HomeMy WebLinkAbout3069-04-U - Douglas 07-02-27
ONT ARlO LABOUR RELATIONS BOARD
3069-04-IJ
Responding
Intervenor.
lain Douglas, Applicant v. Ontario Public Service Employees Union,
Party v. Ministry of Community Safety and Correctional Services,
BE}'ORE: Corinne F. Murray, Vice-Chair
DECISION OF THE BOARD; February 27,2007
1. This is a second request for reconsideration. Though based upon different grounds
than the first, it seeks the same thing, a hearing or consultation for the Board to receive "new and
recent information".
2. The first reconsideration request was rendered on May 17, 2006. The second
reconsideration does not attack the substance of the decision, which was the rejection of
reconsideration for the purposes of hearing "new information". The nature of the "new and
recent" information referenced in the second request is not set out and its impact is unknown.
Since another batch of information has already been considered in the first reconsideration
decision, the "new and recent information" must be assumed to be yet another batch.
3. The applicant submits that a number of rights, including natural justice and the
Canadian Charter of Rights and Freedoms, have been violated because the decision rejecting its
reconsideration request did not indicate why it took the time it did to detennine. The applicant
contends that this is a "procedural flaw" that entitles him to a hearing or consultation for the
purposes of providing to the Board "new and recent information".
4. The prior reconsideration decision explained the impact of "new information" upon
the exercise of the Board's discretion and bears repetition since the second request essentially
raises the same issue:
Where there is "new evidence" offered as a rationale for reconsideration, the
Board has expected proof that it was not previously available with the
exercise of due diligence and that new evidence would likely conclusively
determine the case differently, in order to tip the balance in favour of
reconsideration. The power to reconsider can also provide an opportunity to
a party to make representations or objections that it was not given a chance to
make before a decision was rendered (see K-Mart, [1981] OLRB Rep. Feb.
185), or to show that the original decision is wrong at law or raises significant
issues of policy or law that the Board failed to address adequately in the
decision (see John Entwistle Construction Limited, [1979] OLRB Rep. Nov.
1096).
5. The presentation of arguments based upon violations of "rights" does not take away
the obligation to fulfill these specifications which are aimed at restricting reconsideration to
circumstances were factual issues are truly "new", i.e, undiscoverable with due diligence, and
meaningful, i.e. conclusively determined in the applicant's favour.
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6. Another concise summary of the Board's considerations in a reconsideration request
from Marli Mechanical Ltd., [1994] OLRB Rep. Jlme 725 is set out below:
Pursuant to this provision, the Board has a broad discretion to reconsider any
of its decisions. However, the same provision, and legal and labour relations
considerations, also demand that the Board operate from the premise that a
Board decision should be final and conclusive for all purposes unless there is
a good reason to change it. Accordingly, the Board will generally not
reconsider a decision unless an obvious error has been made; or a request for
reconsideration raises important policy issues which have not been given
adequate attention or consideration; or the party requesting reconsideration
proposes to a[sic] adduce new evidence which it could not, with the exercise
of reasonable diligence, have obtained and presented previously, and which
new evidence would, if accepted, have a material impact on the decision in
question; or a party seeks to make representations which it has had no
previous opportunity to make.
7. This is essentially a reconsideration request that pertains to "new and recent"
information. The cases cited in support of his entitlement to reconsideration have absolutely no
similarity to the applicant's circumstances at this stage of this application. For example, the
procedural flaw in one instance was the failure of an Employment Standards Officer to include an
party in an investigation under the Employment Standards Act that affected that party's rights and
a de novo hearing was the only cure for this omission.
8. There has been no procedural flaw of this sort in this case and certainly no loss of any
rights that arose after the first decision that was rendered within months of the filing of this
application. The time taken to consider a reconsideration request that had no realistic chance of
success does not engage the rights that the applicant asserts have been violated.
9. For all these reasons, this request is dismissed.
"Cori1llle F. Murray"
for the Board