418215 Ontario Limited v. Marques, 2000 CanLII 11229

418215 Ontario Limited operating as Trillium Linen Supply Company v. Maria Fatima Marques and Ministry of Labour

File No.: 2069-98-ES Date: January 6, 2000

Before: Anthony Brown, Vice-Chair.

Decision of the Board

1This is a request for reconsideration of a decision of the Board dated September 21, 1999.

2Before assessing the submissions made by the applicant in support of its request, regard must be had to the principles the Board has applied in deciding whether to grant a request for reconsideration. A concise statement of the relevant principles is set out in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 where the Board wrote at page 924:

As to the general principles applicable on applications for reconsideration, there was little dispute. They are distilled in the following two quotations. First from Canadian Union of General Employees, [1975] OLRB Rep. April 320:

11. 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. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC ¶15.493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board’s attention to the objection of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come with the ambit of the principle.

Secondly, from John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 after quoting a portion of the above passage from Canadian Union of General Employees:

These are general standards which the Board has 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.

See also K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, which mentions the motives for the request and any resulting prejudice as factors to be considered.

The Board in that case also stated later at page 927:

"Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed repeatedly in the Board’s jurisprudence. See for instance, Silverwood Dairies, [1977] OLRB Rep. June 392."

3In support of the application, the applicant alleges:

"1. Forgery or perjury.

2. Errors in the decision of the Board about wilfully misleading us about ability to work.

3. Nondisclosure, unwillingness to work and unwillingness to comply with doctor’s and physiotherapist’s instructions.

4. Ms. Marques was not terminated

5. Erroneous and baseless inferences in the Board’s decision, and

6. Complete disregard in the Board’s decision about safety in the workplace.

All these proven by the case record of which we have extracted the exhibits attached and detailed in extra space (one page per main point above)."

The applicant provides attachments which detail these allegations.

4The purpose of the hearing on September 2, 1999 was to determine whether or not the responding party was entitled to notice of termination under the Employment Standards Act ("the Act"), that is, whether or not the order of the Employment Standards Officer should be affirmed. Mr. Yannakouros (principal of the applicant Trillium Linen) testified at the hearing and had every opportunity to provide facts and submissions about the circumstances under which Ms. Marques’ employment was terminated.

5The applicant adduces no facts in this application, or at the hearing, to show that Ms. Marques voluntarily left her employment or that she was guilty of wilful misconduct or neglect of duty. Nor were facts adduced that provide a basis for any other ground that might disentitle her to notice under the Act.

6As stated in the Board’s decision, Mr. Yannakouros maintained under oath that he considered Ms. Marques to have been dishonest about her ability to return to work because she withheld medical information from him. He now repeats these accusations and accuses Ms. Marques of lying under oath. Further, he repeats his allegation that Ms. Marques was babysitting at the time when she was absent from work due to her injuries. He repeats his allegation that Ms. Marques’ alleged refusal to speak English at the work place gave rise to safety concerns. However, it is clear from the Board’s decision that all of these allegations were carefully considered and found either to be unproved or to be insufficient to establish an excuse under the Act for not providing notice of termination.

7The submissions filed with the application for reconsideration add nothing new to the picture. They do not provide new information to the Board that was unavailable at the time of the hearing. The applicant is attempting to reargue its case.

8The request for reconsideration is dismissed.

"Anthony Brown"

for the Board