Ontario Labour Relations Board
File No.: 0173-01-U
0173-01-U Carol Belleperche, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Responding Party v. Ford Motor Company of Canada, Limited, Intervenor
BEFORE: Mary Anne McKellar, Vice-Chair
DECISION OF THE BOARD; November 6, 2001
This decision deals with a request for reconsideration of the Board’s decision dated October 9, 2001, which communicated the Board’s oral ruling dismissing the within application on August 28, 2001.
The application alleged that the responding party, the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (“the Union”) had contravened section 74 of the Labour Relations Act, 1995 (“the Act”). The application was scheduled for consultation on August 28, 2001. Prior to the commencement of the consultation, the applicant sent a facsimile transmission to the Board indicating that she would not be attending. The Board nevertheless waited until 10:00 a.m., and when the applicant was not in attendance at that time, the Board granted the Union’s request that the application be dismissed.
The Board’s decision of October 9, 2001, in addition to communicating the oral ruling to dismiss, also contained a lengthy explanation of the Board’s processes and history of dealing with this file (“the Board’s Reasons”). The Board’s Reasons were provided in view of the applicant’s suggestions in her correspondence to the Board that its processes were flawed and biased and that she had chosen not to attend the consultation for that reason.
One of the things noted in the Board’s Reasons was that the applicant appeared not to appreciate the distinction between pleadings and evidence. In Paragraphs 18 and 19 the Board attempted to clarify the difference between the two, and to explain why the application could not be granted merely on the basis of the documentary information provided by the applicant:
To the extent that the applicant suggests that the Board’s refusal to find a contravention of section 74 on the basis of the material filed was somehow improper or unfair, it appears to the Board that she is perhaps confused with respect to the difference between pleadings and evidence, and with respect to who bears the burden of proof in an application alleging a contravention of section 74 of the Act, and how that fits with the concept of a prima facie case. The following paragraph may assist in clarifying these distinctions, and the Board’s decisions.
19..The applicant alleges a contravention of section 74. It is therefore up to her to plead facts which, if established in evidence, could ground a claim for the relief requested. Upon review of her application, any other party may argue that even assuming all the facts alleged can be proven, the application could not succeed. Thus, for the sole purpose of determining whether there is a prima facie case which the responding party and intervenor must answer, all factual allegations in the application are assumed to be capable of being proved in evidence. If the application is not dismissed for failure to state a prima facie case and proceeds to a consultation or a hearing, however, those facts are no longer assumed to be true, but must in fact be proven in evidence. Had the applicant attended the consultation, it is entirely possible that she and the responding party might have agreed with respect to certain facts, for example the duration of her employment with the intervenor, and the Board would have accepted that agreement as evidence of the facts agreed to. It is possible that other facts pertinent to the application might have been disputed, and the Board would have had to hear testimony (including examination and cross-examination of witnesses) in respect of those matters. In any event, the point is simply that the application and the subsequent assertions in the applicant’s correspondence with the Board do not constitute evidence, such that a finding of a contravention of the Act could ever have been found based on that material alone. Even had the applicant been the sole party to attend the consultation, or even had there been no response or intervention filed, she would still have been required to provide the Board with evidence to establish her case. Since she did not attend the consultation, there was no evidence led on the basis of which the Board could have found in her favour.
(emphasis added)
Notwithstanding the above, the applicant’s reconsideration request seeks to have the Board “acknowledge and then consider the evidence that I have already presented to it”.
The Board’s authority to reconsider its final decisions is set out in section 114(1) of the Labour Relations Act, 1995 (“the Act”):
114(1) The Board has the 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 so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
- The Board’s power to reconsider is thus discretionary, and in William Hill Jr., [1995] O.L.R.B. Rep. 1437, the Board set out the principles informing its exercise of this discretion:
Pursuant to this provision, the Board has a broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations, also demand that the Board operate from the premise that a Board decision be final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board has in the past generally declined to reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or if a party seeks to make representations which it has had no previous opportunity to make. Section 114(1) of the Act is not intended to provide an opportunity for someone to make representations s/he had the opportunity but chose not to make, or an opportunity for someone to re-argue his/her case, either de novo or as some form of appeal. (at paragraph 3)
Applying the above principles to the circumstances of this case, there is clearly no basis for reconsidering the Board’s decision where the applicant seeks only to have the Board review the material that was already available to it when the application was dismissed.
Furthermore, the Board in both William Hill Jr., supra, and in Howard Buchin, [1991] O.L.R.B. Rep. July 815, has noted that it has consistently declined to reconsider its decisions where the party seeking reconsideration had notice of the original hearing and failed to appear. The applicant had notice of the consultation and chose not to appear. In and of itself, her failure to appear would have persuaded the Board not to exercise its discretion in her favour.
The request for reconsideration is dismissed.
“Mary Anne McKellar ”
for the Board