Court File and Parties
File No.: 0441-99-U Date: April 4, 2000 Ontario Labour Relations Board
Heather Kachurowski and Corrie Oosterhuis, Applicants v. United Food and Commercial Workers International Union, Local 391W, Responding Party v. The Minute Maid Company Canada Inc., Intervenor.
Before: Gail Misra, Vice-Chair.
Decision of the Board
1The Board has received a request for reconsideration from the applicants regarding its decision of February 25, 2000. As a remedy on the reconsideration application the applicants request that they receive $10,000 per applicant and that the responding party be fined for “misrepresentation and for violating the Human Rights Code”.
2The applicants in this case have had ample opportunity to put their various submissions before the Board, and having considered those submissions, along with the submissions of the responding party and the intervenor, the Board reached its decision of February 25, 2000. The applicants are clearly not satisfied and have asked that another panel or Vice-Chair of the Board be appointed to address their application. The Board’s long-established practice is that the panel, which made the decision in the first place, decides reconsideration applications. There is no reason in this instance to approach this reconsideration application any differently than any other such application.
3The principles the Board applies in deciding whether to grant a request for reconsideration are set out in John Maggio Excavating Ltd., [1994] OLRB Rep. Jan. 31, at paragraph 5:
… 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 decision is obvious – only if Board decisions are considered to be final can they be relied upon as establishing the rights as between the parties.
4In each instance the Board will consider the matter in view of the particular circumstances of the case and will only depart from the usual threshold test if there are compelling reasons for doing so. These reasons may include when a decision is clearly wrong in law or is inadvertently contrary to Board policy. Generally however, parties are not permitted a “second kick” at a case simply on the theory that the decision is arguably incorrect or touches on a matter of significant Board policy. (See Toronto Board of Education (Plant Operations), [1998] OLRB Rep. Jan./Feb. 104 at paragraph 21.)
5It is in light of this established standard that this request for reconsideration will be addressed.
6There is no doubt that the parties to this application, and particularly the applicants, have had ample opportunity to make submissions about the relative merits of the application. The Board has considered the relevant submissions before issuing each of the three decisions that have now been released in this application (on October 26, 1999, January 12, 2000, and February 25, 2000) prior to the present decision.
7The applicants have already made the arguments that they are reasserting in the reconsideration application. The Board has considered the arguments and has commented on those arguments that were relevant to the Board’s inquiry into whether the trade union had breached its duty of fair representation in the February decision.
8The applicants appear to be labouring under the misapprehension that the Board conducts investigations into complaints as does the Human Rights Commission. That is not the mandate of the Board. The Board is an adjudicative body that in this instance has considered the application made, has given the applicants opportunities to clarify their application and to respond to the responses filed by the other parties, and has now reached a final decision. Nothing in the reconsideration request causes the Board to consider this matter further and it is therefore hereby dismissed.
“Gail Misra”
for the Board