Ontario Labour Relations Board

[1994] OLRB Rep. March 204

2734-93-G Labourers' International Union of North America, Local 183, Appli­cant v. Bairrada Masonry Inc., Responding Party

BEFORE: Janice Johnston, Vice-Chair, and Board Members D. A. MacDonald and H. Kobryn.

DECISION OF THE BOARD; March 21, 1994

1. On February 10, 1994 the applicant filed with the Board a request for reconsideration of the Board's decision dated December 23, 1993.

2. In the request for reconsideration the applicant seeks the following relief:

An Order varying the decision dated December 23, 1993 to the effect that interest calculated in accordance with the Agreement in the amount of $1,604.19 is due and owing to the Applicant.

3. Pursuant to section 108(1) of the Act the Board has a broad discretion to reconsider its decisions. Section 108(1) reads 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.

4. Sections 83, 85 and 125 of the Board's Rules of Procedure provide that:

5. A request for reconsideration under subsection 108(1) of the Act must include complete written representations in support of the request.

6. No request for reconsideration will be considered where it is filed thirty (30) or more days after the date of the Board's decision, except with the permission of the Board.

7. These Rules apply to all cases before the Board on the date these Rules come into force, unless the Board orders otherwise.

8. With regard to requests for reconsideration, the Board stated in K-Mart Canada Lim­ited (Peterborough), [1981] O.L.R.B. Rep. Feb. 185 at ¶4:

"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 request 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.)."

The Board also provided as follows in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 at ¶5:

"The Board exercises its jurisdiction under section 95(1) [as it then was] 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 which 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."

These are general standards which the Board had developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board's decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly. Although neither of the two conditions precedent stated in the Canadian Union of General Employees case, supra, are satisfied here, the request does raise significant and important issues of Board policy and for this reason the Board will review its decision to determine if it should vary or revoke the decision."

6. Generally, therefore, the Board will not reconsider a decision unless either a party intends to introduce new evidence which could not previously have been obtained by reasonable diligence and such evidence if adduced would be practically conclusive, or the party intends to raise objections or make representations not already considered by the Board which the party did not have an opportunity to raise previously. These limits are placed around the exercise of the Board's discretion to reconsider as a recognition of the need for the Board to apply a principle of finality to its decisions so that in the normal course of proceedings a party can safely rely on a deci­sion as establishing the rights between the parties. Without this level of finality the intended expe­diency of the Board would not be realised. The purpose of the Act and this Board to further har­monious labour relations would be seriously hampered without such level of finality.

7. The applicant's request for reconsideration does not indicate an intention to adduce new evidence, nor does the applicant seek to make representations which it did not have a previ­ous opportunity to raise during the hearing of this matter which proceeded the decision of Decem­ber 23, 1993. The Board raised its concerns with regard to the rates of interest in the collective agreement and provided the applicant with the opportunity to make any and all submissions it wished to on the point.

8. The applicant argues that the Board in refusing to enforce the interest rate of 120 per cent per annum in the collective agreement erred in law. The matter of interest rates is dealt with by the Criminal Code of Canada as follows:

9. (1) Notwithstanding any Act of Parliament, everyone who

(a) enters into an agreement or arrangement to receive interest at a criminal rate, or

(b) receives a payment or partial payment of interest at a criminal rate, is guilty of

(c) an indictable offence and liable to imprisonment for a term not exceeding five years, or

(d) an offence punishable on summary conviction and is liable to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both.

"criminal rate" means an effective annual rate of interest calculated in accordance with generally accepted actuarial practices and principles that exceeds sixty per cent on the credit advanced under an agreement or arrangement;

"interest" means the aggregate of all charges and expenses, whether in the form of a fee, fine, penalty, commission or other similar charge or expense or in any other form, paid or payable for the advancing of credit under an agreement or arrangement, by or on behalf of the person to whom the credit is or is to be advanced, irrespective of the person to whom any such charges and expenses are or are to be paid or payable, but does not include any repayment of credit advanced or any insurance charge, official fee, overdraft charge, required deposit balance or, in the case of a mortgage transaction, any amount required to be paid on account of property taxes.

[emphasis added]

Therefore, the interest rate which the applicant seeks to enforce is defined as a criminal rate of interest pursuant to section 347 of the Criminal Code. The Board, in refusing to enforce such an unconscionable and probably illegal interest rate was motivated by what could only be considered sound reasons of public policy. The parties to the collective agreement in this case have negotiated an interest rate which appears to be contrary to the Criminal Code. The Board can and should decline to enforce any clause in a collective agreement which in all likelihood is illegal.

9. When the Board hears an application pursuant to section 126 of the Act, it is acting as a Board of Arbitration. Section 126(3) provides:

126.-(3) Upon a referral under subsection (1), the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any ques­tion as to whether the matter is arbitrable, and subsections 45 (6.3), (8), (8.1), (8.3) and (9) to (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.

Section 45(8) of the Labour Relations Act dealing with the jurisdiction and powers of an arbitrator states as follows:

45.- (8) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers:

3. To interpret and apply the requirements of human rights and other employment-related statutes, despite any conflict between those requirements and the terms of

the collective agreement.

Thus the Board has the jurisdiction to interpret and apply the requirements of employment related statutes and if there is a conflict between the statute and the collective agreement, to decline to enforce the collective agreement. While not directly applicable to the case before us, the principle encapsulated in section 45(8)3 nevertheless provides some guidance.

10. In addition, the jurisprudence is clear that the Board while hearing an application pur­suant to section 126 of the Act also continues to sit as a statutorily empowered tribunal with all of the discretion and authority provided to it by its enabling legislation (see Re International Associa­tion of Heat & Frost Insulators & Asbestos Workers Local 95 and Master Insulators Association of Ontario et al., 1979 CanLII 1622 (ON HCJ), 99 D.L.R. (3d) 757). Labour relations policy considerations in the construction industry do not support the Board enforcing an interest rate such as is found in the case before us.

11. For the foregoing reasons this request for reconsideration is hereby denied.