of Court, seeking to confirm Ms. Barton’s appointment as receiver. With an abridgment of time, the application hearing commenced on June 25, 2010.

The proceedings continued on July 12, 21 and 28, with final arguments and submissions being presented on August 27, 2010. The application judge rendered his decision on the same date. His decision is cited as 2010 NBQB 266 , [2010] N.B.J. No. 280 (QL). [ 13 ] In the application originally filed with the Court of Queen’s Bench, CUPE sought, inter alia , the following relief: (1) an order confirming the appointment of Ms.

Barton as receiver and manager of Local 61; (2) an order approving the receiver’s authority to commence and defend proceedings when necessary for the protection, preservation or acquisition of the property which is subject to the receivership; (3) an order approving the receiver’s authority to deal with property which is subject to the receivership and to pay claims or incur expenses in relation to the property; (4) an order authorizing the receiver to execute and deliver all documents required to effect any transaction of purchase and sale of property which is the subject of the receivership; (5) an order directing all current or former members of Local 61 to produce all property which is the subject matter of the receivership and to respond to questions pertaining to the property; (6) an order directing any solicitor who has provided advice to Local 61 to provide the receiver with copies of all correspondence and legal opinions and; (7) an order directing any financial institution to grant access to property subject to the receivership.

In

summary, Ms. Barton sought confirmation of her appointment as receiver in order to assume control and manage the affairs of Local 61. [ 14 ] The notice of application does not expressly set out the so-called property subject to the receivership. One can also reasonably infer that monies held by any financial institution on behalf of Local 61 fall within the ambit of the order being sought. Ms. Baron’s affidavit does make reference to two parcels of real property, one of which is used as a “bar” for members of the Local 61. Title to both properties is held in the name of a numbered company (042199 N.B. Ltd.).

Apparently, some of the respondents are directors of the numbered company. [ 15 ] Near the end of the application hearing, counsel for CUPE substantially reduced the ambit of the confirmation order originally sought. Instead, CUPE sought an order: (1) appointing Ms. Barton as receiver, without security, to determine and account for all assets, property and undertakings of Local 61; (2) declaring Ms. Barton to have full authority to compel production of all documents pertaining to the assets of Local 61; (3) requiring all past and present directors, officers, employees, members, servants and

agents of the Local to provide and deliver to the receiver for inspection all documents relating to the assets of the Local; (4) directing anythird party such as a financial institution, accountant or lawyer in possession of any documents pertaining to the assets of the Local,including those owned by the numbered company, to deliver those documents to the receiver; and (5) allowing the receiver or any“interested person” to apply subsequently to vary or rescind the order. In

summary, CUPE sought an order that would simply allow Ms.Barton to gather in all information respecting the assets of Local 61. III. Analysis [16] Curiously, Local 61 was not made a party to the application for appointment/confirmation of a receiver. Onlyits executive officers are named as respondents. The omission should not be viewed as an oversight. Undoubtedly, CUPE is of the viewthat it holds Local 61’s assets in trust, and therefore Local 61 is not a necessary party.

By contrast, the respondents maintain that: “Anyrelevant property and assets are owned by members of Local 61 who are now members of the Saint John Police Association.”Fortunately, this Court does not have to resolve the divergence in opinions. Yet, it is still important to explain the parameters of the issueand how it impacts on the decision regarding confirmation of the appointment of Ms. Barton as receiver. [17] My analysis begins with accepted propositions regarding the legal status of CUPE and Local 61.

There is nodoubt that both CUPE and Local 61 are legal entities capable of suing and being sued: see Fullowka v. Pinkerton’s of Canada Ltd., 2010SCC 5, [2010] 1 S.C.R. 132, Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493, and International Brotherhood of Teamsters v. Therien, (SCC), [1960] S.C.R. 265, [1960] S.C.J. No. 6 (QL), per Locke J. at pp. 277-78. It is equally true that the relationshipbetween a national union and one of its locals is contractual, invariably traceable to the national’s Constitution.

Generally, there are twoways in which the local union may be established: (1) independently of the national or parent union; or (2) by

an act of the parent uniongranting a charter, in which case the local may be labelled a “subordinate”. In a well-known text, the authors explain that if the localunion is created independently of the parent union, the relationship is likely to be described as an affiliation. The significance of thischaracterization is that if there is a severance of the relationship, the parties are restored to their positions prior to affiliation. A logicalcorollary of this understanding is that the affiliate would retain ownership of its assets (see Alfred W.R.

Carrothers et al., Collective Bargaining Law in Canada, 2nd ed. (Toronto: Butterworths, 1986) at p. 737 et seq). The authors go on to explain that even though thelocal may have an independent existence, the constitution of the parent may stipulate that the only way in which a subordinateorganization may come into existence is through the granting of a charter to persons making application and, therefore, the fact that theapplicants belong to an organization already in existence may have no legal significance. [18] In another text, the relevant legal principles are expressed somewhat differently. In Wesley B.

Rayner’s text Canadian Collective Bargaining Law, 2nd ed. (Markham: LexisNexis Canada Inc., 2007), the author posits: Even if the local was in existence prior to affiliation with the parent, the contract of affiliation can stipulate that the local now is thecreature of the parent. If it does so stipulate and the relationship is severed, the local is destroyed and its property will revert of theparent. However, the contractual nature of the relationship precludes the parent from taking the property of the local if the parent is theone who has repudiated the contract.

It has also been decided that if the local’s charter is revoked in the absence of a specific provisionallowing the parent to claim the local’s assets, the assets belong to the members of the local. [p. 571] [19] I have not reproduced the above passage for purpose of giving formal approval to the legal propositions statedtherein, but only for the purpose of demonstrating that the issue of ownership is complex. Frankly, there is little case law and much ofwhich is cited is dated.

At this point, we need only recognize that the legal consequences of severing a relationship which the lawdetermines to be between a parent and subordinate are quite different from the legal consequences of severing an affiliation. Each casemust be decided on the basis of the proper

interpretation of the underlying contract between parent and local union. That contract isinformed by the parent’s constitution and any of the local’s by-laws which have been approved by the parent. [20] The above analysis explains why the respondents insist that the relationship between CUPE and Local 61 wasone of affiliation and not subordination. It also explains why CUPE’s constitution uses the word “subordinate”.

For purposes of decidingthis appeal, I need only emphasize the parties’ fundamental disagreement as to the proper characterization of the relationship and,correlatively, as to who has ownership of the assets of Local 61. I believe it to be common ground that the contractual relationship hasbeen severed, that is to say, terminated. The respondents maintain that CUPE failed to live up to its legal obligations under the contractand, therefore, Local 61 had no further obligation to perform under the contract.

Of course, that allegation has yet to be determined. [21] In the court below and in this Court, the arguments advanced in regard to whether the application judge shouldhave issued an order confirming Ms. Barton’s appointment as receiver were pursued on two completely different footings. CUPE arguedas though it were a given that its relationship with Local 61 was one of subordination and, therefore, upon severance, it acquiredownership (in trust) of Local 61’s assets.

As noted earlier, the fact that Local 61 was not made a party to the application to appoint areceiver most likely rests on CUPE’s belief that Local 61 no longer exists but for the purpose of realizing on assets. On the other hand,

the individual respondents kept insisting that the relationship was one of affiliation and, therefore, the assets of Local 61 did not becomethe property of CUPE. The respondents argued the assets now belong to the members of Local 61, or perhaps those who are members ofthe Saint John Police Association. [22] For purposes of deciding this appeal and the underlying application, it is unnecessary to resolve the issue ofownership of assets based on whether the relationship between CUPE and Local 61 was one of affiliation or subordination. We have notbeen asked to interpret CUPE’s Constitution or Local 61’s by-laws.

For greater certainty, I want to emphasize that at no point has eitherparty seen fit to cite the relevant jurisprudence or undertake the type of interpretative analysis that is required for determining ownershipof assets as between a parent and local union upon dissolution of their contractual relationship.

Hence, for purposes of deciding thisappeal, one need only recognize there is a fundamental disagreement over the ownership of assets held by Local 61 at the time theunderlying contract with CUPE was terminated. [23] The next step in the analysis is to outline some basic propositions of receivership law (see Frank Bennett, Bennett on Receiverships, 2nd edition (Toronto: Thomson Canada Limited, 1999)). The term “receiver” is used to describe a person whohas been appointed to take possession of property belonging to a third party and who, in the fullness of time, will decide how to disposeof that property (pp. 1-3).

If the receiver also has the power to carry on a business, the person is called a “receiver and manager”, or“receiver/manager”. There are two methods of appointment for a receiver. One method is to make the appointment privately under theterms of a document. This is a self-help remedy, typically involving a secured lending transaction in which the debtor has given thecreditor the power to appoint a receiver in order to seize and sell the property secured by their agreement.

The other method ofappointing a receiver is by the court. [24] We now turn to an examination of the existing legal framework for court-appointed receivers in NewBrunswick. We start with s. 33 of the Judicature Act which provides that “a receiver [may be] appointed by an interlocutory order of theCourt in all cases in which it appears to the Court to be just or convenient that the order should be made; and any such order may bemade either unconditionally or upon such terms and conditions as the Court thinks just …” (emphasis added).

It is acutely obvious that s.33 applies only to cases where there is an underlying action. However, that limitation is not found in Rule 41.02(1)(

c) of the Rules ofCourt, which provides “where the court is satisfied that a receiver should be appointed, the court may appoint a suitable personaccordingly or make such other order as may be just”. Rule 41.03 speaks to the confirmation of a receiver acting under an instrumentother than a court order, while Rule 41.04 speaks to the manner in which a request for the appointment or confirmation of theappointment of a receiver is to be made. If there is an underlying proceeding, the request is to be made by Notice of Motion; if noproceeding has been commenced, the request is to be by Notice of Application.

As Rule 41 is much broader than s. 33 of the JudicatureAct, it might be asked how a Rule of Court can overtake an express statutory provision. It just happens that the 1982 Rules of Court wereadopted and form part of the Judicature Act, pursuant to s. 76 of that Act: R.S., c.120, s.76; 1983, c.43, s.2. [25] There is little jurisprudence dealing with the appointment of receivers under Rule 41. There is the well-knowncase of Watt v. Trail, 2001 NBCA 58, 237 N.B.R. (2d) 319, involving Rule 41.02(1)(

c) and the appointment of a receiver by way ofequitable execution. The case revealed the struggles of a judgment creditor (Trail) trying to obtain satisfaction of its judgment byrealizing on an RRSP held by the judgment debtor (Watt). In an earlier decision reported at (2000), (NB CA), 227N.B.R. (2d) 334, [2000] N.B.J. No. 298 (C.A.) (QL), this Court held the judgment debtor’s RRSP was not exigible property under s.26(1) of the Memorials and Executions Act, R.S.N.B. 1973, c. M-9. In a subsequent decision reported at (2000), (NBKB), 235 N.B.R. (2d) 225, [2000] N.B.J.

No. 515 (Q.B.) (QL), a judge of the Court of Queen’s Bench issued an order appointing areceiver for the purpose of seizing and collapsing the RRSP and applying the proceeds against the outstanding judgment. The subsequentappeal was dismissed: 2001 NBCA 58, 237 N.B.R. (2d) 319. As to academic commentary and discussion of the issue, see John R.Williamson, “Execution Against RRSPs” (2000) 16:2 Solicitor’s Journal 1 and John R.

Williamson, “Appointment of Receiver for RRSPUpheld” (2001) 18:1 Solicitor’s Journal 6. [26] As this case does not involve the appointment of a receiver by way of equitable execution, we are left to sortout the analytical framework to be applied when deciding whether to appoint a receiver or to confirm the receiver’s appointment. I notethat Rule 41.02 applies to the appointment of a receiver, while Rule 41.03 applies to the confirmation of the appointment of a receiver.The distinction is one with legal consequences. Rule 41.02(1)(

c) speaks only of appointing a suitable receiver in circumstances where thecourt is satisfied that a receiver should be appointed. Rule 41.03(1) speaks of obtaining court confirmation with respect to a receiver whois acting under an instrument, other than a court order, and the person making the appointment and the confirmation request has aninterest in property which is subject to the receivership.

Rule 41.03(2) requires the court to be satisfied that it is appropriate for thereceiver to be under the supervision of the court and the applicant either guarantees the receiver’s costs, arising from the supervision bythe court, or satisfies the court that sufficient assets are available to satisfy the receiver’s costs.

Rule 41.03(3) states that confirmation ofthe appointment of a receiver has the same effect as an appointment by the court of any receiver. [27] The question left for our consideration is whether CUPE sought an order for the appointment of a receiverunder Rule 41.02(1)(c), or an order confirming the appointment of a receiver under Rule 41.03. The answer is found in CUPE’s Notice ofApplication. At the outset, it requests an order confirming the appointment of Ms. Barton as receiver.

The final paragraphs of the Noticeseek “confirmation from the Court of the appointment of the Receiver” and the issuance of an order confirming the appointment and the

receiver’s authority to act. In brief, the application must have been brought under Rule 41.03, even though the appeal record discloses no reference to the specific Rule under which the request for relief was made. It might be asked whether it really it makes a difference as to whether the application is brought under Rule 41.02(1)(

c) as opposed to Rule 41.03. The answer is “yes”, because there are three requirements set out in Rule 41.03 which are not found in Rule 41.02(1)(c).

When dealing with a request for the confirmation of a receiver, the court must conclude that the person seeking the confirmation: (1) is “acting under an instrument”; (2) is financially capable of paying the receiver’s costs or there are sufficient assets available to pay those costs; and (3) has “an interest in the property” which is the subject matter of the receivership. [ 28 ] If we are dealing with the confirmation of the appointment of a receiver, then Rule 41.03 comes into play. That being so, I am not concerned with whether CUPE is financially capable of paying Ms.

Barton’s costs as she is an employee of CUPE. I am also going to overlook the questions of whether Ms. Barton’s appointment as receiver is authorized under CUPE’s Constitution, whether Ms. Barton is capable of fulfilling the role of receiver, and whether her appointment would give rise to a conflict of interest having regard to her obligations to the court and her obligations to her employer.

Instead, I turn directly to the pivotal question: whether CUPE as applicant has “an interest in the property” which is the subject matter of the receivership. [ 29 ] In my view, the facts of the present case do not support the granting of the order sought. The issue as to who owns the assets of Local 61 is outstanding and there are no exceptional circumstances which warrant a different result. For example, this is not a case in which the disputed assets are at risk of being lost or destroyed. Furthermore, it is not a case in which the applicant is seeking possession of property.

The applicant seeks only information pertaining to the identification of assets and documented title thereto. In short, a court does not appoint a receiver, or confirm the appointment of a receiver, for the purpose of allowing an applicant to gather information about what assets the third party (Local 61) has acquired and how title is being held. Even if the application had been made under Rule 41.02(1)(c), the application should be denied because of the dispute regarding ownership of the assets and because the order does not seek to vest the receiver with the authority to take possession.

If CUPE is sincerely intent on seizing the assets of Local 61, it is inescapable that CUPE must initiate an originating process to have the matter of ownership resolved. This is one point on which I am in complete agreement with the application judge. [ 30 ] I would dismiss the appeal with costs of $3,500. I note, however, that the application judge did not award costs to the successful party (Local 61). Instead, he held: “ It seems to me that it is not appropriate for there to be an order for costs now.

The consideration of costs in any subsequent proceeding should also include the costs related to this proceeding” (para. 51). As neither party has questioned that costs order, I defer to their collective wisdom. ____________________________________ J.T. ROBERTSON, J.A. WE CONCUR: __________________________________ KATHLEEN A. QUIGG, J.A. ___________________________________ BRADLEY V. GREEN, J.A.