Reasons for decision
Ted Kies,
applicant,
and
Lakehead Freightways Employee Association (Northwestern Ontario and Manitoba),
respondent,
and
Lakehead Freightways Inc.,
employer.
CITED AS: Ted Kies
Board File: 26826-C
Neutral Citation: 2008 CIRB 413
July 7, 2008
This is an application pursuant to section 18 of the Canada Labour Code, Part I (the Code).
Application for reconsideration–Practice and procedure–Original panel rejected the complainant’s duty of fair representation complaint–Board decisions are expected to be final–The Board’s extensive privative clause at section 22 of the Code makes this explicit–Sections 44 and 45 of the Regulations set out the Board’s policy with respect to the exercise of its reconsideration powers–Section 45 of the Regulations requires that applicants requesting reconsideration expressly identify the grounds for reconsideration–A generic criticism of the decision under review does not meet this requirement–It is not up to the Board to determine if applications which fail to comply with the Regulations’ requirements, might, if properly pleaded, raise one or more proper grounds for reconsideration–Section 44 of the Regulations is not drafted exhaustively and provides the Board with the flexibility to hear the rare case that does not fit within the enumerated grounds for reconsideration–The enumerated grounds for reconsideration demonstrate that the reconsideration process is neither an appeal nor an opportunity for a party to reargue its case a second time before a differently constituted panel–The Board does not, as a matter of policy, entertain multiple reconsideration applications–The complainant has not persuaded the Board there is any ground for reconsideration of the original panel’s decision in this case–The Board dismisses the complainant’s application.
Application for reconsideration–New facts–Practice and procedure–The type of facts described in section 44(a) are not facts that a party forgot to plead in the original complaint or application–The new facts or evidence must have been unavailable at the time of the original hearing–If an applicant alleges that new facts exist within the meaning of section 44(a) of the Regulations, then the application should, at a minimum, identify: i) what those new facts are; ii) why the applicant could not have put them before the original panel; and iii) why those facts would have changed the original panel’s decision–The complainant wrote to the Board to express his dissatisfaction with the original decision–The complainant took issue with the union’s investigation of his complaint and alleged that a union representative had “slandered” his grievance–In his original complaint, the complainant refers to the same fact–This is not a new fact within the meaning of section 44(a) of the Regulations, but rather a request for the reconsideration panel to redetermine the case on the same facts–That is not a reconsideration panel’s role–The complainant wrote to the Board again–Some of the complainant’s recent submissions about his workplace, besides being irrelevant to a complaint against his bargaining agent, also appear not to have been brought to the original panel’s attention–These are not the type of “new facts” that could give rise to reconsideration under the Code–The Board dismisses the complainant’s application.
Application for reconsideration–Error of law or policy–Practice and procedure–A reconsideration panel may intervene if an error of law or policy occurred in the original decision and that error casts serious doubt on the interpretation of the Code–Section 45 of the Regulations requires an applicant to set out, with supporting argument, not only what specific error of law or policy allegedly occurred, but also why the error casts serious doubt on the original panel’s interpretation of the Code–This two-pronged test demonstrates that an error of law or policy, if one occurred, does not necessarily mean that the original panel’s decision will be overturned on reconsideration–An allegation of an error of law is limited to those legal arguments put before the original panel–If an applicant alleges an error of law or policy, the application should, at a minimum, identify: i) the law or policy in issue; ii) the precise error the original panel made in applying that law or policy; and iii) how that alleged error casts serious doubt on the original panel’s interpretation of the Code–Nothing in the complainant’s two letters requesting reconsideration raised, either explicitly or implicitly, an error of law or policy, as that term is used in section 44 of the Regulations–The Board dismisses the complainant’s application.
Application for reconsideration–Natural justice– Practice and procedure–A reconsideration panel can consider whether the original panel failed to respect a principle of natural justice–Natural justice is a fluid concept that differs depending on the tribunal in question–An applicant who alleges the original panel failed to respect a principle of natural justice should set out, at a minimum, i) the particular principle of natural justice or procedural fairness; and ii) a description of how the original panel failed to respect that principle–A mere disagreement with the original panel’s decision and a generic statement that the decision violated some undefined principle of “natural justice” does not justify reconsideration–The complainant requested that the reconsideration panel hold an oral hearing so that he could prove his case–The complainant had asked the original panel to hold an oral hearing but they exercised their discretion under section 16.1 of the Code not to do so–The original panel was not required to hold an oral hearing and the exercise of its discretion in this regard did not violate a principle of natural justice–Nothing in the complainant’s two letters requesting reconsideration raised, either explicitly or implicitly, a matter of natural justice, as that term is used in section 44 of the Regulations–The Board dismisses the complainant’s application.
The Board was composed of Ms. Elizabeth E. MacPherson, Chairperson, and Mr. Graham J. Clarke and Ms. Judith MacPherson, Vice-Chairpersons.
Section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this application without an oral hearing.
Parties’ Representatives of Record
Mr. Ted Kies, on his own behalf;
Ms. Janice Drew, for Lakehead Freightways Employee Association (Northwestern Ontario and Manitoba);
Mr. John Van Every, for Lakehead Freightways Inc.
These reasons for decision were written by Mr. Graham J. Clarke.
I–Nature of the Application
[1] On April 4, 2008, Mr. Ted Kies, pursuant to section 18 of the Code, filed an application for reconsideration of the Board’s decision in Ted Kies, 2008 CIRB LD 1785.
[2] In that decision, the original panel rejected Mr. Kies’ duty of fair representation complaint under section 37 of the Code against his bargaining agent, Lakehead Freightways Employee Association (Northwestern Ontario and Manitoba) (the Association).
II–The Board’s Reconsideration Power
[3] Section 18 of the Code provides the Board with the authority to reconsider its past decisions:
18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.
[4] The Code also provides that Board decisions are expected to be final. The Board’s extensive privative clause at section 22 of the Code makes this explicit:
22.(1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
...
No review by certiorari, etc.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall
(a) be questioned, reviewed, prohibited or restrained, or
(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.
(emphasis added)
[5] Section 22 fulfills an important labour relations purpose by ensuring that Board decisions are final. Similarly, reconsiderations under section 18 are the exception rather than the rule, as noted in 591992BC Ltd., 2001 CIRB 140:
[20] The finality of its decisions is of primary concern to the Board. Thus, the rescinding of an original panel’s decision remains the exception rather than the rule. The applicant has the burden of proving that there are serious reasons, or even exceptional circumstances, that would justify the reconsideration of a decision. ...
[6] Sections 44 and 45 of the Canada Industrial Relations Board Regulations, 2001 (the Regulations) set out the Board’s policy with respect to the exercise of its reconsideration power:
44. The circumstances under which an application shall be made to the Board exercising its power of reconsideration under section 18 of the Code include the following:
(a) the existence of facts that were not brought to the attention of the Board, that, had they been known before the Board rendered the decision or order under reconsideration, would likely have caused the Board to arrive at a different conclusion;
(b) any error of law or policy that casts serious doubt on the interpretation of the Code by the Board;
(c) a failure of the Board to respect a principle of natural justice; and
(d) a decision made by a Registrar under section 3.
...
45.(1) In addition to the information required for an application made under section 10, an application for a reconsideration must set out any arguments supporting the application that may address one or more of the circumstances referred to in section 44.
(2) The application must be filed within 21 days after the date the written reasons of the decision or order being reconsidered are issued.
(3) The application and the relevant documents must be served on all persons who were parties to the decision or order being reconsidered.
[7] Section 45(2) of the Regulations codifies the Board’s prior policy that reconsideration applications must be filed within 21 days after the date the Board issued its written reasons for the decision or order. This reflects again the need for the Board’s decisions to be final (see Wholesale Delivery Service (1972) Ltd. (1978), 32 di 239; and [1979] 1 Can LRBR 90 (CLRB no. 154)).
[8] Section 46 of the Regulations provides the Board with the authority to extend time limits set out in the Regulations, including the 21-day time limit for filing a reconsideration application:
46. The Board may vary or exempt a person from complying with any rule of procedure under these Regulations—including any time limits imposed under them or any requirement relating to the expedited process—where the variation or exemption is necessary to ensure the proper administration of the Code.
[9] In keeping with the exceptional nature of reconsideration, and the need for final and binding decisions, the Board will exercise its power to extend time limits with restraint (see Alex Robertson and J.M. Clegg, 2004 CIRB 260).
[10] Section 45 of the Regulations requires that applicants requesting reconsideration expressly identify the grounds for reconsideration. A generic criticism of the decision under review does not meet this requirement. It is not up to the Board to determine if applications which fail to comply with the Regulations’ requirements, might, if properly pleaded, raise one or more proper grounds for reconsideration.
[11] It is also not enough for an applicant to plead as a conclusion that the decision under review contains an “error of law” or violated “natural justice,” without providing the particulars necessary to support that conclusion.
A–Regulations Section 44(a): Facts not Before the Original Panel
[12] The Board has consistently held that the type of facts described in section 44(a) are not facts that a party forgot to plead in the original complaint or application. Rather, the facts must not have been available to the party at the time of the original panel’s hearing and deliberations.
[13] In Canada Post Corporation (1988), 75 di 80 (CLRB no. 710), the Board confirmed the need for a party to plead its entire case before the original panel:
The Board encourages parties to put their whole case before the Board in initial applications by applying strict rules for reconsideration applications. Parties seeking reconsideration of Board decisions are required to show cause why additional information sought to be added was not placed before the Board in the initial proceedings. Cases where parties are found to be merely seeking a different decision based on the same factual considerations are usually dismissed by the Board without proceeding to a public hearing. ...
(page 87)
[14] In Robert Adams, 2001 CIRB 121, the Board reiterated that the new facts or evidence must have been unavailable at the time of the original hearing:
[55] ... new facts or evidence advanced on a reconsideration application must have been unavailable at the time of the original hearing and be likely to have caused the Board to reach a different conclusion... A party cannot use this ground of reconsideration to remedy its own negligence.
[15] If an applicant alleges that new facts exist within the meaning of section 44(a) of the Regulations, then the application should, at a minimum, identify:
(i) What those new facts are;
(ii) Why the applicant could not have put them before the original panel; and
(iii) Why those facts would have changed the original panel’s decision.
B–Regulations Section 44(b): An Error of Law or Policy
[16] A reconsideration panel may intervene if an error of law or policy occurred in the original decision and that error casts serious doubt on the interpretation of the Code.
[17] Section 45 of the Regulations requires an applicant to set out, with supporting argument, not only what specific error of law or policy allegedly occurred, but also why the error casts serious doubt on the original panel’s interpretation of the Code. This two-pronged test demonstrates that an error of law or policy, if one occurred, does not necessarily mean that the original panel’s decision will be overturned on reconsideration.
[18] An allegation of an error of law is limited to those legal arguments put before the original panel. Just as a party cannot usually raise facts it failed to plead originally, a party cannot, on reconsideration, raise new legal arguments it could have put to the original panel (see Bell Canada (1979), 30 di 112; and [1979] 2 Can LRBR 435 (CLRB no. 192)). The Board may be more flexible on this issue when faced with questions of its constitutional jurisdiction over the parties.
[19] Global Television Network Inc., 2006 CIRB 351 illustrates where a reconsideration panel will intervene for an error of law. In this case, a reconsideration panel intervened due to an error of law arising from the original panel’s failure to give the parties a meaningful opportunity, as required by section 18.1(2) of the Code, to come to an agreement on the appropriate bargaining unit.
[20] In PCL Constructors Northern Inc., 2005 CIRB 306, a reconsideration panel found there had been an error of policy arising from the original panel’s comments about the abandonment of bargaining rights under the Code.
[21] In short, if an applicant alleges an error of law or policy, the application should, at a minimum, identify:
(i) The law or policy in issue;
(ii) The precise error the original panel made in applying that law or policy; and
(iii) How that alleged error casts serious doubt on the original panel’s interpretation of the Code.
C–Regulations Section 44(c): Natural Justice
[22] A reconsideration panel can also consider whether the original panel failed to respect a principle of natural justice.
[23] In Johanne Lacelle, 2002 CIRB 166, a reconsideration panel examined the term “natural justice”:
[6] The common-law principle of natural justice consists of two notions: nemo judex in causa, which is the right to be judged by an impartial and unbiased decision-maker, and audi alteram partem, which is the right to be given adequate notice of the proceedings and the opportunity to be heard. ...
[24] Natural justice is a fluid concept that differs depending on the tribunal in question. For instance, section 16.1 of the Code does not require the Board to hold an oral hearing in every case. When the Board chooses not to hold an oral hearing, the right to be heard (audi alteram partem) is met through a thorough consideration of the parties’ written submissions, responses and replies.
[25] By way of illustration, failure to give notice of a hearing to certain non-parties may constitute a violation of natural justice (see Raeburn et al. v. Canada Labour Relations Board et al. (1995), 184 N.R. 253 (F.C.A.)). Similarly, bias may exist where a panel member has a membership link with one of the parties in the case (see IPX Couriers, a division of Dynamex Canada Inc., 2001 CIRB 130).
[26] An applicant who alleges the original panel failed to respect a principle of natural justice should set out, at a minimum:
(i) the particular principle of natural justice or procedural fairness; and
(ii) a description of how the original panel failed to respect that principle.
[27] A mere disagreement with the original panel’s decision and a generic statement that the decision violated some undefined principle of “natural justice” does not justify reconsideration.
D–Regulations Section 44(d): Decisions By The Registrar
[28] The current Regulations at section 3 provide the Registrar with decision-making authority for specific, uncontested matters. A reconsideration panel can review the exercise of these powers. No cases of this nature have yet arisen.
[29] Section 44 of the Regulations is not drafted exhaustively and provides the Board with the flexibility to hear the rare case that does not fit within the enumerated grounds for reconsideration described above (see Hurdman Bros. Ltd. (1982), 51 di 104; and 83 CLLC 16,003 (CLRB no. 394)). The enumerated grounds for reconsideration demonstrate that the reconsideration process is neither an appeal nor an opportunity for a party to reargue its case a second time before a differently constituted panel.
[30] The Board does not, as a matter of policy, entertain multiple reconsideration applications (see Alex Robertson., 2006 CIRB 343).
III–Analysis and Decision
[31] The decision under review described Mr. Kies’ original complaint against the Association. Briefly, his employer, Lakehead Freightways Inc. (Lakehead), had suspended Mr. Kies for three days for an alleged lack of effort on his part in achieving incentive goals.
[32] Association representatives met with Lakehead and considered its proposed resolution of Mr. Kies’ grievance. The two Association representatives concluded that Lakehead’s offer was a reasonable solution and, despite Mr. Kies’ disagreement, accepted the employer’s proposal.
[33] The original panel found that the settlement may not have been what Mr. Kies wanted, but neither was it unreasonable. The settlement ultimately led to Mr. Kies receiving payment for the three days he had been suspended. The original panel found that the union had not acted in a manner that could be described as arbitrary, discriminatory or in bad faith.
[34] Mr. Kies wrote to the Board on April 4, 2008, to express his dissatisfaction with the original decision. For example, he took issue with the Association’s investigation of his complaint and alleged that an Association representative had “slandered” his grievance.
[35] The Board notes that in Appendix E to his original complaint, in a handwritten letter dated June 22, 2005, Mr. Kies also refers to the same fact. This is, therefore, not a new fact within the meaning of section 44(a) of the Regulations, but rather a request for the reconsideration panel to redetermine the case on the same facts. As set out previously, that is not a reconsideration panel’s role.
[36] Similarly, Mr. Kies requested that the reconsideration panel hold an oral hearing so that he could prove his case.
[37] Mr. Kies had asked the original panel to hold an oral hearing but it exercised its discretion under section 16.1 of the Code not to do so. Mr. Kies does not plead anything suggesting the original panel was not entitled to exercise its explicit power under the Code to decide the case based on the parties’ written submissions. The original panel was not required to hold an oral hearing, and the exercise of its discretion in this regard did not violate a principle of natural justice.
[38] Mr. Kies wrote to the Board again on April 10, 2008. This second letter was framed more precisely as a request for reconsideration under the Code. It contained some of the same content as in his April 4, 2008 letter. It also raised other issues he had with his employer at the workplace. Both submissions were filed with the Board within the 21-day time limit for reconsideration applications.
[39] It is imperative that an applicant put his or her best case forward before the original panel. Some of Mr. Kies’ recent submissions about his workplace, besides being irrelevant to a complaint against his bargaining agent under section 37 of the Code, also appear not to have been brought to the original panel’s attention. These are not the type of “new facts” that could give rise to reconsideration under the Code.
[40] Nothing in Mr. Kies’ two letters requesting reconsideration raised, either explicitly or implicitly, an error of law or policy or a matter of natural justice, as those terms are used in section 44 of the Regulations.
[41] On the basis of the above, Mr. Kies has not persuaded the reconsideration panel there is any ground for reconsideration of the original panel’s decision in this case. As a result, the Board dismisses his application.