Melanie Lamoureux v. JYSK Linen N Furniture Inc., 2016 CanLII 21248 (ON LRB)
Melanie Lamoureux, Applicant v. JYSK Linen N Furniture Inc., and Director of Employment Standards, Responding Parties
Employment Practices Branch File No: 70131786-3
BEFORE: Brian McLean, Alternate Chair
DECISION OF THE BOARD: April 13, 2016
1. The employer has requested reconsideration of the Board’s decision dated November 20, 2015 in this matter. Both parties have filed submissions on one of the issues raised in the request for reconsideration (the damages award) following instruction from the Board.
2. At the outset, the employer argues that a different panel of the Board should determine its request for reconsideration. While that may be the practice by labour relations tribunals in some jurisdictions, it is not the practice at the Ontario Labour Relations Board. In United Brotherhood of Carpenters and Joiners of America 2011 CanLII 66912 (ON LRB), 2011 CanLII 66912 the Board discussed this practice and the Board’s reconsideration power generally in the context of a claim that the Vice-Chair who heard the original case was biased and ought not to determine the request for reconsideration. In my view the Board’s reasons are equally applicable to an application under the Employment Standards Act as they are under the Labour Relations Act.:
6. The Board’s reconsideration power is rarely successfully invoked. This is not due to any self-serving characterization that the Board’s initial decisions are rarely incorrect (or that most reconsideration requests are frivolous) but because the hurdle to overcome before the Board will reconsider its decision is necessarily high. That is because there is a need in any litigation for finality to the decision-making process. This is particularly true in labour relations where, notwithstanding the increasing length of proceedings before the Board, heed is still attempted to be paid to the notion that labour relations delayed is labour relations denied. This policy is not recent or novel. It traces its origin over fifty years and was expressed early in Detroit River Construction Ltd., 63 CLLC ¶16,260 (and has been frequently quoted or rephrased in subsequent cases):
While depending upon the circumstances of the case and the applicable principles of natural justice, the Board ought not to be as strict or as technical as a Court, it must nevertheless, in our view, recognize the necessity for and apply some principle of finality to its decision. It stands to reason that when a party has gone through the ordeal, expense and inconvenience of a hearing and obtained a decision in his favour, that he should not be deprived of the benefit of that decision except for good cause. The Board ought not to encourage a practice whereby one party can remain silent throughout a hearing, and after he has discovered the weak points in his adversary’s armour be permitted to exploit them by calling evidence at another and later hearing which he could and should have presented at the original hearing. If it were otherwise, the door would be open in any given case to ceaseless and never-ending hearings each serving as a prelude to the next ad infinitum and no one could ever safely rely on any decision as finally settling the rights of the parties.
The Board has frequently said that its reconsideration power is neither a tool for a party to repair the deficiency of its case initially nor an opportunity to reargue it. Moreover, the Board will generally not reconsider its decisions unless the requesting party has new evidence that would not only be practically conclusive of the case but also which could not have reasonably been obtained earlier.
7. Because of this significant concern that old arguments, unsuccessful initially, will simply be recast or reargued, evidence that was or could have been reasonably available earlier will not be sought to be adduced, on reconsideration the Board’s practice for almost 60 years has been to remit a request for reconsideration to the original panel that originally heard it.
8. For example, in Knight Security Guards Limited,  OLRB Rep. June 377, judicial reviews of the earlier Board decision had been unsuccessful but both the Divisional Court and the Court of Appeal expressed serious reservations about the correctness of the Board’s interpretation and indicated they would have found otherwise. This prompted a reconsideration request not dissimilar to the Applicant’s:
5. In its latest request for reconsideration, the applicant requests “that this matter be heard by a panel of the Board which was not hitherto involved in these cases. We also respectfully suggest that a five member Board presided over by the Chairman or alternate Chairman be appointed to entertain our request for reconsideration.”
6. In support of its request concerning the manner in which the Board should be constituted to review its decision in this matter, the applicant submits that “in the interests of the Board, the parties and the general public and to insure that justice appears to be done, we have recommended that the same panel of the Board should not be called upon to decide on the propriety of its own decision. This, in our view, is consistent with the principles of natural justice.”
7. The applicant further submits that “… In view of the opinion expressed by the four Judges, there is certainly reason to gravely doubt the correctness of the Board’s decision and in particular its interpretation of section 9. In our respectful submission, the Board is clearly in error. When an administrative tribunal such as the Board is given exclusive jurisdiction to determine all questions of fact or law that may arise in any matter before it and also is given the protection of a wide privative clause, it ought not refuse to reconsider its decision in circumstances such as these, especially when doubt has been cast upon it by a superior Court. There are, of course, no facts in dispute. The main issue is one of the proper legal interpretation to be given to section 9. A refusal by the Board to deal with the matter at this stage would, in our respectful submission, be tantamount to ignoring the considered opinion of the Courts on this matter, as well as ignoring any assistance or argument questioning its decision…”
9. The decision dated September 17th, 1968 is not merely the decision of a division of the Board which heard the case but is, in fact, the decision of the Board. It is trite to say that the jurisdiction conferred by section 79(1) [now 114] of the Act, whereunder the Board may reconsider any decision, must be exercised by the division which is seized of the matter. The very act of reconsideration contemplates that the matter will be considered again by the division which considered the matter the first time. If section 79(1) contemplated that a decision of the division could be reviewed by another division of the Board, the Act would have provided for review rather than reconsideration.
10. The Board has never adopted the practice of having one division of the Board to sit in appeal on decisions of another division. In our view, the Act is not broad enough to permit the Board to set up an appellate division in the manner suggested by the applicant in this case.
Or put another way, more recently in SNC-Lavalin Inc., 2010 CanL11 66545 at para. 5:
The Board’s normal approach when dealing with a reconsideration request is to have the same panel of the Board that issued the decision determine the request for reconsideration of that decision unless there are exceptional circumstances that warrant a different panel of the Board undertaking a review of that initial decision. Simply put, one panel of the Board does not conduct an appellate review of another panel’s decision. See Metropolitan Plumbing & Heating Contractors Association,  OLRB Rep. Sept. 1252. For these reasons, this panel of the Board is determining the merits of the applicant’s reconsideration request.
Although there may not be “any absolute legal requirement that the power of reconsideration can only be exercised by the panel making the original decision,” see EKT Industries Inc.,  OLRB Rep. May 696 at para. 13:
… No doubt it is convenient and prudent to have the original panel reconsider its decision because that panel will be in the best position to know the evidence and argument that was before it and to decide whether its decision should be varied. Indeed, if the request for reconsideration involves a challenge to the Board’s factual findings or reference to the evidence before the Board, the case may have to go back before the original panel because, in the absence of a transcript, there is no way that anyone else would be in a position to address those issues. If another panel tried to deal with the matter it might be drawn into what is, effectively, a trial de novo, which would seriously undermine the finality of the decision which section 106 itself contemplates. …
This request is almost a textbook justification for such policy. Almost all of it relates to arguments allegedly misapplied or misconstrued apparently made at the initial hearing or evidence (or inferences from evidence) allegedly improperly drawn or not before the original panel. Who better to determine whether this is evidence (or inference from evidence) or arguments that were originally made or could have been made at the hearing than the original hearing Vice-Chair? Another Vice-Chair of the Board (or three as the applicant requests here) would be in no real position to determine to what extent these are arguments already made and adjudicated upon. Granting the applicant’s request to place this application before another panel in essence amounts to granting the applicant, in the guise of reconsideration, a hearing de novo. In my view, that defeats the Board’s jurisprudence about reconsideration only being rarely invoked and does serious harm to the notion of finality of decision-making in labour relations. Like any unsuccessful party before the Board (whether they are as passionate in their views of the case as may be the situation here or not), this is an invitation to a second level of decision-making before the Board. That is neither consistent with the Board’s jurisprudence nor helpful in the advancement of labour relations in this province.
3. There is nothing about this case which would cause the Board to depart from its usual practice. Accordingly, I will determine the request for reconsideration.
4. There are two general grounds for the employer’s request:
(a) the decision contains factual and/or policy errors on the merits of the application;
(b) the damage award made is excessive in fact and law.
5. On the first point, the employer’s request for reconsideration is simply an attempt to reargue the case. It can be dismissed on that basis.
6. In any event, I disagree that the decision contains factual or policy errors. The facts were largely not in dispute and were as set out in the decision. What was in dispute is whether an employer reprises against an employee who has taken a leave under the Act when it uses the opportunity of the leave to eliminate the employee’s position. In my view, such conduct by the employer is clearly a reprisal and, were it otherwise, would significantly diminish the right of employees to take leaves.
7. This was not a case where the employer was treating the employee the same as if she had not taken the leave. The employer’s evidence was that had the employee not taken the leave her position would not have been moved at that time and perhaps ever. In my view, that is a reprisal, made more clear by the fact that the employer’s “plans” to move the position were wishful thinking rather than plans, except at the point where the applicant advised that she was taking the leave which was when the employer sprang to action.
8. Accordingly, this ground of the request for reconsideration is dismissed.
9. In seeking submissions on the request for reconsideration of the measure of damages which were awarded, the grounds raised in the request for reconsideration caused me to reconsider the November 20, 2015 decision wherein I assessed the employer’s failure to mitigate argument and that, in addition, the decision dealt with an issue (reinstatement), albeit mainly in obiter, that the parties had not addressed at the hearing of the matter. In light of the submissions I find it appropriate to vary the decision.
10. My reading of the request for reconsideration with respect to the issue of damages is that in the employer’s view the amount of damages was too high for at least two reasons. First, that the decision did not adequately or properly take into consideration the applicant’s alleged failure to mitigate her damages. Second, in the employer’s submission the damages assessed were too high because they improperly considered reinstatement as the prima facie appropriate remedy (without regard for the statutory language) and the damages were increased as a result of that.
11. I have decided to vary my decision with respect to the applicant’s mitigation efforts for the following reasons.
12. The starting point for the applicant’s job search efforts is March 11, 2013, the day her employment was terminated. The applicant began searching for another job on April 1, 2013. Between April 1, 2013 and January 21, 2014 the applicant sent her resume to numerous employers. She also made many online searches for jobs through general job sites (such as Workopolis) and to potential employers. As the decision notes, the cover letters for her resume were of the “cookie cutter” variety which set out her intent to find a translator position and attached her resume. This may not be the ideal way to search for a job, however, it is a reasonable way to do it. Accordingly, for this period I have little hesitation in finding that the applicant properly attempted to mitigate her damages.
13. I note that in its request for reconsideration the employer asserts there were no job applications between October 15, 2013 and January 2, 2014. However, it appears the employer may have not taken into consideration the two pages of the applicant’s materials which cover those dates and describe numerous job search efforts.
14. After January 2014 there is a gap of 14 months during which the applicant filed no applications for jobs. However, the primary reason for that is that she had a baby in late February 2014. As the November 2015 decision notes, it was (and is) my view that the employer is responsible for that period; had the applicant been returned to work following her leave she would have been eligible for Employment Insurance benefits on her parental leave. In my view, the loss of those benefits is a loss which the employer is liable for.
15. The November 20, 2015 decision’s deduction of one month for the damages for a failure to mitigate arose out of this period. In my view the applicant was entitled to discontinue her job efforts in the year following the birth of her child. To hold otherwise would undermine the leave provision of the Act and, for that matter, the Employment Insurance program.
16. That then leaves the period from approximately March 20, 2015, when the applicant resumed her job search efforts following the birth of her baby, to September 16, 2015, the final hearing date where the applicant advised the Board that she was not seeking reinstatement as a remedy. During this period the applicant’s job search efforts mostly comprised online searches at newspapers and general job sites (like Workopolis). She did not search these sites every day, but only approximately once per week. It was only by May 24 that she sent a resume to a potential employer in this period. Other resumes were sent June 7, June 26, July 9, July 27 and August 3.
17. I now accept the employer’s argument that the applicant’s job search efforts during this period were half hearted, likely reflecting the fact that she was engaged in the hearing of this application. I come to that conclusion even though, realistically, part of the period was in the summer when job prospects were likely low. Taking these factors all into consideration, I reduce the damages for this period by 3 months.
Period For Which Damages Are Awarded
18. This brings the analysis to the next point in the request for reconsideration which, at its heart, is the employer arguing that it ought not to be responsible for the entire period – from termination to the final day of hearing – of loss the applicant suffered. The employer relies on s.104(1) of the Act which states:
104. (1) If an employment standards officer finds a contravention of any of the following Parts with respect to an employee, the officer may order that the employee be compensated for any loss he or she incurred as a result of the contravention or that he or she be reinstated or that he or she be both compensated and reinstated:
4. Part XVIII (Reprisal).
19. The employer argues that the Board failed to consider the language of the statute when it determined that reinstatement was prima facie the appropriate remedy in cases like this and that the damages calculation were enhanced inappropriately as a result. I disagree for the reasons expressed in the decision and as follows.
20. In the November 20 decision, there is a fairly lengthy discussion on the issue of reinstatement in leave/reprisal cases under the Act. This discussion forms part of the focus of the employer’s request for reconsideration. However, the issue is something of a red herring since the applicant did not seek reinstatement. All that the decision not to reinstate does is to, possibly, set the end date for the accrual of damages for lost wages.
21. There is no doubt that the Board, in standing in the shoes of the Employment Standards Officer (see s.119(6)) has broad powers under s.104(1) in determining a remedy. However, that being said, the section contemplates three remedies: reinstatement, compensation for any loss he or she suffered as a result of the contravention, and both reinstatement and/or compensation for any loss. If the employee is not reinstated, the Board may order compensation for any loss he or she incurred.
22. In this case, the applicant did not seek reinstatement. Accordingly, the question which then had to be assessed was: what loss did the applicant incur as a result of the contravention? Or in other words, what are her damages?
23. In assessing this question, it is critical, in my view, that the Board has the authority under the Act to reinstate the applicant to her employment and compensate her for any loss she suffered. Therefore, in my view, the date at which the employer’s responsibility for the losses should be ended (subject to mitigation – or failure to mitigate) is the date at which the Board could have reinstated the applicant, or, as in this case, the date at which the applicant gave up the right to seek reinstatement.
24. I am satisfied that it was the employer that caused the applicant to become unemployed through its contravention of the Act and that (again, subject to mitigation) it is fully responsible under the Act for the applicant’s losses arising from the contravention. In other words, the applicant should be placed in the same position she would have been, but for the employer’s violation of the Act. I do not agree that employees who are fired for exercising rights under the Act should be compensated for losses less than their damages or should, receive virtually the same compensation as an employee would receive in a wrongful dismissal lawsuit, where there is no violation of the law.
25. For all of these reasons, I vary the amount of the Order for compensation by reducing the amount owing by a total of four months (the one month deducted in the November 20, 2015 decision plus the three months indicated above). The applicant appended to her submissions a calculation of the damages which she believes are owing. The employer did not respond to that calculation. It shall have seven days to file submissions regarding those calculations. If no submissions are filed the Board will issue an Order for compensation based on the calculations provided by the applicant, less three months pay, and the interest on that amount.
26. I remain seized of this issue.