Ontario Labour Relations Board
0167-97-OH Rachelle Martin, Applicant v. Amdahl Canada Ltd., Responding Party.
BEFORE: Brian McLean, Vice-Chair, and Board Members J. A. Rundle and H. Peacock.
DECISION OF THE BOARD; October 31, 2000
1This is a request for reconsideration of the Board’s decision dated April 18, 2000.
2The applicant has filed substantial materials in support of her request for reconsideration. While some of these materials have been filed outside of the time the Board sets for applications for reconsideration, they have all been reviewed in consideration of the applicant’s request.
3The Board’s practice in considering requests for reconsideration is well established and 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:
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 within 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.
4In this request for reconsideration, other than the point made in paragraph 3(A)(1) of the request dated May 8, 2000, the applicant does not propose to introduce new evidence or new arguments which could not have been obtained or made at the time of the hearing into these matters. Quite simply, for the most part, this request for reconsideration is, on its face, an attempt to reargue this case. The bulk of the request for reconsideration can be dismissed on that basis alone.
5The only point which could even arguably constitute a legitimate ground for reconsideration under the Board’s Rules and Practices was in relation to the letter dated January 25, 2000 which counsel for the employer sent to the Board. The applicant asserts that the Board was biased because they were delivered a copy of the letter. The Board notes that the applicant does not deny that she was in receipt of this letter prior to the Board’s decision in this matter and made no objection to it. More importantly, the Board did not rely on the letter in any way when making its decision, to the extent this panel of the Board was even aware of its existence.
6As for the material set out under the title “Facts That The Applicant Would Like The Panel To Reconsider”, we say only this. The Board carefully considered all of the evidence presented to it at the hearing into this matter. In coming to its decision regarding the applicant’s credibility, we considered her demeanour on the witness stand, her answers to the questions posed to her, and her conduct at the time of the events. Quite simply, taking into consideration all of these factors, we did not believe that the applicant was concerned about her health and safety when she refused to print documents at the time of the incidents giving rise to this application. We came to this conclusion despite the veiled references the applicant made to health and safety in her correspondence with the company.
7In addition to the arguments filed by the applicant’s counsel in respect of this request for reconsideration, the applicant also filed other material. This material was filed outside of the time set by the Board’s Rules of Procedure. Nevertheless, the Board will comment on it. The first is an “opinion” letter from Legal Agent Harry Kopyto. Part #2 of that letter criticizes the Board’s decision for its reliance on “both an objective and subjective element to the exercise of a section 50 … right”. In addition, paragraph 36 of the Board’s decision is attacked for making a distinction between “a real concern” about health and a “limited” concern about health.
8In our view, both these points are answered above. To reiterate: the Board, having heard all of the evidence and taking into consideration the applicant’s demeanour, testimony and other relevant factors, was not convinced that the reason she refused to print more documents was out of a genuine, subjective concern for her health and safety.
9Mr. Kopyto’s letter also seeks to distinguish the caselaw relied on in the Board’s decision. However, these arguments were made by counsel at the hearing into this matter. Even if specific cases are not referred to in its decision, the Board read all of the caselaw provided by the parties and took into consideration the arguments made with respect to that caselaw.
10The final document submitted by the applicant was a 38-point list of facts which she disagreed with. Again, the Board came to its findings of fact based on the evidence presented to it. This is simply an effort to re-litigate the case and to try to have new testimony admitted through the backdoor. However, there are a couple of points which ought to be responded to.
11In point 25 the applicant asserts that the Board would not let Dr. Coughlin testify. This is true. What is not stated, however, is that the Board, in its decision dated September 21, 1999 accepted as fact the testimony he was going to give. In other words, Dr. Coughlin’s testimony could have added nothing to the proceedings, as the Board accepted his proposed evidence as fact.
12Among other points, point 36 demonstrates the reasons which, in part, account for the Board’s concerns about the applicant’s credibility. The applicant on two occasions, orally and in writing, referred to “frog bashing” as one of the reasons (and indeed the primary) for her refusal to print more documents. At the hearing, she admitted that concern was false. In point 36 the applicant refers to this as “a mere off the cuff comment blown out of context”. The applicant’s statement that a (false) accusation of racism is an off‑the‑cuff comment or could somehow be taken out of context is symptomatic of the facts that caused the Board, after hearing all of the evidence, to conclude that the applicant is not a credible witness.
13For all of the foregoing reasons, the application for reconsideration is dismissed.
“Brian McLean”
for the Board