1705-00-U Brenda Currine Perrin, Applicant v. Ontario Public Service Staff Union ("OPSSU"), Responding Party v. Ontario Public Service Employees Union, Intervenor.
BEFORE: Timothy W. Sargeant, Vice-Chair.
DECISION OF THE BOARD; August 20, 2001
This is a request for reconsideration of a decision dated July 24, 2001.
In that decision, in part, the Board stated:
A hearing was held on July 19, 2001. At the hearing, no one appeared on behalf of the applicant. The hearing was scheduled to commence at 9:30 a.m. There was no indication in the file that the applicant's Notice of Hearing, sent to the address for service set out in the application, had been returned or that the applicant had requested an adjournment. The hearing did not commence until 10:00 a.m. and still at that time the applicant or a representative had not yet appeared.
The responding party attended the hearing. An oral decision was rendered dismissing the application.
Subsequent to the hearing on the same day but after a decision had been rendered by the Board, notification was received from counsel for the applicant to the effect: "Please be advised that counsel for the applicant is on vacation this week and inadvertently overlooked the scheduling of the Consultation Meeting today in this matter. Please accept his apology for the oversight. Counsel would like to request an adjournment to any of the following dates: August 2, 7, 9, September 4, 6, or 7, 2001".
The Board has a discretion under the Act as to whether a matter alleging a breach of section 74 of the Act proceeds to hearing. The Board exercised that discretion and dismissed the application prior to any request being received by the Board for an adjournment.
There was nobody at the hearing to speak to an adjournment request. The subsequent letter requesting an adjournment was received by the Board after a decision had been rendered. Such request was thus too late to consider.
It should be pointed out that in any event without the consent of counsel for the responding party it is extremely doubtful that an adjournment would have been granted based on the reasons forwarded by counsel for the applicant.
This decision confers the oral decision given on July19, 2001 dismissing this application. The application is dismissed
In its request for reconsideration, the applicant relies upon the following material facts and representations:
The date of July 19, 2001 was selected by the Board to conduct a Consultation between the parties in connection with the Application. This date although diarised in the office diary was not similarly diarised in the personal diary of the Applicant's solicitor and the Applicant herself was not notified. The Applicant's solicitor was scheduled for his annual summer vacation at this time. He was not aware of this consultation notice although it was inserted in the office diary. This administrative oversight was inadvertent. The Applicant herself was never aware and her claim should not be dismissed solely as a result of the inadvertence of her solicitor's office administration.
- The applicant further submits:
The Application is based on issues that are not only of concern to the Applicant, but rather have implications as critical as the definition of a temporary employee in a certain context, the canon of interpreting a collective agreement, and the substantive right to grieve a discharge of employment. Lastly it would be fundamentally unfair to dismiss the Applicant's serious Application on the grounds that her solicitor inadvertently failed to attend a Consultation Meeting. While the Board might have the legal right to make this decision it would be less than procedurally or substantially fair to dismiss an Application of this nature in these circumstances.
In regards to the issue that the applicant was not aware of the hearing, the Board would point out that the application filed under section 96 listed only counsel as the appropriate person for service. Notice of the hearing was sent to the parties dated June 4, 2001 for a hearing to be held on July 19, 2001. Counsel for the applicant obviously received such notice in a timely fashion and one would presume notified his client. In any event, notice was sent to the appropriate person for service as set out in the Application.
Based on the submissions, there is no question that the notice of hearing had been received and inserted in the office diary of counsel for the applicant. Even accepting that the administrative oversight was inadvertent, this is not grounds for reconsideration of the decision dated July 24, 2001.
The responding party had attended the hearing scheduled for July 19, 2001 with counsel. A decision had been rendered orally at that hearing.
The principles that the Board considers for reconsideration are well known. A succinct statement of those principles is found in Cineplex Odeon Corporation, [1996] OLRB Rep. Nov./Dec. 922 where the Board wrote at page 924:
Generally, the Board will not reconsider a decision unless a party proposes to adduce new 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. (International Nickel Co. of Canada Ltd., [1963] OLRB Rep. 234, 64 CLLC ¶15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC ¶16,260). Both legs of this principle depend upon the applicant having been diligent and therefore having had no opportunity to draw the Board's attention to the objection of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly they would not appear to come with the ambit of the principle.
The Board will also on occasion reconsider a decision if the application for reconsideration raises significant and important issues of Board policy.
In the Board's view, this application does not fall within the principles set out in the Cineplex Odeon Corporation decision, nor does it raise significant and important issues of Board policy.
For all the above reasons, the request for reconsideration is denied.
"Timothy W. Sargeant"
for the Board