Court File and Parties
File No.: 1601-01-U Applicant: Cynthia Ababio Responding Party: Canadian Union of Public Employees Local 967 Intervenor: CSA International
Before: Mary Anne McKellar, Vice-Chair
Decision of the Board: December 20, 2001
Decision
This decision deals with a request for reconsideration of the Board’s decision dated October 17, 2001 (“the Decision”).
By the Decision, the Board dismissed the applicant’s application under section 96 of the Labour Relations Act, 1995 (“the Act”), which alleged that the responding party trade union (“CUPE”) had contravened section 74 of the Act.
By letter dated October 29, 2001, and transmitted to the Board by facsimile on October 30, 2001, the applicant acknowledged receipt of the Decision. She took exception to the Board’s comments contained in paragraphs 3 – 5 of the Decision indicating that she had failed to file submissions pursuant to the Board’s earlier direction in its decision dated September 25, 2001, that she respond to CUPE’s request that her application be dismissed without a hearing:
I did not receive any letter as indicated in [paragraph] No. 3 of the Board’s decision. The only letter I received from the Board was Form B-21, Confirmation of Filing and Delivery of Application. I did initiate this procedure and I intend to pursue it. If I had received any of the above I would have submitted my response.
I hereby request for reconsideration (Form A-49). Contrary to the information of the Vice-Chair’s decision, I was not given the opportunity to respond to CUPE’s position.
The applicant’s letter dated October 29, 2001 requesting reconsideration of the Decision, was apparently copied to CUPE and to her former employer. However, the request was not made on the proper Form and no Certificate of Delivery was filed with the Board.
An original copy of Form C-24, Notice of Request for Reconsideration, was filed with the Board on November 14, 2001. In accordance with its usual practice pursuant to Rules 17 and 18 of the Board’s Rules of Procedure, the Board treated the request for reconsideration as having been made on the date this original material was filed with it.
In Form C-24, the applicant requests the following relief:
(1) I would like a hearing. I do not want my decision to be dealt with by written representations.
(2) Order for my personal file from CSA.
(3) Order the Union for the notes taken during the hearing.
(4) Order the Union to compensate me for pain and suffering.
The applicant attached a four-page typed document to Form C-24. It appears to constitute her response to CUPE’s request that her application be dismissed without a hearing. Nowhere in Form C-24, or the attached document does the applicant set out the grounds on which she seeks to have the Board reconsider the Decision.
Rules 94 – 96 of the Board’s Rules of Procedure govern reconsideration requests:
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 applicant’s reconsideration request filed on November 14, 2001, clearly falls afoul of the requirements as to content in Rule 94. It was also filed on the last possible day on which it could be considered timely pursuant to Rule 96. Any fresh application with the specified content would be untimely. The Board is prepared to exercise its discretion to relieve against the strict application of those rules, and treat the request as having been made in a timely fashion, by considering the grounds for the request to be those set out in her letter of October 29, 2001, that is, the assertion that she was deprived of the opportunity to respond to CUPE’s request that the application be dismissed without a hearing because she did not receive the Board’s Decision dated September 25, 2001.
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)
Based on the above considerations, the Board finds that it would be appropriate to reconsider the Decision if the Board could conclude in fact that the applicant was not provided with an adequate opportunity to address CUPE’s submissions prior to its issue. In the circumstances of this case, the Board is prepared to assume that this was the case, without actually making that finding.
Accordingly, the Board has now reviewed the applicant’s submissions in response to CUPE, which she has set out in the documents attached to her November 14, 2001 reconsideration request. Upon review of these submissions, the Board declines to vary the Decision.
In the Decision, the Board noted that the crux of the applicant’s allegations related to the quality of the advocacy provided to her by CUPE at the arbitration hearing in respect of her termination. She insisted in her application that CUPE should have retained an experienced lawyer to represent her; and that certain witness who were not called should have been. Her reconsideration request contains similar assertions. In the Decision, the Board noted that the statutory duty of fair representation did not oblige CUPE to retain a lawyer on her behalf, and further concluded that the testimony she proposed should have been called was of no probative value. A review of the arbitration award led the Board to conclude that the arbitrator simply did not believe the applicant. Finally, in dismissing the application, the Board in the Decision noted that “the remedies the applicant has requested are not ones the Board would be inclined to order”.
The applicant does not seek to make any new allegations of fact not previously available to her, or to make new representations she did not previously have the opportunity to make. In her reconsideration request, she has essentially restated the assertions contained in her application, albeit in somewhat different detail. Her remedial requests contained in the application and in the reconsideration request are not ones the Board would be inclined to grant in such proceedings.
The Board declines to reconsider and vary the Decision.
“Mary Anne McKellar”
for the Board