3048‑97‑ES Volker Stark, Applicant v. Kerry's Place (Autism Services) and Ministry of Labour, Responding Parties.
BEFORE: Christopher J. Albertyn, Adjudicator/Referee.
DECISION; January 27, 2000
Previous decisions have been issued in this matter. On June 16, 1999 I issued a decision declaring that the applicant’s duties entitled him to various benefits of employment under the Employment Standards Act (“the Act”). The question of the quantum of damages due to the applicant was left for later consideration. My decision of December 16, 1999 dealt with that. The responding employer has now sought reconsideration of the December 16, 1999 decision.
On November 12, 1999, following submissions on quantum at a hearing for that purpose and relying upon Ontario Nurses’ Association [1998] O.E.S.A.D. No. 199, referred to me by the employer, I issued an oral decision in which I declared the operation of my decision of June 16, 1999 to be for the period April 1994 to April 1996. Subsequently I corrected that portion of the decision when I discovered, between the time of issue of the oral decision and my writing that decision, that the Adjudicator’s decision in Ontario Nurses’ Association had been overturned by the Divisional Court in a decision on April 19, 1999 (Court File No. 261/98, unreported) on the very issue of the period of operation of the Adjudicator’s order. My written decision of December 16, 1999 declared the period of operation of my decision of June 16, 1999 to be from April 1994 onwards indefinitely.
The reconsideration request is made on several grounds. The employer makes the point that it was unaware of the Divisional Court overruling the portion of the Adjudicator’s decision in Ontario Nurses’ Association on which it relied. I accept that. There was plainly no intention to mislead when the submission was made. The employer objects to not being given an opportunity to file representation in respect of the Divisional Court’s decision between the issue of my oral decision and the correction thereof in my written decision of December 16, 1999. I accept it would have been preferable had that opportunity been granted.
The employer submits that the Divisional Court’s decision does not apply to this case because, in this case, the period under consideration was at all stages between April 1994 and April 1996. In contrast, in the Ontario Nurses’ Association case, the period of operation was contested and the Divisional Court found that the Adjudicator had incorrectly restricted the period of operation until the date of the complaint. The employer makes the point that in the Ontario Nurses’ Association case the time frame contested during the hearing went beyond the date of the complaint. That was not so in this case.
If I had jurisdiction to reconsider my decision, I would not have done so. Had the parties had possession of the Divisional Court’s decision in Ontario Nurses’ Association and had the submissions now made by the employer concerning that decision been made at the time of hearing on November 12, 1999, I would not have been persuaded that the Divisional Court’s decision is not applicable to this case, despite the differences in the basis upon which this case and that was contested.
However, notwithstanding the relative merits of the employer’s submissions on the question, I am not at liberty to reconsider my decision of December 16, 1999. I have no jurisdiction to do so. As an Adjudicator/Referee there is no power of reconsideration. That power is acquired by tribunals which operate under a body of Rules. No Rules applied to the discretions exercised by Adjudicator/Referees under the Act. The Act has been amended recently and the powers of Adjudicator/Referees have been transferred to the Board. This matter was dealt with under the regime which applied prior to the amendments. Therefore, while the Board has jurisdiction to reconsider its decisions, including those under the Act, that is not the case in respect of Adjudicator/Referees, such as I am when dealing with this matter.
“Christopher J. Albertyn”
Adjudicator/Referee