A party affected by a decision of the Labour Relations Board can apply in writing for leave for reconsideration of the decision. The Board will only grant leave for reconsideration in limited circumstances. An application for leave for reconsideration must meet the Board’s test for granting leave.
What is the test for getting leave for reconsideration?
An application for leave for reconsideration must show a good arguable case of sufficient merit that it may succeed on one of the grounds for reconsideration. This means the Board must be satisfied the application might succeed on one of the following grounds:
- The original decision is inconsistent with the principles expressed or implied in the Labour Relations Code (the Code), or in another statute dealing with labour relations.
- The original panel denied the party a fair hearing.
- New evidence has become available that was not available earlier through the exercise of reasonable diligence. There must a strong probability that the new evidence will have a material and determinative effect on the decision.
The Board will rarely grant leave for reconsideration of procedural, evidentiary, or other interim determinations before a final decision has been issued by the original panel.
If leave is granted, what does the Board consider when deciding whether to grant reconsideration?
To be successful on reconsideration, it's not enough to present the same arguments that were made to the original panel. Instead, an application must show how the original panel made an error that relates to one or more of the grounds for reconsideration or show that the new evidence makes it a strong possibility that it will materially affect the outcome in the original decision.
A party can only apply for leave for reconsideration of a decision of the Board once in respect of that decision. As well, a party cannot apply for leave for reconsideration of a reconsideration decision.
How can a party apply for leave and reconsideration?
An application for leave and the application for reconsideration must be filed together. That is, you must provide your arguments for both why leave should be granted and why the original decision should be reconsidered in the same application.
You should include all the information and arguments and attach all the documents you would like the Board to consider. If the application relies on facts that are not set out in the Board's original decision, you must include a statutory declaration confirming those facts with the application.
To apply for leave and reconsideration, you must:
What are the application deadlines?
An application for leave and reconsideration must be filed within 15 calendar days of the original decision.
If you cannot file your application within this time limit, you must ask the Board’s Registrar for an extension of time. That request must be made before the end of the 15-day time limit. If you need an extension of more than three business days, you must first ask the other parties for their agreement before asking the Registrar for the extension.
If the Registrar grants your extension, you must confirm the extension in writing to the Registrar, copying the other parties.
What happens when the Board receives an application for leave and reconsideration?
Once the Board receives an application for leave and reconsideration, it will review it to make sure it is complete and has been filed within the application deadlines. The Board will then assign your application to a Board panel for adjudication.
The panel will decide whether written submissions from the other affected parties are required to decide the application.
If submissions are requested, the Board will give you a chance to make a final written reply to the other parties’ submissions.
Do the parties have to comply with the original decision while waiting for the Board to adjudicate an application for leave and reconsideration?
Parties generally must comply with the terms of an original decision, unless the Board has granted a stay of proceedings.
An application for a stay of proceedings must be made in writing within 15 calendar days of the date of the original decision. To be granted a stay of proceedings, an applicant must show that there is a serious case for review and that it will be irremediably prejudiced if the stay is not granted.
What happens if an application for leave and reconsideration is successful?
In your application, you should set out what remedies you are seeking. If an application is successful, the Board may:
- Vary or cancel the decision that is the subject of reconsideration.
- Remit the matter to the original panel or a new panel.
- Decide the matter instead of sending it back to the original panel.
Leading decisions provide useful information on how the Labour Relations Board applies the Labour Relations Code (the Code) and information on what is or is not covered by the Code.