Ontario Labour Relations Board
[1990] OLRB Rep. September 928
2369-89-U Douglas Dorling, Complainant v. Ontario Public Service Employees Union (James Clancy) and Ontario Public Service Staff Union (Ms. Sherry Currie), Respondents
BEFORE: Robert Herman, Vice-Chair, and Board Members D. A. Patterson and M. Rozenberg.
DECISION OF THE BOARD; September 5, 1990
1This is the second request by the complainant for reconsideration of the Board's decision of February 14, 1990. In that decision the Board gave leave that the complaint be withdrawn, having regard to the settlement which had been reached by the parties.
2In its decision of March 8, 1990, the Board denied Mr. Dorling's first request for reconsideration of the above-noted decision.
3In a letter dated June 22, 1990, received by the Board on July 9, 1990, the complainant again asked for reconsideration, although on different grounds than his first request. As he writes, in part, in that letter:
I would be asking for reconsideration on the following basis, due to my mental incapacity owing to the illness I had I was entitled under the Mental Health Act to have a representative present to represent me. My doctor planned to attend as he was concerned for my health and I had anticipated an adjournment until I was able to get legal aid approved. Enclosed is the latest research data concerning my illness
4His request was circulated to the parties for their comments. In response, the Board received a letter of July 30, 1990, from counsel for the employer, OPSEU, opposing the reconsideration. That letter reads, in its entirety, as follows:
I act for OPSEU the employer in connection with the above-noted matter. Mr. Dorling has already made a request for reconsideration to the Board that was rejected by written decision. Legal proceedings such as these must have some finality and the Board should not be in the position of considering a second request for reconsideration so recently after a request has been made and refused.
Mr. Dorling resigned voluntarily from employment with OPSEU and received a substantial severance package.
Just prior to the hearing scheduled to hear this complaint earlier this year Mr. Dorling withdrew his complaint against his bargaining agent the Ontario Public Service Staff Union. It is unclear whether he is seeking a reconsideration of that withdrawal as well as his withdrawal of his complaint against the employer.
Under the terms of the withdrawal of the complaint OPSEU undertook, inter alia, to make its best efforts to have three individuals who had launched lawsuits against Mr. Dorling for alleged defamatory and libelous statements made by Mr. Dorling to withdraw them. OPSEU was unsuccessful in convincing one of the three individuals who had launched actions against Mr. Dorling to withdraw her action.
The one individual who is suing Mr. Dorling, Ms. Bridget Krajnak, has made it clear on the record that she would currently abandon her action on a without costs basis if Mr. Dorling would make a written retraction of the statement(s) he made about her.
Mr. Dorling is represented by a solicitor in that action. The gist of Mr. Dorling's current complaint seems to relate to this lawsuit. The matters Mr. Dorling raises are issues in the litigation. Accordingly the forum, if one is available, for the resolution of his current complaints resides with the courts.
5The Board was also in receipt of numerous letters supporting his complaint. The Board was also sent a copy of a medical report, dated August 3, 1990, with respect to Mr. Dorling.
6It appears from Mr. Dorling's letter of June 22, in which he requests reconsideration, that he is seeking reconsideration on the basis that he was so mentally incapacitated at the time he agreed to and signed the settlement that he was unable to properly represent himself, and the settlement ought therefore to be set aside.
7In these circumstances, the Board considers it appropriate to schedule this matter for hearing, to provide an opportunity to the complainant to demonstrate to the Board why its earlier decision (in which it gave leave that the complaint be withdrawn) should be reconsidered, on the grounds asserted, the complainant's mental incapacity at the relevant time. The hearing will not deal with the merits of Mr. Dorling's section 89 complaint, but only with whether the Board ought to reconsider and afford him an opportunity to address the merits of his section 89 complaint. The parties should be prepared to lead whatever evidence they consider relevant to this reconsideration issue. Given the grounds he asserts in support of his reconsideration request, Mr. Dorling should understand that he has the obligation of establishing on the evidence that he was sufficiently mentally incapable at the relevant time, and that in all the circumstances the settlement ought to be set aside.
8Accordingly, this matter is to be scheduled for a hearing to consider whether the Board ought to reconsider its earlier decision. This panel is seized.