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:
 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.
 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.
 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.
 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.
 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.
 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.
 For these reasons, I find that the Board’s May 6, 2022 reconsideration decision was not procedurally unfair.
 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; 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.
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.