Ontario Labour Relations Board
File No.: 3881-99-U Date: August 3, 2000
Between: Rose Gatto, Applicant v. The Society of Energy Professionals, Responding Party v. Ontario Power Generation Inc., Intervenor.
Before: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD
1This is a request for reconsideration of a decision by the Board to dismiss an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
2Pursuant to section 114(1) of the Act, the Board has the discretion to reconsider any decision it has made. That section states:
- (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.
3The principles which the Board applies in an application for reconsideration are set out in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, as follows:
The Board exercises its jurisdiction under section 95(1) [now 114(1)] 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 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.
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.
4In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, the Board stated at paragraph 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 case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence to 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 the party's conduct, and the resulting prejudice to another party if the case is reopened.
5The Board may also reconsider a decision if an obvious error has been made or if the request raises significant and important policy issues which have not been given adequate attention or consideration. See, for example, Toronto Board of Education (Plant Operations), [1998] OLRB Rep. Jan./Feb. 104.
6In its decision dated June 15, 2000, the Board dismissed the application on the basis of undue delay. It is undisputed that the key events in this matter took place in 1995. It is also clear that the applicant must have been aware by November, 1997 (at the very latest) that the union would not be pursuing her complaint against the employer. The delay was extensive and very likely to be prejudicial to the responding party and intervenor. Accordingly, the Board exercised its discretion to dismiss the application without a hearing or consultation.
7In the application for reconsideration, the applicant cites the following reasons for the delay: low self-esteem, distrust of the responding party, embarrassment, frustration, humiliation, and difficulty obtaining new employment. She states that she suppressed the "situation" (i.e. her feelings about the union's conduct) until she regained the strength to confront it. This information could have been conveyed to the Board after the applicant received the union's response. However, even if it were not too late to make these submissions, the Board finds that the submissions do not provide a satisfactory reason for the Board to reconsider its decision.
8The Board does not doubt the sincerity of the applicant's submissions. The Board recognizes that some situations can be very stressful, particularly if they involve dismissal from employment. But these are legal proceedings, and a party is not entitled to delay an application for such an extensive period of time simply because he or she is having difficulty dealing with personal circumstances. In exercising its discretion, the Board must consider what effect a delay would likely have on the other parties. All parties are entitled to a fair opportunity to present their case. As the Board observed in its June 15, 2000 decision, it would be unfair to the responding party to permit this application to proceed after the applicant has maintained silence for well over two years. The employer has undergone a significant restructuring. Key personnel have left and certain records were destroyed. Even if the applicant's explanation for the delay were persuasive (and it is not), it must be weighed against the obvious prejudice to the other parties should the matter proceed to a consultation.
9The application for reconsideration is dismissed.
"Anthony Brown"
for the Board