1837-98-R Don Park Inc., Applicant v. Sheet Metal Workers’ International Association, Local Union No. 285, Responding Party v. Ontario Sheet Metal Workers’ & Roofers’ Conference, Intervenor.
1984-98-U Sheet Metal Workers’ International Association, Local Union No. 285, Applicant v. Don Park Inc., Responding Party v. Ontario Sheet Metal Workers’ & Roofers’ Conference, Intervenor.
2104-98-G Sheet Metal Workers’ International Association Local Union 285, Applicant v. Don Park Inc., Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair, and Board Members G. Pickell and
G. McMenemy.
DECISION OF THE BOARD; October 25, 2000
This is a request for reconsideration on the Board’s decision dated February 10, 2000.
Section 114(1) of the Labour Relations Act, 1995 (the “Act”) provides the Board with the power to reconsider its decisions. Section 114(1) reads as follows:
(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.
Pursuant to section 114(1) of the Act, the Board has a broad discretion to reconsider any decision or order made by it and to vary or revoke any such decision or order. However, the Board has repeatedly indicated that it will not reconsider its decision unless there are good reasons for doing so. This approach furthers the interests of finality in Board decision making and, in practical terms, discourages parties from seeking delay the implementation of Board orders. The Board has been prepared to reconsider an earlier decision or order when that decision contains an obvious error; where the request raises important policy issues which have not been adequately addressed; when new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously and which could, if accepted, make a difference to the decision; and, where representations are sought to be made which the party had no previous opportunity to make.
A concise statement of the relevant principles the Board has established in deciding whether to grant a request for reconsideration is set out in Cineplex Odeon Corporation, [1996] OLRB Rep. November/December 922 where the Board wrote a paragraph :
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 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 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.
In its request for reconsideration, the applicant has raised two principle arguments. First, that the Board erred in determining that the applicant’s employees in the residential sector of the construction industry were commonly associated in their bargaining with site employees for the purposes of section 126 of the Act. And secondly, that the Board erred by determining that employees on layoff from the applicant were employed on the date of application for the purposes of section 127.2 of the Act. After carefully reviewing the applicant’s request for reconsideration, the Board is not persuaded to reconsider its decision. Without suggesting that all the legal and factual assertions contained in the requests made at the hearing, the essence of the request is in large part an attempt to reargue the case. As previously noted, a request for reconsideration is not the appropriate avenue to do so.
Nevertheless, the Board would like to take this opportunity to make further comment on the definition of “employed” found in section 127.2(2) of the Act. As noted by the applicant, the Board was not persuaded that the term “employed” should be interpreted as meaning actively engaged at work on the date of application. However, the applicant reads too much into the Board’s comments at paragraphs 39-43.
In its decision, the Board made reference to the phrase “employed or may be employed” which is found in section 127.2(1) of the Act. Section 127.2(1) defines the trade union with respect to which a non-construction employer application may be brought. The phrase “employed or may be employed” is in reference to the members of the trade union and permits an application be brought with respect to a trade union which did not have any members employed by the non-construction employer. In its decision dated February 10, 2000, the Board interpreted the phrase “or who may be employed” to be in reference to a trade union’s hiring hall. By interpreting the phrase in such a manner, section 127.2(1) would therefore also apply to a trade union which does not have members employed by the non-construction employer. In other words, those “who may be employed” are those members of the trade union who are not working for the non-construction employer but rather may work for the non-construction employer at some future point in time by virtue of the trade union’s hiring hall.
By way of contrast, section 127.2(2) does not concern itself with defining the affected trade union but rather sets out the conditions which must be present in order for the Board to make a declaration that the trade union no longer represents the employees of a non-construction employer. One of the conditions precedent for the making of such declaration is that the non-construction employer does not employ any employees in the construction industry on the date of application. In this context, the determination of the term “employed” is quite different from the determination of the status of the trade union pursuant to section 127.2(1). Regardless of the meaning attributed to the phrase “employed or may be employed” in section 127.2(1), it is not determinative of the interpretation of “employed” in section 127.2(2). Whatever else it may mean “employed” in section 127.2(2) includes persons “deemed to be employed” by section 1(2).
For the reasons set out above, this request for reconsideration is hereby dismissed.
“John Morgan Lewis”
for the Board