SERCA Foodservice Inc. v. Association of Employees of SERCA Foodservice (Hamilton)
1736-99-U SERCA Foodservice Inc., Applicant v. Association of Employees of SERCA Foodservice (Hamilton) and Craig Roberts, Bob Lamothe, Al Simons, Hugh Mills, Keith McConnell and Charles Bourgeois in their individual capacity as well as their capacity of officer, officials and agents of the Association of Employees of SERCA Foodservice (Hamilton), Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; August 17, 2001
This is a request for reconsideration of a decision rendered by me on September 17, 1999. In that decision I concluded that certain persons had engaged in an unlawful strike; counselled an unlawful strike and in their capacity as officials of the trade union, engaged in acts which they knew or ought to have known would result in others engaging in an unlawful strike.
Two of the individuals against whom those orders were made seek reconsideration of that decision, nearly two years later.
Rule 96 of the Board’s Rules of Procedure provides:
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.
Counsel for the applicants asserts that his clients were not represented at the hearing into the strike, and the short time within which the matter was scheduled prevented them from seeking legal advice and representation. Counsel explained that a request for reconsideration was not filed in a timely way because at that time, they did not believe that their own evidence would have made a substantial difference to the outcome of the application as against them. However, in late 2000, the applicants came to realize that a witness might be willing to come forward to testify on their behalf, but not until he received the termination and severance package he was expecting. I understand that the witness swore out an affidavit in February 2001 and agreed in April 2001 that the affidavit could be disclosed. Although the affidavit is quite detailed, it essentially sets out the witness’ view that the applicants did not engage in a work slowdown, nor counsel others to do so. Further, the witness stipulates that a witness who gave testimony at the Board about the actions of the applicant lied, admitted later that he lied ,and asked the deponent of the affidavit to corroborate his story.
The applicants ask the Board to amend its decision of September 17, 1999 and remove their names from the list of persons found to have breached the Act.
The Board has generally resisted requests for reconsideration, largely because to do otherwise would detract from the finality principle: the decisions of the Board are intended to be conclusive. The Board has set out, however, circumstances in which it will reconsider a decision. In K-Mart Canada Limited (Peterborough), [1981] O.L.R.B. Rep. Feb. 185, at para. 4, the Board wrote:
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 cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or 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 a party's conduct, and the resulting prejudice to another party if the case is reopened. (See, generally International Nickel Company of Canada, 63 C.L.L.C. 16,284; The Detroit River Construction Limited, 63 C.L.L.C. para. 16,260; National Steel Car Corporation Limited, [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. Nom. Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 C.L.L.C. para. 14,132, (Ont. Div. Ct.).
The Board has rarely had to deal with a reconsideration test that is so untimely. The significant passage of time in this case is extremely prejudicial, even to my own consideration of the merits of the reconsideration request, let alone the substantive dispute. I have not retained my notes of the testimony that was tendered and submissions made. I am not even able to confirm the applicants’ submission that they were unrepresented at the hearing. My own recollection is that a lawyer in the same firm who is now representing them spoke on their behalf at the hearing, but again, without my notes, I am unable to verify my memory.
The decision of September 17, 1999 indicates on its face, that the declarations with respect to unlawful activity were made on the agreement of the parties. Counsel for the applicants submits that only two of the parties, and not his clients, agreed to the declarations. Again I cannot confirm which view is accurate nearly two years after the decision was written.
In this case the prejudice due to delay is not speculative, but very real. The ability of the Board to render a fair decision would be compromised if I were to extend the time for making the reconsideration request. This application is dismissed.
“Mary Ellen Cummings”
for the Board