[1989] OLRB Rep. December 1218
2382-88-U Energy and Chemical Workers Union, Complainant v. G. Lemaire and Chinook Chemicals Company, Respondents
BEFORE: Owen V. Gray, Vice-Chair, and Board Members W. A. Correll and C. McDonald.
DECISION OF THE BOARD; December 6, 1989
- By letter dated November 8, 1989, counsel for the complainant asks that we reconsider our decision of October 6, 1989 in this matter (reported at [1989] OLRB Rep. Oct. 1021). His request for reconsideration reads as follows:
I am writing to request that the Board reconsider its decision in the above matter as it pertains to the alleged violation of section 70 of the Act by the respondent Lemaire.
As I understand that portion of the decision, the Panel dismissed the complaint on the grounds that it did not consider the remedy specified therein to be appropriate. Because of its views with respect to the complainant's submissions concerning appropriate remedy, the Panel found it unnecessary to reach any conclusion as to the alleged violation of section 70.
This approach to the resolution of this complaint is rather odd considering the language of section 89. In my submission, that section contemplates the determination of an appropriate remedy once the Board is satisfied that a respondent has acted contrary to the Act. Once that finding has been made, section 89 confers jurisdiction on the Board to fashion an appropriate remedy, whatever that might be. Certainly, I can understand that the Board might decline to grant the remedy requested but surely that is something quite different than dismissing the complaint because one disagrees with a particular remedy requested. Surely this does not, or ought not to, preclude the possibility that another remedy, which is appropriate, does exist.
With all due respect, it is submitted that the complainant is entitled to a decision concerning the alleged violation of section 70 by Mr. Lemaire and, in the event that a breach is found to have occured, [sic] the complainant ought to have a fair opportunity to address the concerns raised in the Panel's decision. I might add, that, to the best of my recollection, none of these concerns were expressed by the respondents or the Panel during the course of the hearing last February.
- The Board has the power under subsection 106(1) of the Labour Relations Act ("the Act"), "if it considers it advisable to do so", to "reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling". As the Board observed in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096:
The Board exercises its jurisdiction under [subsection 106(1)1 of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:
"Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously."
The Board's Practice Note No. 17 provides that:
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. The party requesting reconsideration should file with the Registrar four (4) copies of the request for reconsideration and submissions in support, together with an additional copy for each of the other parties to the original proceeding.
Having regard to the Board's jurisprudence and paragraph 2 of its Practice Note No. 17, a written request for reconsideration should in some way or other:
(a) identify the decision, order, direction, declaration or ruling which the requestor wishes reconsidered;
(b) contain a concise statement of the new evidence, if any, on which the requestor wishes the Board to act in rescinding or varying its previous decision, order, direction, declaration or ruling, together with a concise statement of the facts and law on which it relies in support of its request that this new evidence be entertained;
(c) contain a concise statement of the new submissions, if any, on which the requestor wishes the Board to base a decision varying or rescinding its previous decision, order, direction, declaration or ruling, together with a statement of the facts and law on which it relies in support of the proposition that these new submissions should be entertained; and,
(d) set out the decision, order, direction, declaration or ruling which the complainant wishes the Board to substitute for the one which is the subject of the request for reconsideration.
The decision which the complainant asks us to reconsider is identified in the request for reconsideration: it is our decision with respect to the alleged violation of section 70 of the Act by the respondent Lemaire.
It does not appear that the complainant seeks to introduce any new evidence.
The complainant says that it ought to have a "fair opportunity to address the concerns raised in the panel's decision." The implication is that our decision speaks to issues which the complainant did not have a fair opportunity to address at the conclusion of our hearings in these matters. Counsel for the complainant does not say what issues those are, nor does he say what submissions the complainant would make about those issues if given the opportunity to do so. The application for reconsideration is deficient insofar as it fails to provide that information.
The application for reconsideration contains the assertion that the complainant "is entitled to a decision concerning the alleged violation of section 70 by Mr. Lemaire", from which we take it the complainant asserts entitlement to a decision about whether Mr. Lemaire's conduct contravenes section 70 or not. Further, the complainant seems to assert that a complainant is "entitled" to a decision about whether certain conduct constitutes a violation of a section of the Labour Relations Act even if the alleged violation has not caused the complainant or any grievor on whose behalf it complains any detriment for which the Board would be willing or able to impose a remedy. We do not accept that proposition.
There may be instances in which it is desirable for the Board to pronounce on the propriety of behaviour even when such a declaration is the only remedy sought or appropriate. Equally, there will be occasions when it is inappropriate and undesirable to pronounce on the propriety of behaviour when no actual loss or damage, tangible or intangible, has been caused by that behaviour. We concluded that this case was of the latter sort. In the absence of circumstances warranting any remedy, the legal question was academic. We are not aware of any principle of law which compels the determination of academic or moot questions of law. Moreover, the Board has a discretion about whether or not to inquire into a complaint under section 89. That discretion is one which ought to be exercised in a rational way with regard to the nature of the complaint, among other things. The Board surely does not lose that discretion by hearing evidence about the complaint. Accordingly, we reject the proposition that the complainant was "entitled" in these circumstances to a decision about whether Mr. Lemaire had violated section 70.
The complainant asserts that its complaint was dismissed because we disagreed with the particular remedy it had requested. We concluded that the conduct by Lemaire which the complainant said was a violation of section 70 did not result in the loss which the remedy sought by the complainant would have redressed. The complainant had not identified any other remediable loss which could be said to have resulted from the conduct in question. We concluded that there was no such other loss. We also considered whether a cease and desist or "injunctive" remedy would be appropriate if the conduct complained of did contravene the Act. We concluded it would not. In short, we concluded that there was no appropriate remedy if the conduct in question contravened the Act. While its request for reconsideration suggests that some remedy other than the one it requested might be appropriate, the complainant does not identify that remedy. In that respect, it has failed to set out in its request for reconsideration the decision, order, direction, declaration or ruling which it wishes the Board to substitute for the one which is the subject of its request.
As the request for reconsideration does not on its face set out sufficient grounds for that relief, it is unnecessary for us to request or entertain submissions from the respondent Lemaire. The request is hereby denied.