Betty Jane Burkitt v. Office and Professional Employees International Union, Local 491
File No.: 3032-98-U Date: December 20, 2000
Applicant: Betty Jane Burkitt Responding Parties: Office and Professional Employees International Union, Local 491, Linda Morin, President, Diane Ouimet, National Vice-President, and Lin Pennesi, Ontario Regional Vice-President Intervenor: Canadian Union of Public Employees
Before: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD
By letter dated December 7, 2000, the applicant appears to request reconsideration of the Board’s decision of July 5, 2000, the narrative of which reads as follows:
Having regard to the agreement of the parties, the Board hereby consents to adjourn this application sine die.
The responding party, Office and Professional Employees International Union, Local 491 (“OPEIU”) agrees to adjourn if, within a six month period, the applicant must elect whether or not to have the matter re-listed for a consultation.
This application was filed on December 1, 1998 and has been adjourned previously on the consent of the parties. The apparent reason for the present adjournment is to provide the applicant time to retain and instruct new legal counsel. In the circumstances, the OPEIU’s request is reasonable.
The adjournment is for a period not exceeding six months. Unless within that time the applicant requests that the Board proceed with the matter, it will be deemed terminated without any further notice to the parties.
In effect, the applicant seeks to substitute the six-month adjournment granted in the Board’s previous decision with a thirteen-month adjournment (expiring August 5, 2001). The reconsideration is opposed by the Office and Professional Employees International Union, Local 491.
The 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.
- In 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.
The 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.
The applicant’s request does not fall within the parameters suggested by the Board’s jurisprudence concerning reconsideration. Moreover, the request is clearly outside the time limits for the filing of a reconsideration as set out in Rule 96 of the Board’s Rules of Procedure, and the applicant has not provided any compelling reasons why the Board should permit her to file a late reconsideration application.
The request for reconsideration is denied.
Pursuant to the Board’s decision of July 5, 2000, the applicant must request, by no later than January 5, 2001, that the Board proceed with her application, otherwise the application will be deemed terminated.
“Patrick Kelly”
for the Board