No. 02–Application for Reconsideration of a Board Decision
Information CircularPrintable version
The purpose of this Information Circular is to provide general information and guidance about applications for reconsideration made by a party. It does not replace the legislative provisions of the Canada Labour Code, the Canada Industrial Relations Board Regulations, 2012 or the discretion of a Board panel in dealing with a particular case.
What is an application for reconsideration?
Section 18 of the Canada Labour Code (Part I–Industrial Relations) (the Code) provides the Board with the authority to review its decisions and orders. It may do so either on its own motion or on the application of one of the parties involved in the original matter.
The Code also provides that Board decisions are expected to be final. Accordingly, the reconsideration process is not to be used as a method of appealing a Board decision simply because a party does not agree with the panel’s conclusion.
It is important to note that the filing of a reconsideration application does not suspend or interrupt the operation of the original decision unless the Board so directs.
What are the grounds for reconsideration?
The Board will generally only reconsider its decisions in exceptional circumstances. Therefore, a party requesting reconsideration of a decision must present compelling grounds in support of its application.
The Board may reconsider a decision or order on the following grounds:
- the Board did not have the necessary jurisdiction to issue the decision or order;
- the Board’s decision was erroneous in law or did not conform with the policies of the Board regarding the interpretation of the Code*;
- there are significant new facts that could not have been brought to the attention of the Board at the time of the original proceeding*;
- the Board failed to respect a principle of natural justice;
- any other substantial ground.
* If a party forgot or failed to plead certain facts or raise legal arguments it could have put to the Board in the original complaint or application, the Board will normally not consider these to be sufficient grounds for reconsideration.
How to File an Application for Reconsideration
An application for reconsideration of a Board decision must be made in writing and include the name and the date of the decision that is the subject of the application. The contents of the application for reconsideration must comply with section 45 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations) and must include a statement of the grounds for reconsideration relied upon in support of the application. It may be helpful to consult the Board’s decision in Kies, 2008 CIRB 413 to review the Board’s requirements and expectations when it considers the various grounds for reconsideration. Although this decision was issued prior to the repeal of section 44 of the Regulations, the principles established in the decision are still relevant.
The application may be filed at any of the Board’s regional offices. It may be delivered in person or sent by courier, mail or fax. It is considered to be filed at the time it is received by the Board. If it is sent by registered mail, the date it was registered and mailed is the date of the application.
The person making the application for reconsideration must also serve a copy on all other persons who were parties to the decision being reconsidered.
The information provided in the application must be sufficient to allow the Board to determine whether it raises sufficient grounds for reconsideration of the decision or order. The application should therefore include the following details, where applicable:
- If the party is alleging that the Board did not have the necessary jurisdiction to issue the order or decision, the application should include a detailed description of how the Board exceeded its jurisdiction.
- If the party is alleging that the Board’s decision was erroneous in law or did not conform with the Board’s policies regarding the interpretation of the Code, the application should include:
- the law or policy in issue;
- the precise error the Board made in applying the law or policy; and
- how that alleged error casts serious doubt on the Board’s interpretation of the Code.
- If the party is relying on new facts, the application should include:
- what those new facts are;
- why the applicant could not have put them before the Board when it made its original decision; and
- how those facts would have changed the Board’s original decision.
- If the party is alleging that the Board breached a principle of natural justice, the application should include:
- the particular principle of natural justice or procedural fairness that is alleged to have been breached; and
- a description of how the Board failed to respect that principle.
- If the party is alleging any other substantial ground for reconsideration, the application should explain in detail the exceptional circumstance which requires that the Board reconsider its decision.
Time Limit for Filing an Application for Reconsideration
Applications for reconsideration are to be filed with the Board within thirty (30) days of the date on which the written reasons for the decision or order were issued (section 45(2) of the Regulations).
In exceptional circumstances, the Board may extend the time limit “where the variation or exemption is necessary to ensure the proper administration of the Code.” A party applying for reconsideration after the 30-day time limit has expired is required to explain in writing why the time limit should be extended, including the reason why the application was not made within the 30-day time limit.
No Oral Hearings
Normally, applications for reconsideration will be decided on the basis of the written record. Therefore, the parties must express their full arguments in their written submissions.
How an Application for Reconsideration is Processed
Applications for reconsideration are initially received in one of the Board’s regional offices and are reviewed by the Board’s industrial relations officers before being referred to a panel of the Board. The officer may contact the applicant to obtain further information.
The panel of the Board may assess whether there are sufficient grounds for the application for reconsideration to proceed before asking the respondent for submissions. If there is no basis for the application for reconsideration, the Board may dismiss it in a summary fashion (section 16(o.1) of the Code).
When full submissions have been requested, the Board will consider the submissions of the parties and may, without limitation:
- dismiss the application;
- render a decision which modifies the original decision;
- refer the matter back to the original panel (this may be for a new hearing, a partial hearing or to reconsider its decision in light of the Board’s comments on reconsideration); or
- refer the matter to a new panel for a new hearing.
Subsequent Applications for Reconsideration
The Board will generally not entertain multiple applications for reconsideration from the same party unless there are exceptional circumstances for so doing.
FOR ADDITIONAL INFORMATION, YOU MAY CONTACT THE BOARD AT 1-800-575-9696
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