1173-99-U Janet Eta, Applicant v. Toronto Civic Employees’ Union, Local 416, Responding Party v. Toronto Public Library Board, Intervenor.
BEFORE: Caroline Rowan, Vice‑Chair.
DECISION OF THE BOARD; April 13, 2000
1The legal agent for the applicant filed a request for reconsideration on her behalf of the Board’s earlier decision dated October 15, 1999 (the “Decision”). The applicant’s request for reconsideration was filed on March 31, 2000, approximately five (5) months after the Decision was released. In the Decision, the Board dismissed a number of the allegations contained in the applicant’s complaint made pursuant to section 74 of the Labour Relations Act, 1995 (the “Act”).
2Pursuant to section 114(1) of the Act, the Board has discretion to reconsider any decision it has made. Section 114(1) 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 Board has also adopted specific rules governing requests for reconsideration in its Rules of Procedure effective August 1, 1999. Rule 96 of the Board’s Rules of Procedure states as follows:
- No request for reconsideration will be considered where it is filed more than twenty (20) days after the date of the Board's decision, except with the permission of the Board.
4This request for reconsideration was, however, filed more than five (5) months after the date of the Decision. The only explanation provided by the applicant for this lengthy delay is that the applicant’s legal agent was under the mistaken belief that the applicant had received a copy of the Decision directly from the Board. There is, however, no suggestion that the applicant’s legal agent did not receive a copy of the Decision at the time it was issued. In these circumstances, the Board finds that the applicant has not provided a reasonable explanation for why this application for reconsideration was not filed in a timely fashion. In the absence of any compelling reason for the delay, the Board is not inclined to exercise its discretion to extend the time limits. The Board also notes parenthetically that its records indicate that a copy of the Decision was, in fact, sent to both the applicant’s legal agent and the applicant (at the address listed in her application) when the Decision was released.
5In any event, for the reasons that follow, the reconsideration application would have been unsuccessful.
6The principles which the Board applies in an application for reconsideration are set out in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb.185, as follows:
- 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 or 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 a party’s conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC ¶16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. Nom Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132. (Ont. Div. Ct.).
7The applicant firstly argues that the Board erred in dismissing the allegations contained in the complaint that the union mishandled the arbitration by failing to pursue the systemic discrimination and OHSA reprisal arguments. The Board did so on the basis that these allegations were previously dismissed by the Board in its September 17, 1997 decision (the “1997 Decision”), which was made in the context of the applicant’s prior complaint in Board File No. 0748-97-U. In support of the request for reconsideration, the applicant submits that “[t]his complaint is based on an allegation that it was arbitrary not to pursue those matters based on the evidence that emerged at the hearing itself after Ms. Eta testified for several days”. With respect to this submission, the Board notes that there are no material facts pleaded in the application regarding events occurring after the Board’s 1997 Decision, which would persuade the Board to revisit and entertain those allegations again.
8The applicant also argues that the Board erred in its Decision in dismissing that portion of the application concerning the union’s alleged failure to advise her properly concerning mitigation. The Board did so on the basis that the allegations raised in the application on this issue do not make out a prima facie case of a violation of section 74 of the Act. With respect to the applicant’s concern that the Board relied on information contained in the response and/or intervention in reaching its decision, the Board notes that its Decision was based only on the material facts set out in the application itself. That is, the Board accepted those facts to be true for the purposes of the preliminary motion. In addition, the Board notes that it is evident from the application that the applicant was also represented by a legal advisor of her choice at the outset of the arbitration process.
9The Board further notes that in order to establish a breach of section 74 of the Act, the union’s conduct must be either:
“arbitrary” – that is, flagrant, capricious, totally unreasonable, or grossly negligent [see, for example, ITE Industries Limited, [1980] OLRB Rep. July 1001]; or
“discriminatory” – that is, based on invidious distinctions without reasonable justification or labour relations rationale; or
“in bad faith” – that is, motivated by ill will, malice, hostility or dishonesty.
In assessing a complaint, the Board considers whether the actions of the union fall into one of these three categories. Mistakes or misjudgements by the union do not violate the Act.
10In the Board’s view, the pleadings relating to the issue of mitigation do not establish that the union has acted arbitrarily, discriminatorily or in bad faith as those terms have been interpreted by the Board. There is no suggestion that the union acted in bad faith, as for example, if the facts pleaded had suggested that the union deliberately misled the applicant regarding her obligations to mitigate her damages out of ill will or malice towards her. There is further no suggestion that the union’s failure to advise her properly about mitigation represents “discriminatory” treatment toward the applicant.
11The application itself reveals that the union negotiated with the applicant’s employer concerning her grievance and that the union then took her grievance to arbitration with the result that the applicant was reinstated to employment at the St. Clair/Dufferin Library branch, which reinstatement she was seeking as a remedy. As noted above, the application itself reveals that the applicant was also represented by a legal advisor of her choice at the outset of the arbitration process. In all of the circumstances, the Board is not persuaded that the union’s alleged failure to advise her properly concerning mitigation (which is assumed to be true for these purposes) was so grossly negligent that it reveals a flagrant disregard for the applicant’s interests and amounts to “arbitrary” conduct.
12However, even if the Board is wrong that no prima facie case of a violation has been made out, the Board notes that it has the discretion under section 96 of the Act to determine whether it will inquire into a complaint of a contravention of the Act. The Act further specifically relieves the Board of the requirement to hold a hearing where it is alleged that section 74 of the Act has been breached.
13As noted in the Decision, the applicant was reinstated to employment at the St. Clair/Dufferin branch in accordance with the parties’ agreement that such reinstatement would be automatic if the arbitrator determined that she was not entitled to retroactive compensation. Pursuant to the terms of the parties’ agreement, if the arbitrator had decided otherwise, her entitlement to reinstatement at the St. Clair/Dufferin branch would have been remitted to arbitration with all of its attending risks and delays. The applicant is now effectively complaining about the union’s alleged failure to advise her concerning mitigation, which resulted in her failure to obtain retroactive compensation, at the same time that she is enjoying the benefit (i.e. reinstatement to the St.Clair/Dufferin branch) of the arbitrator’s refusal to award retroactive compensation.
14In all of the circumstances, the Board is not persuaded that any labour relations purpose would be served by inquiring into the applicant’s complaint concerning mitigation and the resulting failure of the arbitrator to determine that she is entitled to retroactive compensation for her losses. In addition, given the facts as pleaded in the application, there is nothing pleaded which would lead the Board to conclude that the applicant has a reasonable chance of success on this issue. Accordingly, in all of the circumstances, the Board would, in any event, exercise its discretion and dismiss the applicant’s complaint relating to the issue of mitigation.
15For all of these reasons, the applicant’s request for reconsideration is denied.
“Caroline Rowan”
for the Board