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INFORMATION BULLETIN |
#6 APPLICATIONS FOR RECONSIDERATION
Revised: March 13, 2008
I. INTRODUCTION
The Board has a general power to reconsider its decisions. It may do so either on its own motion or on the application of a party. This Bulletin outlines the circumstances in which the Board may exercise that reconsideration power. The procedures outlined apply to both timely reconsiderations of decisions issued or to reconsideration of certificates or other Board orders. See: Section 12(4); Bulletin 22. An application for reconsideration does not stop compliance with the Board's decision. Parties seeking stay compliance must apply to the Board. See: Spray Lake Sawmills v. IWA-Canada Local 1-207 [1989] Alta.L.R.B.R. 414.II. REASONS FOR RECONSIDERATION
The circumstances prompting reconsideration include cases where:
·
one of the original parties seeks to present
new evidence. This evidence must be significant and on point and not reasonably
available at the earlier hearing.
See: Sections 18(4), (5); IWA Canada Local 1-207
v. Zeidler Forest Industries [1989] Alta.L.R.B.R. 397.
·
accidental slips or mistakes need correction. A
formal hearing is not normally held in these cases.
·
the Board's interpretation of the Labour Relations Code or the
Public Service Employee Relations
Act conflicts with earlier decisions of the Board not presented
to or considered by it in the recent decision. See:
Sections 45 to
49; PSERA Sections
65 to 66.
·
another statute was not considered or the
Board's interpretation of another statute conflicts with court decisions. The statute must be important to the
outcome of the decision. This ground will not apply if the argument was heard
and dealt with in the original decision.
·
correction of substantial errors of fact or
errors of law is necessary. See:
Timeu Forest
Products v. IWA Local 1-207 [1997] Alta.L.R.BR. 430.
·
a fundamental change has occurred in the
employer's operation making the current certificates functionally
inoperable.
·
the name of a party to a certificate or
registration certificate has changed. This does not include cases requiring a
successor rights application.
A party's failure to cite related case authority during a hearing is not adequate grounds for reconsideration. Similarly, a failure to present available evidence is not a sufficient ground.
III. FORM OF APPLICATION
Parties
normally use a letter to apply for reconsideration. Applications must include
detailed reasons for the request.
See: Rules of
Procedure, Rule 6.
The
specifics needed in the application, where applicable,
are:
· a statement of the grounds relied upon in support of the application;
· an outline of any new evidence to be introduced and the reasons why it was not available at the earlier hearing;
· references to earlier Board decisions conflicting with its recent decision;
· copies of court decisions or statutes conflicting with the Board's decision;
· details of any certificates affected by the application;
· details of any fundamental change making the current certificates functionally inoperable;
· evidence of support from the affected employees or employers if the application seeks to amend a current certificate or registration certificate; See: CLRA v. Finch Labour Contractors et al. [1987] Alta. L.R.B.R. 401; Rules of Procedure, Rules 5.1, 6.
· remedy desired; and
· a statement in a form prescribed by the Board, confirming the application has been served in a manner approved by the Board, on any parties known to be affected by the proceeding or subsequently added by the Board.
IV. TIMING OF APPLICATION
Applications must be timely. The Board discourages the use of reconsideration applications as a substitute for untimely Court proceedings. See: Section 19; IBEW Local 424 v. TNL Industrial Contractors [1996] Alta.L.R.B.R. 194.
Unexplained or unreasonable delays by the parties may result in the Board refusing to consider the application. It is up to the applicant to prove that it has acted with reasonable speed.
The Board weighs the reasons for any delay against the need for Board decisions to be final. It may refuse the application where it determines that finality of the process is more important.V. DISPOSITION OF THE APPLICATION
The Director of Settlement reviews the application for completeness.When it is complete, the Director may:· encourage the parties to meet and attempt to resolve the matters or to discuss agreed statements of fact and documents;
· put the matter to a panel on the basis only of the application to reconsider and any reply. This will normally occur when the grounds for reconsideration appear weak, or where there is a parallel judicial review application. The panel may decide not to reconsider or to direct further hearings or submissions. See: Section 16; Bulletin 4.
· direct the parties to provide preliminary submissions on the questions of timeliness. This could be at an initial hearing, but more often would be by a request for written submissions on that point.
· advise the parties to provide further submissions in writing so that the Board can decide the case based on those submissions, but usually without a further oral hearing. In such cases the Director of Settlement tells the parties what to address in their submissions, and sets dates for replies and any counter replies. The Chair will assign a panel to review the submissions, once completed and make a decision. The Chair, with the Director of Settlement will decide whether written submissions should address only whether the Board should embark on a reconsideration, or whether they should address that point as well as the merits of the decision under review.
· schedule a hearing into the question of whether the Board should reconsider, leaving the merits of the question to be addressed at a later hearing if necessary. In this case the Chair will give directions to the Director of Settlement on who should sit on the reconsideration panel.
· schedule a hearing into the whole matter. In this case the Director of Settlement's letter to the parties should make it clear that they should attend the hearing prepared to deal with the merits of the case as well as any preliminary arguments about whether the Board should reconsider.
See: Rules of Procedure, Rule 22(1)(k); Bulletin 2; U.A. Local 488 v. Fish Int’l [1985] Alta.L.R.B.R. 85-073.
After considering the submissions or following a hearing, the Board declines to reconsider the matter or varies, confirms or overturns the previous decision.
VI. RECONSIDERATION WITHOUT APPLICATION
The Board usually initiates reconsiderations for three major reasons:
·
to correct accidental slips or mistakes.
Sometimes the Board notices these mistakes during the processing of a
file.
·
as a result of judicial review applications. As
a result of a successful judicial review, the Court may direct the Board to
reconsider or rehear a matter. In other cases, the Chair may direct that the
matter be reconsidered by the Board as a result of the Chair's review of each
application for judicial review. For example, the Chair may direct
reconsideration where natural justice has been denied. The Chair may consider
the seriousness of the dispute between the parties and determine that
reconsideration could deal with the dispute more quickly than judicial
review.
·
for major bargaining unit reviews. From time to
time the Board determines that it is necessary to conduct a major bargaining
unit review. Such a review looks at the bargaining units so as to make them
functional. For example, the Board initiated the review of the municipal
bargaining units in the City of
If the
Board initiates the reconsideration process, it decides whether or not to hold a
hearing. If there is a hearing, the parties can bring evidence and argue to
vary, revoke or affirm the previous decision. Alternatively, the Board may ask
for written submissions from the parties and decide the matter without a
hearing. See: Section
12(4).
VII. JUDICIAL REVIEW
Introduction
A party having lost before the Board may apply to the Court of Queen’s Bench for judicial review of the Board’s decision. The application is made pursuant to section 19 of the Code. This section allows applications seeking a court order in the nature of certiorari (a remedy requesting the Court examine the record before the Board for errors) or mandamus (a remedy seeking the Court direct the Board take certain action).
As with reconsideration applications, a judicial review application does not stay a Board decision. Parties seeking to stay the Board’s decision must apply to either the Board or the Court for an order staying the effect of the Board decision.
Timing and Form of Application
Section 19(2) of the Code requires that applications for judicial review be filed and served on the Board no later than 30 days after the date of the decision, order, directive, declaration, ruling or proceeding, or reasons in respect of it, whichever is later. Applications are made by way of Originating Notice.
Reasons for Granting Judicial Review and Standard of Review
A party seeking judicial review must demonstrate to the Court that the Board erred in reaching its decision and that such error justifies action by the Court. Such errors are frequently referred to as jurisdictional errors. These errors generally fall into one of three categories with each attracting a different level of deference from the Court.
The first category of errors are those arising from the interpretation and application of the Code’s provisions including the Board’s interpretation of the evidence before the Board. These errors must generally rise to the level of being patently unreasonable. Patently unreasonable errors are errors that result in the decision being “clearly irrational” or “that almost border on the absurd”. The application of the patently unreasonable standard is the Court granting the Board the highest level of deference available.
The second category of errors are errors that breach the rules of natural justice. These are errors that affect the fairness of the proceedings conducted by the Board. They generally fall into two categories. The first is the ability of a party to reasonably understand the case that must be met and the ability to respond to that case. The second is the right to have a decision made by unbiased and independent decision makers. These errors can include such things as failing to give proper notice, failure to provide adequate disclosure of the case to be met, failure to provide adequate opportunity to meet the case to be met, and failure to ensure the panel hearing the matter consists of unbiased and independent members.
The final category of jurisdictional errors are errors that are constitutional in nature. They are typically errors relating to the interpretation and application of the provision of Charter as well as division of power issues. Generally the Board’s decisions in this area are reviewed by the Court using a correctness standard. That is, the Court may overturn the Board’s decision where it disagrees with the Board’s conclusions. Put another way, the Board will generally be entitled to no deference on constitutional issues.
VIII. STAY APPLICATIONS
A party may file a reconsideration application or an application for judicial review. Such applications do not automatically stay a Board decision. A party wanting a stay must file a separate application with the Board.
The form of the application is similar to that for reconsideration. In addition, the applicant must address the three principles summarized in United Brotherhood of Carpenters and Joiners of America, Local Union No. 1325 v. Permasteel Construction [2000] Alta.L.R.B.R. 291:
- Does the applicant's challenge to the Board's order raise a sufficiently strong case that the Board should suspend its process? This enquiry is variously referred to as a search for a "prima facie case," a "strong prima facie case", or a "serious question to be tried". In the context of a Board order, it must be remembered that the question is "rarely preliminary and tentative"; the Board has heard evidence and argument and rendered a decision, and will not be overturned unless it has committed a jurisdictional error or made a patently unreasonable decision. This consideration will generally make a Board stay of its own order more difficult to obtain than an interlocutory injunction, where the issue has not yet been adjudicated in any way.
- Does operation of the Board's process threaten irreparable harm to the party seeking the stay? This means harm not easily compensated in damages or not susceptible of adjustment through collective bargaining solutions.
- Does the "balance of convenience" favour stay of the Board's process? This involves an assessment of the comparative risks or prejudice faced by the applicant and the respondent if they fail in the interim stay application but succeed in the substantive challenge to the Board's decision. In assessing the balance of convenience, the NADP (No. 2) decision particularly emphasizes that time is of the essence in labour relations matters; that parties in labour relations matters often must co-exist after their dispute is resolved; and that there is a public interest in the timely resolution of workplace disputes. See: Miscellaneous Teamsters 987 v. Alberta Brotherhood of Dairy Employees and Driver Salesmen and Northern Alberta Dairy Pool (#2), [1991] Alta.L.R.B.R. 159.
The applicant must satisfy the Board on all three grounds in order to be successful.
The Board handles a stay application in a similar fashion as a reconsideration application. It may put the matter to a panel only on the basis of the application and any reply. Or it may schedule a hearing into the matter. After considering the submissions or following a hearing, the Board may decline to stay its decision or it may stay the decision or part of it.
See also:
Information Bulletins 1 and 4
Rules of Procedure
For further information or answers to any questions regarding this or any other
Information Bulletin please contact:
Director of Settlement
Labour Relations Board
501, 10808 99 Avenue
Edmonton, Alberta T5K 0G5
Telephone: 780) 422-5926
Manager of Settlement
Labour Relations Board
308, 1212 31 Avenue NE
Calgary, Alberta T2E 7S8
Telephone: (403) 297-4334
Email: alrbinfo@gov.ab.ca
Website: alrb.gov.ab.ca