0622-96 Group of Employees, Applicant v. Crown in the Right of Ontario (Management Board Secretariat) and Ontario Public Service Employees Union, Respondents

Before: Phyllis Gordon, Former Chair, and Members Bruce Budd and Margaret Kvetan

Cite As: Management Board Secretariat (No.7), September 8, 1999 (PEHT)

DECISION OF THE TRIBUNAL, SEPTEMBER 8, 1999

1The Group of Employees requested reconsideration of the decision by the majority of the panel dismissing their application (Management Board Secretariat (No.6), (1998-99), 9 P.E.R. 45). The respondent employer, Management Board Secretariat (“MBS”) opposes reconsideration and filed written submissions. The respondent bargaining agent, Ontario Public Service Employees Union (“OPSEU”), has advised that it opposes the reconsideration for the reasons set out by the employer.

Tests for Reconsideration

2Reconsideration is a discretionary remedy. The Tribunal will only grant reconsideration of an otherwise final and binding decision in compelling and extraordinary circumstances. In considering whether to exercise its discretion the following factors are relevant:

• were there legal submissions, or evidence, which could not have been presented by the party seeking reconsideration at the time of the hearing and which, if accepted, would be practically conclusive in changing the outcome of the case?
• since the decision, has there been a change of circumstances such that the decision should not stand?
• is the decision wrong in law?

Hamilton Civic Hospitals (No.3) (1996), 7 P.E.R. 26 at p.28; See also Women’s College Hospital (No. 2) (1990), 1 P.E.R. 178; Riverdale Hospital (No.2) (1991), 2 P.E.R.8; Dare Foods Ltd. (No.2) (1993), 4 P.E.R. 1; Management Board Secretariat (No.2) (1994), 5 P.E.R. 10.

Applicant’s Position

3In its submissions the Applicant does not expressly address the tests set out above. It appears, however, that the focus of the Applicant’s concern is the majority’s comment contained in footnote 13 which discusses the use of an orthogonal solution in the factor extraction process. Counsel for the Applicant expresses the concern as follows:

…. the Tribunal’s speculation about a matter which they have managed to clearly get wrong based on simple evidence before them in Dr. Kervin’s second report taints the substance of the Majority’s decision on a vital matter in dispute between the Parties. It gives to the decision of the majority an impression of unfairness, an appearance that the Majority has made some decision about the value to be attributed to Dr. Ames’ expert evidence, and, in particular, to degrade Dr. Ames’ evidence, without the opportunity of counsel for the Applicants to make any submissions with respect to this issue. The Applicants are entitled to place their confidence in the fairness of a decision by this Tribunal as a necessary aspect of procedure (sic) fairness, particularly in a matter commenced in 1991. In my submission, the Majority decision cannot stand with respect to the matter of the true impact of negative coefficients in circumstances where the only evidence at the Hearing of any material significance was all expert evidence and the weight that the Majority was to give that expert evidence was crucial in its decision-making, and the weight given to Dr. Ames’ evidence is tainted by this speculation.

4We believe counsel for the Applicant is saying that:

• the majority did not correctly understand an important aspect of the expert evidence before it and consequently did not weigh Dr. Ames’ evidence appropriately;
• this misunderstanding of the evidence, absent an opportunity for the Applicant to make submissions on the issue, renders the decision unfair; and
• this unfairness constitutes an error of law/failure of natural justice as contemplated by the third branch of the Tribunal’s test.

Reasons

5The comment of the majority upon which this request is based is found in a footnote, rather than in the body of the reasons for the decision. This indicates that its content is separate and apart from the reasons for the decision and should not be viewed as the basis of the decision. In addition, the comment is clearly obiter, and as such, a reconsideration based on it would not result in the acceptance of submissions or evidence that would be practically conclusive in changing the outcome of the case.

6In any event, decisions of quasi-judicial administrative tribunals that are protected with a privative clause are not reviewable for errors of fact. To the extent that the Applicant’s argument is that the comments in footnote 13 disclose an error in weighing the evidence given by Dr. Ames and Dr. Kervin, that “error” is factual and does not disclose an error in law. It would indeed be strange if the Tribunal was prepared to subject itself to a more stringent test on reconsideration than would be applied to its decision by a supervisory court on judicial review. Thus, the argument that the majority “got it wrong” on the evidence, as gleaned from an obiter aside contained in a footnote, is not, in itself, sufficient basis to grant reconsideration.

7More troubling is the assertion that the Tribunal failed to alert the parties to the question raised by the majority in footnote 13 which, the Applicant submits, is integral to the majority’s analysis of the evidence. If we understand the Applicant’s submissions correctly, it is this failure which constitutes a breach of procedural fairness and, therefore, an error of law for which reconsideration should be granted.

8This situation stands in contrast to the problem in Management Board Secretariat (No.2), supra where the panel was alleged to have gone beyond the jurisdictional question placed before it, and to have determined the merits of the application in the absence of notice to and submissions from the parties. Here, the questions raised by any aspect of the evidence were precisely the issues before the panel to determine and there has been no change in circumstances such that the decision should not stand. All parties had the opportunity and took full advantage of the opportunity to present evidence, cross-examine and to make oral and written submissions. Further, the question raised in footnote 13 was put to the parties on March 9, 1998 during final argument. The parties, including the Applicant, declined to deal with the question in any detail and did not make a request to respond more fully, either by way of evidence or submission. In these circumstances there is no procedural unfairness or failure of natural justice and, thus, no error of law.

9For these reasons the application for reconsideration of the majority decision is denied.

Phyllis Gordon Former Chair

Bruce Budd Member

Margaret Kvetan Member