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Labour (Ont) - Reconsiderations. Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board [prematurity]
In Electrical Trade Bargaining Agency of the Electrical Contractors Association of Ontario v. Toronto District School Board (Div Court, 2024) the Ontario Divisional Court dismissed a labour JR, this from an unfair labour practice complaint decision whereby the Board initially "exercised its discretion under s. 96 of the Labour Relations Act, 1995, S.O. 1995, c.1 as amended (the “Act”) to dismiss the Complaint without convening a hearing on the merits".
The court considered whether an OLRB JR is premature in the absence of reconsideration request:[63] Section 114(1) of the Act [SS: 'Jurisdiction'] confers on the Board the discretionary power to reconsider its decisions “at any time, if it considers it advisable to do so”. To encourage finality, the Board’s threshold for reconsideration is a high one: Anonymous Applicant v. CAW-Canada, Local 40, 2012 CanLII 30623 (Ont. L.R.B.).
[64] While this Court clearly has the discretion to dismiss an application for judicial review because the applicant has not sought reconsideration, the Supreme Court of Canada has held that reconsideration is not an absolute prerequisite to judicial review Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 57.
[65] In United Brotherhood of Carpenters (Local 249) v. Matrix North Construction Ltd., 2019 ONSC 5647, [2019] O.L.R.B. Rep. 691, the Divisional Court refused to dismiss an application for judicial review as premature because the applicant had not sought reconsideration. In doing so the Court noted that reconsideration is a discretionary rather than a mandatory part of the Board’s processes and that historically the Board has only granted reconsideration requests in very limited circumstances. The Divisional Court found at para. 41:There may be cases in which it is appropriate to require reconsideration before an application for judicial review is brought; for example, where there are conflicting decisions by the Board on a matter of policy, and the Court determines that the Board should be given an opportunity to clarify the issue. Similarly, reconsideration may be an adequate alternative remedy where the Board made an error in a step in the administrative decision-making process. However, given the limited scope for review, there is no basis for finding that parties before the Board should generally request a review by the Board before seeking judicial review. [citations omitted.] [66] As put by the ETBA in its reply factum, its “application alleges that the Board failed to give proper effect to the province-wide bargaining regime under the Act. This is not a ‘policy issue’ as defined in the case law.” I agree. Further, there are no conflicting decisions involving an issue that the Board ought to have a chance to reconcile. Finally, ETBA is not alleging that the Board made a procedural error in its process.
[67] In The Society of United Professionals v. New Horizon System Solutions, 2020 ONSC 3153 at para. 22, the Divisional Court found that the Board is likely to reject a request for reconsideration that it regards “as an attempt to reargue the case.” In its reply factum, the ETBA acknowledges that it “is essentially making the same representations to this Court that it made before the Board but is contending that the Board’s conclusions about those representations were unreasonable.”
[68] I find that in this case reconsideration would not be an adequate alternative remedy and, therefore, the application should not be dismissed as premature. . Strasser & Lang v. Carpenters’ District Council of Ontario et al. [for numbered case cites see the link]
In Strasser & Lang v. Carpenters’ District Council of Ontario et al. (Div Court, 2023) the Divisional Court considers a JR employer's challenge to an OLRB reconsideration decision:[78] Section 114(1) of the LRA provides that the board may, if it considers it advisable to do so, reconsider, vary or revoke a decision.
[79] Rule 18 of the Board’s Rules of Procedure deals with requests for reconsideration. “Complete written representations” must accompany a request. Where a party is directed to file a response to the request, as the union was in this case, the party must include complete written representations in support of its position.
[80] I do not accept Strasser & Lang’s argument that it was unfair for the Vice-Chair not to have given Strasser & Lang an opportunity to comment on the issue of who had prepared the employees’ submission. In his decision, the Vice-Chair said it appeared that the employees’ submissions had been written by someone with legal training, an observation he was entitled to make. However, the Vice-Chair clearly stated that his decision did not depend on a finding that the employees’ submissions were written by someone other than the employees.
[81] I also do not accept Strasser & Lang’s submission that it should have been given an opportunity to make submissions about the dates on which the employees signed their membership cards. In both Strasser & Lang’s response to the certification application and its request for reconsideration, Strasser & Lang had assumed that the seven employees had signed their membership cards when they met with Mr. Drainville on March 11, 2022. The Vice-Chair had no obligation effectively to ask Strasser & Lang whether it would like to change its position.
[82] With respect to the employees’ argument that the Vice-Chair’s decision was unfair because it was made without a hearing, this Court has held that the decision of the Board not to hold an oral hearing is not a denial of natural justice nor procedural fairness where it has otherwise provided the parties an opportunity to set out their representations through written submissions: International Brotherhood of Electrical Workers, Local 1739, at para 61.
[83] Strasser & Lang and the seven employees had an opportunity to submit detailed written submissions in support of their requests for reconsideration. They did so. Strasser & Lang’s submissions were seven pages in length; the employees’ submissions were 27 pages in length. It is evident from his May 6, 2022 decision that the Vice-Chair considered these submissions; he specifically stated that he had done so and he referred to the arguments in the submissions throughout his decision.
[84] For these reasons, I find that the Board’s May 6, 2022 reconsideration decision was not procedurally unfair.
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[87] While the Board may, if it considers it advisable to do so, reconsider a decision (s. 114(1) of the LRA), it typically will reconsider a decision only in certain circumstances:a) Where the decision contains an obvious error;
b) Where the request raises important policy issues which have not been adequately addressed;
c) Where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously, and which could, if accepted, make a difference to the decision; and
d) Where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make.[15] [88] Because of the need for finality in labour relations matters, the Board exercises its reconsideration power sparingly. A reconsideration request is not an appeal and is not to be used by a party as an opportunity to re-argue its case or attack a Board’s reasoning or findings of fact. The Board may decide to reconsider its decision in exceptional circumstances such as the following: where the rationale for the decision was inconsistent with Board policy or existing case law; where the party requesting reconsideration has been denied natural justice because it did not receive notice of a hearing or was not provided with the opportunity to lead evidence or make submissions on the issue on which the outcome of the case turned; or where new evidence has come to light that could not reasonably have been discovered earlier, and which would almost certainly be dispositive of the case[16].
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