Reconsideration of a Board Decision

Both the complainant (who is sometimes called an applicant, depending on the type of matter filed with the Board) and the respondent can ask the Board to reconsider its decision and file an Application for Reconsideration. Persons or organizations who have been given intervenor status cannot ask the Board to reconsider its decision.

Very rarely, the Board will initiate its own reconsideration of a decision, without being asked by a party. When this happens, the parties are usually notified and provided with an opportunity to make submissions.

The reconsideration process is not an appeal process. It is subject to a discretionary power that the Board only exercises in very narrow circumstances. This is because the Board’s decisions are meant to be final.

The Board will only entertain an application if you raise a serious question on one of the following grounds in a persuasive manner. If that is not the case, the Board will summarily dismiss the application with a brief letter decision.

For the Board to exercise its discretion to entertain your application, you need to prove that at least one of the following things happened:

1. A new fact has come to light that was not known when the Board made its original decision and that could not have been known at the time. This new fact must be important enough that it would have changed the Board’s decision.
2. The Board made a mistake of law or policy that is so serious it raises concerns regarding the interpretation or application of the Canada Labour Code. For example, the Board considered the wrong sections of the Code when it made its decision, or it did not follow its own existing decisions on the same issue without explaining its reasons for not doing so.
3. The Board’s process compromised procedural fairness. The Board will only intervene on this ground if the applicant was not given the opportunity to participate in the process or if the applicant raises serious allegations of bias that are based on actual supporting facts and evidence.

As the applicant, you have the onus to establish one of the above-mentioned grounds for reconsideration. The threshold for reconsideration is high, and the Board rarely intervenes to review or change its previous decisions.

VERY IMPORTANT: Please review the following information carefully before filing an Application for Reconsideration:

• The Board will NOT reconsider the decision in your favour if the arguments in the Application for Reconsideration are the same arguments that were before the original panel of the Board or additional arguments that could have been presented to the original panel.

• The Board will NOT reconsider a decision in your favour if your only argument is that you had asked for an oral hearing and the request was not granted.

• If you neglected or refused to provide your position or information in writing in your original file, you will not be able to raise a breach of the principles of procedural fairness as a ground for reconsideration.

• If you are going to argue that the Board member or members that heard the original matter was or were biased, you need to prove that through facts and evidence. If you had the chance to raise that argument during the hearing of the original matter and you did not do so, your Application for Reconsideration on that ground will likely be dismissed.

Because there is no form to help you, make sure you include all the following information in the letter:

• Your name, address, email address, and telephone number.
• If you are being represented by someone else, their name and contact information (address, email address, and telephone number).
• A copy of the original decision that you are asking the Board to reconsider, or the citation of the original decision (e.g., Letter Decision no. XXXX or Reasons for Decision no. XXXX and the date of the decision).
• The name or names of the other party or parties, with their contact information (address, email address, and telephone number).
• Information, evidence and arguments explaining clearly why you believe the Board should exercise its discretion and correct its original decision. For more on this, see the section above called “What do I need to prove for my application to be successful?”
• If you want the Board to hold an oral hearing, you need to ask it to do so and explain why you would like an oral hearing. Most Applications for Reconsideration are decided by the Board based on the written materials that are filed by the parties.
• What you want the Board to order if you are successful. To find out what the Board can order, see the section called “What can the Board order?” below.

When the Board receives an Application for Reconsideration, it can:

• summarily dismiss the application;
• confirm the decision; 
• overturn part of the decision;
• overturn the entire decision; or
• order a new hearing.