Reconsideration of Board Decisions

    Purpose

The purpose of this Information Bulletin is to provide general information and guidance about reconsideration of Board decisions.  It is not a legal document and is subject to the provisions of the Labour Relations Code, the Labour Relations Regulation and the Labour Relations Board Rules.

  Legislative References (Code, Regulation, Rules)

Section 141, LRB Rule 29

  Law

Any party affected by a decision of the Labour Relations Board can apply to have the Board grant leave for the party to apply for reconsideration of the decision.

There is no absolute right to reconsideration under the Code. A party seeking leave must satisfy the Board that it should exercise its discretion under Section 141 to grant leave for reconsideration. A reconsideration is not a full appeal of the merits of an original decision.

   Test

The Board will not grant leave unless the applicant demonstrates "a good arguable case" that it will succeed on one of the established grounds for reconsideration.  This standard requires more than a prima facie case.  There must be a "serious question raised as to the correctness of the original decision".

   Application

When a party requests leave to apply for reconsideration, the written application should fully set out submissions with respect to both the leave request and the merits of reconsideration.

Discretion of Board

  

Even where the test for leave has been met, the Board retains the discretion to deny leave, based on other relevant factors.  These may include the importance of the original decision to the parties and to the labour relations community, any prejudice which may be occasioned to the respondent, and the practical utility of the reconsideration (e.g. whether the matter is academic).

 Leave will rarely be granted where a party seeks to reconsider a procedural, evidentiary or other "interlocutory" determination by an original panel.

   Compliance or Stay

As a general rule, the Board will require as a pre-condition to granting leave, that the applicant comply with the original decision.  Where a party feels there are good reasons why it should not have to comply with the original decision, it must seek and obtain a stay of proceedings within the 15 day time limit (see Stay of Proceedings, Information Bulletin No. 25).

   Grounds

The established grounds for reconsideration are:

 ·         new evidence has become available which could not have been obtained earlier through reasonable diligence, and there is a strong possibility that the new evidence will have a determining effect on the original decision,

 ·         the original decision is inconsistent with the principles of the Labour Relations Code or any other statute dealing with labour relations, or

 ·         the panel which made the original decision acted contrary to principles of procedural fairness and natural justice. 

   Time Limits

An application for leave to reconsider must be made within 15 calendar days of the publication of the reasons for the decision that is the subject of the application.  For more information, see the section on "Extensions" in either Information Bulletin No. 25 "Procedural Matters", or Practice Guideline No. ADJ-1 "Processing of Applications - General".

  Cross-Appeals

If an application for leave to reconsider is made, another party affected by the decision may also apply for leave within the longer of:

·         the 15 day period referred to above, or

 ·         5 days of receiving the initial leave application.

 

Extensions of Time Limits 

The 15-day time limit runs from the publication date of reasons for the decision.  Any extension should be requested before expiry of the 15 days.  Short extensions of 3 working days will usually be given by the Registry without consultation with the other parties. A party requesting a longer extension should first seek agreement from the other parties before contacting the Board.  An applicant seeking an extension after expiry of the 15 days must, in addition to its submissions on the extension, include its full submissions on the leave request and the merits of the reconsideration application. An applicant granted an extension should confirm the extension in writing to the Board, with copies to the parties.  For more information, see the section on "Extensions" in either Information Bulletin No. 25 "Procedural Matters", or Practice Guideline No. ADJ-1 "Processing of Applications - General".

   Leave Request Assessed

Upon receipt, a leave application is reviewed for timeliness and sufficient particulars.  The file is then assigned to a panel to determine whether the test for leave has been satisfied. No submissions are requested from the other parties at this stage.  In some cases, leave will be denied based on the application.  If leave is not denied at this stage, submissions are requested from the other parties and a formal hearing may be scheduled.  Leave and reconsideration applications may be adjudicated without  an oral hearing.

  Denial of Leave

The Board will not grant leave for reconsideration where the applicant simply disagrees with the original panel's findings of fact, or where the applicant is advancing arguments which were made to the original panel and do not disclose a reviewable error. Nor will leave be granted based on arguments which could have been made to the original panel.

   Statutory Declaration

Where an application for leave or a reply to it depends on material facts which are not evident on the face of the Board's original decision, a statement of those facts verified by statutory declaration must accompany the application or reply (see Rule 29 (2)).

  Only One Leave

Only one request for leave to apply for reconsideration is allowed to each party for each decision.  There is no provision for reconsideration of a decision to either grant or deny leave to apply for reconsideration.

Remedy

 

On reconsideration under Section 141 the Board may vary or cancel the original decision, or it may remit the matter to the original panel.

  Leading Cases

Brinco Coal Mining Corporation, BCLRB No. B74/93, 20 CLRBR (2d) 44 (general law)

RG Properties Ltd., BCLRB No. B378/2003 (Leave for Reconsideration of BCLRB No. B252/2003) (denial of leave)

Robinson Little and Co. Ltd. , BCLRB No. 32/75, [1975] 2 CLRBR 81 (findings of fact by original Panel will generally not be reviewed)

Roberts Roofing and Sheet Metal Ltd. , BCLRB No. B313/94 (findings of fact will generally not be reviewed)

John Robertson, BCLRB No. B505/2000 (extension of time for filing)

  Decisions (Copies)

Board decisions since January 1, 2000 are available without charge on the Internet at  www.lrb.bc.ca.

 Board decisions can also be purchased from:

Canada Law Book Inc.
240 Edward St.
Aurora, Ontario    L4G 3S9

Telephone (toll free) 1-800-263-2037

 

  Advice

LRB Staff provide general information and assistance to the public, but they cannot act as your representative or advisor.  For answers to specific concerns related to your situation, you should consult a lawyer or an advisor experienced in labour relations.  For general clarification, call the Board's Information Officer at 660-1300.

 


    Practice Manual Effective: 04/01/95
    Revised: 08/2001

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