Ontario Labour Relations Board
1906-98-ES National Automobile, Aerospace, Transportation and General Workers Union of Canada (CW-Canada) and its Local 396 on behalf of the employees named in Schedule “B”, Tabs 1, 2 and 3, Applicants v. Zettel Metalcraft Ltd., Zettel Manufacturing Limited, 506165 Ontario Limited cob as Trillium Metal Stamping, and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30006225
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; April 10, 2001
This is an application for reconsideration of the Board’s decision in this matter dated February 27, 2001 in which the Board declined to make an Order to Pay in respect of former non-union employees of Zettel Metalcraft Ltd. (“Metalcraft”). This application for reconsideration was brought by Laurie Roberts and filed with the Board on April 6, 2001, beyond the time stipulated in Rule 96 of the Board’s Rules of Procedure for making an application for reconsideration. In her reconsideration application Ms. Roberts, states that she “only received the request package on March 31, 2001” and requests that the lateness in filing the application for reconsideration not disqualify her reconsideration request.
Ms. Roberts was a former non-union employee of Metalcraft. The Board file in this matter indicates that she had been notified of the hearing in this matter, and has been sent copies of all decisions arising in this proceeding. She did not participate in the hearing.
Given my view of the merits of the application for reconsideration, it is not necessary for me to decide whether to extend the time for making the application for reconsideration, or, for that matter, to make any determination about the appropriateness of a non-participating party to request reconsideration.
Ms. Roberts’ request for reconsideration states that the basis for her request is as follows:
I find it inequitable and unjust that all the union employees and 9 of 13 non-union employees received compensation, yet only 4 people, including me received nothing. I worked for Zettel Metalcraft for 10 years, I filed my application with the Board and whenever I called to ask questions, Esther and others told me everything was under control and that there was nothing else for me to do. Therefore, why have I received nothing.
The relief requested is termination pay and severance pay.
The principles which the Board applies in an application for reconsideration are set out in John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096, as follows:
The Board exercises its jurisdiction under section 95(1) [now 114(1)] of the Act to reconsider and vary or revoke any decision with care and caution in order not to undermine the finality of its decisions and, as stated by the Board in Canadian Union of General Employees, [1975] OLRB Rep. April 320:
Generally, the Board will not reconsider a decision unless a party proposes to adduce evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.
These are general standards which the Board has developed as guidelines and which are useful not just to guide the Board in making its decisions, but also to allow parties who may be affected by the Board’s decisions some degree of certainty of what to expect from the Board. While it is important for the purpose of certainty that these standards generally be adhered to, it is equally important that they not be followed inflexibly.
- In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, the Board stated at paragraph 4:
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 case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or to 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 the party’s conduct, and the resulting prejudice to another party if the case is reopened.
The Board may also reconsider a decision if an obvious error has been made or if the request raises significant and important policy issues which have not been given adequate attention or consideration. See, for example, Toronto Board of Education (Plant Operations), [1998] OLRB Rep. Jan./Feb. 104.
Ms. Roberts’ request for reconsideration highlights her sense of frustration with the result of the Board’s decision of February 27, 2001, a frustration anticipated in the decision at paragraph 20 where I stated:
I agree with counsel for the Ministry that it may be difficult for former non-union Metalcraft employees who did not file an application to appreciate why they, unlike their union co-workers, cannot take the benefit of my section 12 finding. However, I do not agree that such a result is an absurd one under the Act…
However, beyond conveying her sense of injustice and inequity, Ms. Roberts has not provided any reasons the kind of which the Board has traditionally required in considering whether to grant reconsideration. She does not claim to wish to adduce new evidence or make representations that could not have been adduced or made earlier. She has not pointed out an obvious error in the Board’s February 27, 2001 decision, or raised significant policy issues to which the Board failed to give adequate consideration.
In all the circumstances, this is not an appropriate case for reconsideration.
I decline to reconsider the Board’s decision of February 27, 2001 in this matter.
“Patrick Kelly”
for the Board