1457-98-U Bryon Black, Don Guilbeault and the United Brotherhood of Carpenters and Joiners of America, Locals 18, 446, 494, 2041, 2222 and 2486, Applicants v. James Smith, Douglas McCarron, The United Brotherhood of Carpenters and Joiners of America and The United Brotherhood of Carpenters U.S. and Canadian Pension Funds, Responding Parties v. United Brotherhood of Carpenters and Joiners of America, Local 1946, Intervenor.
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; May 18, 2000
1Counsel for the applicants, by letter to the Registrar dated May 5, 2000, requested that this matter be set down for hearing. The Board, by decision dated November 23, 1999 had adjourned this matter sine die on the agreement of the parties. That decision also noted that the applicants had, by letter dated November 18, 1999 requested reconsideration of the Board’s October 22, 1999 decision in this matter which had determined a motion made by certain of the responding parties to strike three paragraphs from the application.
2The Board did not deal with the applicant’s request for reconsideration of the Board’s October 22, 1999 decision because one day after the request for reconsideration was filed, counsel for the applicants advised that the parties had agreed to adjourn the next scheduled hearing dates and were continuing to engage in serious mediation efforts. The Board wrote in its November 23, 1999 decision at paragraphs 2 and 3:
Before the Board began consideration of the applicant’s request, a letter from counsel for the applicants dated November 19, 1999 advised the Board that the parties had agreed to adjourn the hearing in this matter scheduled for December 13, 1999 because the parties continue to engage in serious mediation efforts in an attempt to resolve this matter. No hearing dates after December 13, 1999 have been fixed as yet.
In my view, given that the parties are engaged in mediation efforts, a decision arising from the request for reconsideration at this time might well affect the dynamics of the mediation efforts. Furthermore, as the parties continue to engage in those mediation efforts and have agreed to adjourn the scheduled hearing, the Board will adjourn this matter sine die. Therefore, unless a party advises the Board that the reconsideration request should be considered and processed further, nothing more will be done in relation to it unless there is a request that this matter be listed for hearing.
Although counsel for the applicants did not, in her May 5, 2000 letter, specifically request that the Board now proceed with her November 18, 1999 request for reconsideration, I am satisfied that her request to have this matter listed for hearing is, by virtue of paragraph 3 of the Board’s November 23, 1999 decision, also a request to proceed with the request for reconsideration.
3The Board, by decision dated October 22, 1999, ruled on a motion made by counsel for the United Brotherhood of Carpenters and Joiners of America (the “International”) and the individual responding parties to strike three paragraphs from the application in this matter (paragraphs 35, 36 and 40) because they did not disclose a violation of the Act even with the additional particulars filed by the applicants and because, in respect of paragraph 35 of the application, it was irrelevant. The Board’s October 22, 1999 decision arose from a decision of the Board (differently constituted) dated January 26, 1999 made in respect of this matter and other related applications. Part II (b) of that decision was concerned with the propriety of the applicant’s pleadings in this matter. That January 26, 1999 decision struck a number of paragraphs from the application on a number of grounds and allowed the applicants to file additional particulars in respect of the three paragraphs that were the subject of the Board’s October 22, 1999 decision.
4The Board in its October 22, 1999 decision dismissed the motion to strike paragraphs 36 and 40 from the application and granted the motion to strike paragraph 35 from the application because it was irrelevant. Counsel for the applicants, by letter dated November 18, 1999, requested reconsideration of the Board’s October 22, 1999 decision. That letter began by stating:
Further to the decision of the Board dated October 22, 1999 with respect to this matter (specifically the decision of Vice-Chair Harry Freedman) this serves as our request for reconsideration of said decision.
Following that introduction, counsel advised that she had not responded to the submissions made by counsel for the International and the individual responding parties with respect to the additional particulars the applicants had filed because the parties were engaged in serious settlement discussions. Counsel wrote:
Insofar as the parties were engaged in serious settlement discussions (following up on the mediation efforts initiated by the Board in this matter) which in fact resulted in the cancellation of the November hearing dates, we did not respond to the objections raised by the Respondent in its response to our “additional particulars”. We did not anticipate that a decision of the Board would issue prior to an opportunity to reply thereto.
Those two sentences constitute all of the grounds the applicants rely upon in applying for reconsideration of the Board’s October 22, 1999 decision.
5Counsel’s letter then sets out detailed submissions concerning the applicants’ reasons for not immediately seeking reconsideration of the Board’s January 26, 1999 decision in this (and other) matters and their basis for asserting that the Board’s January 26, 1999 decision was wrong and should be reconsidered. Counsel’s letter further stated:
In fact, we were awaiting the appointment of a new Vice-Chair to deal with this matter insofar as it was and remains our intention to seek reconsideration of the January 26, 1999 decision of then Vice-Chair Lee Shouldice dealing with various preliminary and procedural rulings. Having been advised that former Vice-Chair Shouldice was leaving the Board prior to the preliminary ruling actually issuing, it made little sense to apply for reconsideration at that time. In a case of this complexity it was important that the Vice-Chair seized to deal with the matter have the opportunity to decide the reconsideration request as “master of the proceeding”.
In hindsight, I should at a minimum have advised the Board and the Respondent of that intention to avoid any confusion about our position. While the mediation effort is continuing, it was certainly not our intention to forego our rights under the Act in the interim and in the event that the mediation proves unsuccessful.
For the record it is our position that Vice-Chair Shouldice erred in law with respect to certain aspects of his preliminary ruling and that we will be precluded from having a full and fair hearing by the improper striking of a number of pleadings central to our case….
I would suggest that the reconsideration issue be dealt with at the next scheduled hearing date insofar as oral argument would likely be the most expeditious manner of dealing with this issue and additionally to allow Vice-Chair Freedman (who is now seized with this matter) the opportunity to raise any questions or concerns insofar as he did not have the benefit of hearing the original positions of the parties in this matter. Please advise if the Board requires any written submissions on this issue in advance of the next hearing date.”
Counsel for the applicants stated in the third paragraph of her letter that “…it was and remains our intention to seek reconsideration of the January 26, 1999 decision….” The applicants have not, as of this date, filed an application for reconsideration of that January 26, 1999 decision. I observe that counsel’s November 18, 1999 letter specifically states it is a request for reconsideration of the Board’s October 22, 1999 decision. The penultimate paragraph of counsel’s letter however seems to suggest that the applicants would like to deal with “the reconsideration issue” at the next scheduled hearing. The “reconsideration issue” to which counsel refers is obviously reconsideration of the January 26, 1999 decision in view of the detailed submissions (which I have omitted) set out immediately before that paragraph and in light of the comment that the oral hearing would permit me “to raise any questions or concerns insofar as he did not have the benefit of hearing the original positions of the parties in this matter”. It is difficult for me to understand how there might be a “reconsideration issue” outstanding when the applicants had not yet filed an application for reconsideration of the Board’s January 26, 1999 decision.
6The Board’s Rules of Procedure which have been in effect since August 1, 1999, provide for both forms and a procedure for making an application for reconsideration. Part VIII of the Rules (the Transition Provisions) provide that the Rules come into force on August 1, 1999 and more importantly, provides in Rule 166 that the “…Rules apply to all cases before the Board on the date these Rules come into force, unless the Board orders otherwise.” Requests for reconsideration are governed by Rules 94 to 96. Those Rules provide:
A request for reconsideration must include complete written representations in support of the request.
Where a party is directed to file a response to the request, it must include complete written representations in support of its position.
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.
The Board has prescribed Form A-49 as the form on which an application for reconsideration must be filed (see Rules 7 and 9). Most importantly, a party seeking reconsideration “must include complete written representations in support of the request” by virtue of Rule 94.
7There is, in my opinion, no basis for the applicants to presume that the Board would either schedule a hearing to deal with a request for reconsideration because their counsel thinks doing so would be expeditious or advise counsel “…if the Board requires any written submissions on this issue [the apparent request for reconsideration of the January 26, 1999 decision] in advance of the next hearing date.” It is up to counsel to provide complete submissions when making the request, not to await the Board advising that it does not have enough to decide and wants more. If counsel chooses not to file complete submissions, then counsel risks having her application dismissed. The Board is under no obligation to advise counsel that more submissions must be filed to obtain the relief requested.
8The only actual request for reconsideration before me is the request set out at the beginning of counsel’s letter of November 18, 1999, that is, a request for reconsideration of the Board’s October 22, 1999 decision. (I have accepted that letter as a request for reconsideration even though it was not filed on the requisite form or in accordance with the Board’s Rules.) Counsel submits as her basis for reconsideration that she did not make submissions in response to the objections raised to the particulars the applicants had filed because she did not anticipate a Board decision would issue “prior to an opportunity to reply” to those objections.
9The applicant’s particulars were filed in February 1999. The objections to those particulars were filed by counsel for the International and individual responding parties on March 5, 1999. Counsel for the applicants filed detailed and comprehensive submissions in response to those objections on March 15, 1999. The Board received nothing further until counsel for the International and the individual responding parties wrote to the Board on September 29, 1999 requesting that the Board determine the issues raised by the objections he had made in his March 5, 1999 letter. A copy of that letter appears to have been provided to counsel for the applicants. Counsel for the applicants did not respond to that letter before the Board’s October 22, 1999 decision was issued.
10In these circumstances, I am satisfied that not only did counsel for the applicants have an opportunity to respond, she, in fact, did respond to the objections raised to the particulars as is evident from her detailed submissions of March 15, 1999. There is in my view simply no proper basis for counsel to assert that she “did not respond to the objections raised by the respondent in its response to [their] additional particulars” when her March 15, 1999 letter was a direct, detailed and comprehensive response to those objections. Furthermore, she had ample opportunity to respond to the letter of September 29, 1999 because there was nothing in that letter or in any communication from the Board to suggest that the Board would not determine the issue raised. Thus, I am not persuaded that there is any proper basis on which the Board could rely to reconsider the Board’s decision of October 22, 1999.
11This application for reconsideration is dismissed.
“Harry Freedman”
for the Board