Malette Construction v. Nenad Vreca and Ministry of Labour, 2000 CanLII 13502

Ontario Labour Relations Board

2709-99-ES Malette Construction, Applicant v. Nenad Vreca and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 23000742

BEFORE: M. A. Nairn, Vice-Chair.

DECISION OF THE BOARD; April 17, 2000

1. This is an application for reconsideration of a decision dated January 6, 2000 dismissing an application for review under the Employment Standards Act (the "ESA") by reason of its late filing and there being no appropriate grounds to grant an extension for filing.

2. As set out in the decision of January 6, 2000 an application for review of the Officer's Order to Pay made on August 27, 1999 was due to be filed on or about October 11, 1999. It may be that October 11, 1999 was a public holiday and therefore the deadline for filing would have been accepted as October 12, 1999. The application for review was filed with the Board on December 9, 1999. As also noted in the earlier decision, absent an inquiry by a member of the Board's staff, the application may not have been received until later as it appears that counsel believed that the application had been filed, when in fact it had not. The remaining circumstances are set out in the January 6, 2000 decision.

3. The application for reconsideration was filed on March 15, 2000, also outside the time limits for making an application for reconsideration. The applicant asserts that the request for reconsideration was sent by facsimile transmission on January 18, 2000 and counsel has enclosed a transmittal notice apparently confirming that documents were received by the Board on that date. The Board has no record of receiving these materials. It was apparently following a telephone call from applicant's counsel that he became aware of this. The material was then filed in accordance with the Rules.

4. The Board's Rules of Procedure provide:

5. All filings with the Board must be made in the proper form, if any, and in the way required by these Rules.

6. Except for applications covered by Part VI of these Rules, [construction industry applications for certification and/or termination] the date of filing is the date a document is received by the Board at its office.

7. The following may not be filed by facsimile transmission:

(a) applications;

18. Only the following may be filed by facsimile transmission:

(a) responses and representations filed in cases covered by Rules 61 (representation votes), 69 and 135 (certification), 74 and 141 (termination of bargaining rights under section 63 or 132 of the Act), 98 (interim orders) and 100 (strikes or lock-outs);

(b) requests filed in cases covered by Rules 158-159 (grievance referrals in the construction industry) when accompanied by the filing fee and a duly completed Payment of Fee by Credit Card form (Form A-89); and

(c) other documents that are short and urgent.

24. Every case must be started by completing and filing the proper application form and filing any other documents required by these Rules.

25. Appendix B to the Rules also makes it clear that applications for review and requests for reconsideration cannot be filed by facsimile transmission.

26. The request for reconsideration was filed outside the time limits by some considerable margin. The decision in issue is dated January 6, 2000. The Rules provide that a request for reconsideration is to be filed within 20 days of the date of the Board's decision. The deadline was January 26, 2000. The request was received on March 15, 2000. The applicant relies on the assertion that a facsimile transmission was sent on January 18, 2000 and received by the Board. However the Board does not accept applications filed by facsimile transmission. The applicant is aware of this as a result of the Board's letter dated October 25, 1999. At the very least the applicant ought to have been more cautious in determining whether or not the Board's Rules similarly applied to requests for reconsideration. The reason for the Board's Rule is precisely the difficulty that has arisen here. In revisiting and amending its Rules most recently as of August 1999, the Board has determined that there is sufficient concern about the reliability of facsimile transmissions so as to conclude that it is not appropriate to allow originating documents to be filed in that form.

27. Should I grant permission to extend the time and accept the late filing of the request for reconsideration? I am not persuaded that there are appropriate grounds for doing so. Decisions of the Board are final and binding. Parties are entitled to finality. The Rules are clear. The applicant knew or ought to have known that a request for reconsideration filed by facsimile transmission would not be accepted by the Board. The request for reconsideration is therefore denied on that basis.

28. However, even were I to extend the time for filing the request for reconsideration and consider the applicant's submissions, there is nothing in those submissions that would cause me to reconsider the decision of January 6, 2000. The Board's approach to a request for reconsideration is taken in light of the appropriate reference to finality and potential prejudice to other parties arising from delay. Information Bulletin #19 provides that: