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Labour (Ont) - Reconsiderations. 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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