Joseph Giordano v. Canadian Auto Workers Local 27 (CAW) Canada

2798-99-U Joseph Giordano, Applicant v. Canadian Auto Workers Local 27 (CAW) Canada, Responding Party v. General Motors of Canada Limited, Intervenor.

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; May 10, 2000

[1]. This is an application for reconsideration of the Board’s decision in this matter dated February 29, 2000 in which the Board dismissed the application after determining that it was appropriate, in the exercise of its discretion, to refuse to inquire into the application. This application for reconsideration was filed with the Board on May 3, 2000, well beyond the time stipulated in Rule 96 of the Board’s Rules of Procedure for making an application for reconsideration. The applicant, in his reconsideration application, states that he “was not aware that [he] had to file a request for reconsideration within 20 days after the date of the Board’s decision” until after he had “received the form for reconsideration from the Ontario Labour Relations Board on April 17, 2000.”

[2]. The applicant, by letter filed with the Board on March 28, 2000 (the last day on which a timely application for reconsideration could be filed) requested reconsideration of the Board’s February 29, 2000 decision. That letter was returned to the applicant by the Registrar without being processed as an application for reconsideration because it failed to comply with the Board’s Rules. Ultimately, this application was made on May 3, 2000. Given my view of the merits of the application for reconsideration, it is not necessary for me to decide whether to extend the time for making the application for reconsideration.

[3]. Assuming, without deciding, that the time for making the application should be extended to May 3, 2000, the applicant has failed to persuade me that it is appropriate to grant his request for reconsideration. In considering the merits of the application for reconsideration, it is important to have regard to the principles the Board has invariably applied in deciding whether to grant a request for reconsideration. A concise statement of the relevant principles 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:

11. 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 with 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 the 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.

The Board in that case also stated later at page 927:

Reconsideration is not available for the reargument of cases or more creative theories thought of later, in light of new information or jurisprudence; this has been affirmed repeatedly in the Board’s jurisprudence. See for instance, Silverwood Dairies, [1977] OLRB Rep. June 392.

[4]. The applicant asserts that in his “new” application (that is, the one that is the subject of this request for reconsideration) he had filed a seniority list which had come into his possession recently, but was not, I assume, available to the applicant when he filed his first application in Board File No. 1291-96-U. He contends that the seniority list supports his position that the information supplied by the responding party and the intervenor was incorrect and contradictory. That seniority list was included in the material filed with the instant application that gave rise to the Board’s decision of February 29, 2000. The Board dealt with this application on the basis of the material filed by the applicant. The submissions made by the responding party and the intervenor, other than to note that they both requested that the application be dismissed, were not relied on by the Board in making its decision of February 29, 2000. Indeed, the Board’s February 29, 2000 decision stated at paragraph 3:

Both the responding party and the intervenor in this application request that the Board dismiss this application because it does not disclose a prima facie case for the relief requested and because of the undue delay in bringing this application. They both submit that the instant application is virtually identical to the earlier application that the applicant had filed in August 1996 that was withdrawn in May 1997 at the time the parties had been scheduled for a consultation before the Board. In dealing with their request, the Board will only consider the material filed by the applicant to determine whether it is appropriate, in the