1755-01-U Susan Marie Hinchey, Applicant v. Local 222 of the National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada), Responding Party v. General Motors of Canada Limited, Intervenor.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; December 7, 2001
This is a request for reconsideration of the Board’s decision dated October 29, 2001 that was filed with the Board on November 16, 2001. In that decision the Board dismissed the applicant’s complaint under section 74 of the Labour Relations Act, 1995 (the “Act”) on the basis of delay. The facts giving rise to the complaint occurred over four (4) years ago.
Pursuant to section 114(1) of the Act, the Board has discretion to reconsider any decision it has made. Section 114(1) states:
(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.
As stated in Robert Dickson, Superintendent, Sarnia Jail, unreported, Board File No. 1869-97-U, decision dated October 21, 1997, Q.L. cite [1997] O.L.R.D. No. 3512:
… the Board has a broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations also require the Board to operate from the premise that a Board decision is final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board will generally not 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 where 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 a party to re-argue its case, either de novo or as some form of appeal.
There is some useful background to this application. The applicant filed an earlier application alleging a breach of section 74 against the responding party (“the union”) on June 10, 1999. The union and the employer responded to that application asserting that it did not disclose any material facts upon which an application could be based nor did it disclose a claim or allegation which constituted a violation. That application was dismissed by decision dated July 21, 1999 as lacking in particularity. The applicant was advised in that decision that it was dismissed without prejudice to her right to file a new application that conformed with the Board’s rules. That decision was reconsidered and on October 26, 1999 it was denied. The issue dealt with in that case and upon which a decision and a reconsideration were based was simply that the application did not outline the material facts upon which the application or the alleged violation by the union was based.
This application was filed on September 24, 2001. The issue of delay was raised in respect of this application. In the request for reconsideration the applicant contends that the union and the intervenor (“the employer”) did not follow proper procedures in the filing of her grievance. She elaborates on the allegations concerning her termination.
The applicant contends that the delay argument has no bearing on whether or not she was properly represented for 14 years. She reiterates her allegations in the form of a chronology of events. She also advises of the difficulty she has had in preparing the information for the Board because it was complex, stressful and a financial hardship.
This application suffers from delay in two ways. First, there is no dispute that the facts giving rise to this application occurred in 1997. That was over 4 years before the filing of this application. Second, the Board issued a decision dealing with the matter on the basis of lack of particulars July 21, 1999. That was over 2 years ago.
The applicant dealt with the union (unsuccessfully from her perspective). After a period of time she could reasonably have concluded that the union was not going to satisfy her concerns in the way that she hoped. She contends that she sought legal advice in June of 2000. At that time she was in possession of all the facts upon which she relied in support of her claim. She still did not file this application until September 24, 2001 some 15 months after she sought that advice and over 2 years after the original decision. That too is a significant delay.
There is a point in time following which the responding parties cannot defend a claim and after which it is reasonable for parties to assume that a matter will no longer arise. In the context of section 74 applications, that period of time is often calculated in months and not years. In this case the delay is extreme.
The applicant asserts that in July 21, 1999 the Board dismissed her application without prejudice to the applicant’s right to file a new application which complies with the Board’s rules. The Board noted in its decision of October 29, 2001 that even at that point (July 1999), the application was significantly delayed. The applicant expressed concern that no mention of delay was made in the July 21, 1999 decision.
When the Board says that a fresh application may be filed without prejudice to a first application it means that a party cannot rely solely upon the fact of the dismissal of the first application to defeat the fresh application. It does not mean that the usual standard (including considerations of delay) will not be dealt with in the ordinary course. It also contemplates that a new application will be filed expeditiously if one is going to be filed. The decision of July 21, 1999 did not preclude the other parties to the application from raising the issue of delay and the Board from determining that issue as it did in the later decision.
The applicant does not seek to introduce new evidence nor raise issues which would lead the Board to reconsider its decision of October 29, 2001.
Having regard to the reasons cited above, this request for reconsideration is hereby denied.
“Marilyn Silverman”
for the Board