[1994] OLRB Rep. January 31
3098-93-G International Union of Operating Engineers, Local 793, Applicant V. John Maggio Excavating Ltd., Responding Party
BEFORE: Lee Shouldice, Vice-Chair, and Board Members W. N. Fraser and H. Kobryn.
DECISION OF THE BOARD; January 24, 1994
This construction industry grievance was heard by this panel of the Board on December 20, 1993. When this application came on for hearing, no one appeared on behalf of the responding party. The Board waited its customary thirty minutes and, having heard nothing from the responding party as to the reasons for its absence, this panel heard the evidence of the applicant and made the declarations and orders contained in our decision dated December 20, 1993.
By way of letter dated December 21, 1993, John Maggio, on behalf of the responding party, wrote to the Board. In essence, Mr. Maggio asks that any decision of the Board against the responding party be withheld until he can attend before the Board. In support of this request, Mr. Maggio makes three representations which are summarized below:
(a) he was not aware that the Board hearing on December 20, 1993, would be held at 9:30 a.m. Mr. Maggio states that "the union advised him that the hearing was to be held at 2:30 p.m. on December 20, 1993. The letter further indicates that Mr. Maggio did attend at the Board on December 20, 1993, at 2:30 p.m. and spoke to the Labour Relations Officer appointed to this file;
(b) he was forced by the union to sign a letter prepared on his letterhead to be directed to Sonterlan Construction asking it to direct monies to be paid to various sub-trades to the applicant instead; and
(c) he had believed that the issues raised in this Board file had been settled in November, and that the responding party had complied with all of the applicant's requests.
This panel's decision in this matter was issued on December 20, 1993. As we did not receive Mr. Maggio's letter until after our earlier decision was issued, it is not possible to withhold any orders or declarations contained in that prior decision.
Although the request of Mr. Maggio has not been made on the proper form and does not otherwise comply with the Board's Rules of Procedure, we have determined to treat Mr. Maggio's request as a request for reconsideration. Pursuant to section 108(1) of the Labour Relations Act, the Board has the discretion to reconsider any decision it has made. Section 108(1) of the Act states as follows:
108.-(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.
The Board's policy regarding reconsideration has been clearly enunciated in its jurisprudence including John Entwistle Construction Limited [1979] OLRB Rep. Nov. 1096, and K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185. As a general proposition, the Board will not reconsider a decision unless a party intends to introduce new relevant evidence which could not have been previously obtained by the use of reasonable diligence, and where such evidence, if adduced, would be practically conclusive of the case. Alternatively, the Board may reconsider its previous decision if a party intends to raise objections or make representations which were not already considered by the Board and which the party had no prior opportunity to raise. The rationale for the narrow limits imposed on the exercise of the Board's power to reconsider its earlier decisions is obvious - only if Board decisions are considered to be final can they be relied upon as establishing the rights as between the parties.
In this particular case, the second and third grounds set out above as the basis for Mr. Maggio's request are not grounds upon which the Board would reconsider its prior decision. At the hearing of this matter, the union did not rely upon any letter to Sonterlan Construction referred to by Mr. Maggio. With respect to the third ground, the fact that this grievance was received by the Board on December 6, 1993, and forwarded to the responding party three days later, should have been an indication to the responding party that the union was not satisfied with any purported resolution which the responding party had thought had been reached. These two grounds express no intention to introduce new relevant evidence, nor do they raise an argument or objection that the employer could not have raised at the hearing.
With respect to the first ground raised by Mr. Maggio, the Board has reviewed the Board file. On December 9, 1993, a Form B-45, "Notice to Responding Party of Referral of Grievance to Arbitration under Section 126 and of Hearing, Construction" was sent to John Maggio Excavating Ltd. with a copy of the union's application. It was forwarded to the same address reflected by Mr. Maggio's letterhead on his correspondence of December 21, 1993. Form B-45 contains, amongst other things, the following information and warnings:
The applicant, on DECEMBER 2, 1993, referred a grievance to the Ontario Labour Relations Board for a final and binding determination. A copy of the referral is attached.
The hearing of the application will take place in the "Board Room" 6th Floor, 400 University Avenue, Toronto, Ontario, on MONDAY, DECEMBER 20, 1993, at 9:30 A. M.
IMPORTANT NOTE
IF YOU DO NOT FILE YOUR RESPONSE AND OTHER REQUIRED DOCUMENTATION IN THE WAY REQUIRED BY THE RULES, THE BOARD MAY NOT PROCESS YOUR RESPONSE AND DOCUMENTS, AND MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU. FURTHERMORE, YOU MAY BE DEEMED TO HAVE ACCEPTED ALL OF THE FACTS STATED IN THE APPLICATION.
THE BOARD'S RULES OF PROCEDURE DESCRIBE HOW A RESPONSE MUST BE FILED WITH THE BOARD, WHAT INFORMATION MUST BE PROVIDED AND THE TIME LIMITS THAT APPLY.
PLEASE CONSULT THE BOARD'S RULES OF PROCEDURE BEFORE COMPLETING YOUR RESPONSE, COPIES OF THE BOARD'S RULES MAY BE OBTAINED FROM THE BOARD'S OFFICE LOCATED ON THE 4TH FLOOR AT 400 UNIVERSITY AVENUE, TORONTO, ONTARIO (TEL. (416) 326-7500).
IF YOU DO NOT ATTEND THE LABOUR RELATIONS OFFICER MEETING OR THE HEARING, THE BOARD MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT YOU MAY HAVE FILED,
YOU HAVE THE RIGHT TO COMMUNICATE WITH, AND RECEIVE AVAILABLE SERVICES FROM, THE BOARD IN EITHER ENGLISH OR FRENCH.
PLEASE INDICATE WHETHER YOU WILL REQUIRE ANY SPECIFIC SERVICES, INCLUDING TRANSLATION SERVICES FOR WITNESSES, OR SERVICES FOR PERSONS WHO ARE HEARING OR VISION IMPAIRED OR OTHER SERVICES. THE BOARD WILL ATTEMPT TO ACCOMMODATE YOU, BUT MAY NOT BE ABLE TO MEET YOUR SPECIFIC REQUEST(S).
(emphasis in original)
It is clear from Board Form B-45 that the hearing of this matter was scheduled for hearing on December 20, 1993, and that by notice dated December 9,1993, the responding party was advised of the date, place and time of the hearing. Assuming for the sake of argument that a representative of the trade union did advise Mr. Maggio that the hearing was scheduled for 2:30 p.m. on December 20, 1993, we would not, on that basis alone, reconsider our decision of December 20, 1993. The Form B-45 sent to the responding party is the formal notice of hearing from the Board. It cannot be superseded or otherwise amended or altered by the parties. A party who fails to check the Board's Notice of Hearing and chooses to rely upon the recollection or representation of others does so at its own risk. The risk of so doing is that which occurred in this case - attending at the Board after the completion of the case and the issuance of the decision.
As adequate grounds for reconsideration have not been disclosed, the request by the responding party for reconsideration is denied. The decision of the Board dated December 20, 1993, is affirmed.