[1988] OLRB Rep. March 312
2256-87-U; 2268-87-U MacMillan Bathurst Inc., Applicant v. Canadian Paper-workers' Union, Local 1497, Respondent; MacMillan Bathurst Inc., Applicant v. Canadian Paperworkers' Union, Local 1497 and Joao Amarelo and all hourly rated employees of the applicant who are not on layoff, Respondents
BEFORE: Judith McCormack, Vice-Chair.
DECISION OF THE BOARD; March 15, 1988
These matters are two applications under section 92 for declarations that employees engaged in and the union authorized an unlawful strike, and for associated remedies. On December 2, 1987, the Board issued a decision in which it exercised its discretion to decline to issue a declaration or the remedies requested.
Since that time, the applicant has requested that the Board reconsider its decision. The grounds cited for reconsideration are as follows:
(1) the applicant alleges that the Board did not answer the question of whether the respondents engaged in an unlawful strike;
(2) the applicant alleges that the Board based its decision on either the doctrine of estoppel or on the ability of the parties to contract out of the Labour Relations Act;
(3) the applicant alleges that the Vice-Chair who heard this case conferred with other Vice-Chairs and/or the Chair and officially requests that the Board provide to the applicant information with respect to the nature and details of those meetings; and
(4) the applicant requests a hearing so that argument may be made with respect to the consequences of this decision on the labour relations community in general.
- Section 106(1) which sets out the Board's powers of reconsideration provides as follows:
106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
- In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185 the Board described its general approach to reconsideration applications:
To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the requests for reconsideration in light of a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC 16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132, (Ont. Div. Ct.).
In London Soap Company Limited, [1987] OLRB Rep. Feb. 241, the Board added the following observations:
The Board's jurisdiction to reconsider a decision is a broad one. However, both the Act and the realities of labour relations dictate that the premise from which the Board begins is that its decision should be final and conclusive for all purposes. Practice Note No. 17 accurately sets out the circumstances under which the Board will reconsider a decision. In recognition of the need for finality, the Board will not usually reconsider a decision unless an obvious error has been made; or the request raises important issues of Board policy; or, it is satisfied that the party requesting it proposes to adduce new evidence that it could not, with the exercise of due diligence, have obtained previously, and that the new evidence, if adduced, would be virtually conclusive; or, if a party wishes to make representations or objections it had no previous opportunity to raise.
Turning to the applicant's first ground for reconsideration, it is often the case the parties will make a number of legal and factual arguments in any given matter. However, the Board is not required to decide all possible issues which are raised in a case, but only those necessary for a complete disposition of the matter. In this case, the applicant applied for a declaration and relief under section 92 of the Act which provides as follows:
Where, on the complaint of a trade union, council of trade unions, employer or employers' organization, the Board is satisfied that a trade union or council of trade unions called or authorized or threatened to call or authorize an unlawful strike or that an officer, official or agent of a trade union or council of trade unions counselled or procured or supported or encouraged an unlawful strike or threatened an unlawful strike or that employees engaged in or threatened to engage in an unlawful strike or any person has done or is threatening to do an act that the person knows or ought to know that, as a probable and reasonable consequence of the act, another person or persons will engage in an unlawful strike, the Board may so declare and it may direct what action, if any, a person, employee, employer, employers' organization, trade union or council of trade unions and their officers, officials or agents shall do or refrain from doing with respect to the unlawful strike or the threat of an unlawful strike.
The parties made a number of lengthy and interesting arguments at the hearing, including arguments directed at whether a refusal of employees to work overtime in concert fell within the definition of "strike" under the Labour Relations Act, and whether in any event the Board should exercise its discretion to grant the declaration and relief requested. For the reasons set out in its decision, the Board found that the appropriate exercise of its discretion in the circumstances of this case was to decline to issue a declaration and associated remedies. As a result, it made little sense for the Board to go on to make a determination on an issue which would only be relevant if the Board had decided such relief should issue. Moreover, it is not necessary in these circumstances for the Board to consider first whether an unlawful strike existed and only then consider the appropriate exercise of its discretion. While a finding of an unlawful strike is a necessary precondition before a declaration or remedies can issue, it is superfluous in the circumstances before the Board. A two-step process would be highly artificial and impractical in these kinds of applications which are often a matter of great urgency, and it might well result in a proliferation of unnecessary determinations.
While there are times when the Board may go on to comment on issues which are not strictly necessary to the disposition of a case in the hope that its views may be of some assistance to the parties in ordering their affairs in the future, this is not a case where such an approach would have been advisable. Here, the finding that the applicant argues the Board should have made was that a concerted refusal by employees to work overtime was an unlawful strike. The declaration that the Board found it inappropriate to issue was virtually identical. Where the Board has determined that it will not issue a declaration, making the finding requested would allow the applicant to obtain by the back door what it could not get by the front.
The Board came to a similar conclusion in Steinberg Inc., [1983] OLRB Rep. Feb. 253 where the applicant had applied under section 89 of the Labour Relations Act for a declaration and posting to the effect that the union had violated sections 74 and 76 of the Act. The Board approached the matter in a manner similar to an application under section 92 of the Act and made this finding in paragraph 24 of its original decision (Steinberg Inc., [1982] OLRB Rep. Sept. 1366):
Having reviewed the evidence and the submissions of the parties, the Board concludes that even assuming, but without finding, that the actions of Mr. Floyd on May 5th constitute a technical breach of sections 74 and 76 of the Act, we do not in the circumstances of this case consider it appropriate to issue any remedy whatsoever.
The applicant then applied for reconsideration for a number of reasons, including the fact that the Board did not make a finding as to whether the respondent had authorized an illegal strike. The Board noted that such a finding would be essentially the same as the declaration it had declined to issue. In the following passage, the Board concluded that it would defeat the due exercise of its discretion if it were to make such a finding:
The situation before the Board is unique. The declaration of an unlawful strike or encouragement thereof sought by the employer by way of remedy is virtually the same as a finding of whether or not there has been a violation of the Act. In this case the finding is the remedy. The Board determined in the exercise of its discretion that in the circumstances it would not be appropriate to grant the remedy sought by employer. The Board then declined to make a finding of whether or not there had been a violation of the Act as that very finding was the remedy the Board, in the exercise of its discretion, had determined was inappropriate.
Counsel for the employer does not take issue with the Board's decision not to issue a declaration, recognizing that the Board's decision not to issue a declaration by way of remedy falls squarely within the exercise of its own discretion. Seeking through a different channel what it cannot get by way of remedy, however, the employer insists that the Board has a duty to make a finding of whether or not there has been a violation. When the very finding of a breach of the Act is, under a different name, the very remedy sought by the complaining party, the Board is satisfied that it would defeat the due exercise of its discretion if it were required to make that finding when it has already concluded that the complainant is not entitled to the remedy, i.e. the declaration. In the Board's opinion it would require a clear legislative directive for the Board to be required to nullify the due exercise of its discretion in the manner contended by the employer.
The same rationale applies in these circumstances.
The applicant has also requested that the Board reconsider its decision because it is alleged the decision was based on estoppel or on the ability of parties to contract out of the Act. Neither of these grounds formed the basis of the Board's decision. Rather, the Board asked itself whether the issuance of a declaration or other remedies in the exercise of its discretion would be appropriate in the circumstances before it. These are delicate assessments in labour relations terms, and the Board took into account a number of facts in arriving at its determination. It may well be that some of those same facts would support a finding of estoppel; however, this was not an issue canvassed by the Board because it was not relevant to its decision. At the same time, it cannot be said that simply because certain facts may lend themselves to the application of estoppel, as a result those facts must necessarily be irrelevant to the Board's deliberations applying a different test.
Similarly, the Board made no finding on the question of whether the parties could contract out of the Labour Relations Act because it was unnecessary to do so. However, the Board did consider that by virtue of the remedies requested, the applicant was in essence asking the Board to require employees to work overtime when it had itself given up that prerogative in the collective bargaining process. Again, it cannot be said that this is an irrelevant fact for the Board to consider in assessing whether certain remedies should issue. To suggest that considering the parties' conduct in the context of discretionary remedies amounts to allowing the parties to contract out of the Act ignores obvious differences between the two situations, and in part begs the question of whether overtime refusals in concert are a strike. Discretion under section 92 is precisely that; an area of latitude accorded to the Board by statute in recognition of the complexity and variety of problems that come before it, the Board's sophistication in labour relations matters and the need for the Board to respond in a manner that is both sensitive and sound. The Board did note that an injudicious use of its discretion might have the practical effect of undermining the strike ban in the Act, but this is a different concern, and one which the Board balanced against a number of competing concerns in arriving at its decision.
Turning to the applicant's allegations with respect to discussions between the Vice-Chair who heard the case and others, it is obvious that this is a little more than a fishing expedition. The Vice-Chair who heard this case was the only person who made the decision in this matter and she relied exclusively on the evidence and submissions presented at the hearing in reaching her conclusions. This is not an appropriate ground for reconsideration.
Finally, it is not necessary to hold a hearing to receive submissions on the reconsideration request. Needless to say, the Board disagrees with the effect which the applicant argues the decision may have. However, both parties addressed the issues in this case over a period of four days of hearing in a comprehensive fashion. The applicant does not allege that there is new evidence or other matters which might suggest a hearing would be advisable. Rather, it appears that the applicant, in light of its lack of success, seeks to add to the arguments it made at the hearing. The Board anticipates that reconsideration requests will normally be handled by written submissions without a hearing. Practice Note #17 provides in part as follows:
A request for reconsideration should be submitted in writing, addressed to the Registrar of the Board, along with all of the submissions in support thereof....
[emphasis added]
There is nothing in this case which suggests that a hearing is necessary or that the arguments the applicant wishes to make at the hearing could not have been made by way of the procedures set out in the Board's Practice Note, that is, by written submissions. In other words, there is no reason to depart from the Board's normal practice to handle requests for reconsideration without a hearing.
In conclusion, none of the matters raised by the applicant constitute grounds for reconsideration in view of the principles set out in K-Mart Canada, supra, and London Soap Company, supra. For these reasons, the application for reconsideration is dismissed.