Court File and Parties

Court File No.: Brampton, 3111 998 10 525 Date: 2012-03-14 Ontario Court of Justice

Between: Her Majesty the Queen — and — Mr. Peter Check

Before: Justice I.W. André

Heard on: February 16, 2012

Reasons for Judgment released on: March 14, 2012

Counsel:

• Ms. Kikee Malik for the Ministry of Labour
• Mr. David Rose for the accused Mr. Peter Check

ANDRÉ J.:

[1] Background and Charges

In April 2010, the Ontario Ministry of Labour charged the applicant with a number of offences under the Employment Standards Act, all relating to his alleged failure to comply with orders issued by the Ministry's investigators that mandated him to pay outstanding wages. Mr. Check disputed these orders on the grounds that he was not an employer as defined under the Act and that even if he was, he was impecunious and had twice been declared bankrupt. Mr. Check sought a review of the orders pursuant to section 116 of the Employment Standards Act which provides that a precondition of a review, was a requirement to pay the amount set out in the orders or to file an irrevocable letter of credit. He failed to do either and his appeal of the orders was dismissed in February 2009.

[2] Pre-Trial Application

Against this background and prior to the trial, Mr. Check brings a pre-trial application seeking the following relief from the court:

1. An Order that the ESA Orders which led to this prosecution are not immune from collateral attack and that the prosecution must prove the factual and legal validity of the Orders, as that doctrine is known in law;

2. Alternately, a stay of proceedings on the basis of abuse of process;

3. Within the Alternative submission, a declaration that sections 103, 132 and 137 of the ESA, as they are being used in the case at Bar, are unconstitutional because they allow a violation of the Applicant's rights to fundamental justice, and a fair trial under ss. 7 & 11(d) of the Canadian Charter of Rights and Freedoms (hereafter The Charter).

[3] Crown's Position

The Ministry of Labour opposes the application and argues that its prosecution should be held to "be immune from collateral attack", that a stay of proceedings should not be granted in this case and that the applicable sections of the Employment Standards Act are all constitutional.

2: FACTS

[4] Initial Complaints and Investigation

The Ministry of Labour received 68 complaints in 2007 from university students who claimed that they had provided lifeguard services at various apartment complexes during the summer and had not been paid for their services. The claimants advised that they had been employed by a number of companies called Aquatic Pool Services, the legal name of which was found to be an Ontario registered numbered company, 2092263 Ontario Inc., All Pool Solutions and All Ontario Recreational. The corporate documents indicated that a person called Christopher Hurd was the company's director. Investigator for the first company Ms. Pilon-Quast subsequently contacted an individual called Mr. Keith Elliott who identified himself as an employee of Mr. Check's business. Mr. Elliott advised that Mr. Check was responsible for hiring and firing of staff and had directed him to pursue contracts from management companies and that Mr. Check had signed all contracts with his clients. Mr. Check also signed cheques for employees, opened bank accounts for the company and purchased equipment for an office at 5359 Timberlea Boulevard, Unit 47 in Mississauga, the address and operating centre of Aquatic Pool Solutions. Ms. Pilon-Quast also discovered that Mr. Check operated a number of related businesses all having the same registered address of 5359 Timberlea Boulevard, Unit #57, Mississauga. She discovered that at one point Mr. Check had amalgamated a number of these businesses under the names of All Ontario Snow Services Inc., 1071297 Ont. Ltd., All Ontario Recreational Supplies Ltd. and Ontario Recreation Service Inc. and that he was listed on the corporate documents to be the officer and director of these companies. Corporate documents also indicated that Mr. Check was listed in the incorporating records as the "person authorizing the registration" of Aquatic Pool Solutions, with the corporate name of 2092263 Ont. Ltd.

[5] Contact with Counsel and Negotiations

Attempts to contact Mr. Check by the Employment Standards Officer proved unsuccessful. The investigators issued a demand, under the Employment Standards Act, to have Mr. Check attend their offices to be interviewed. Mr. Check's counsel, a Mr. John Gray, contacted Ms. Pilon-Quast's office and indicated that while it was not disputed that workers were indeed owed wages, there were insufficient funds to do so. Mr. Gray represented that Mr. Check was merely an employee of Aquatic Pools Solutions but was interested in negotiating a repayment plan. He offered to pay $5,000.00 monthly until the outstanding wages and vacation pay were fully satisfied. No payment from Mr. Check was ever received by the Ministry.

[6] Payroll Clerk's Statement

A former payroll clerk of Aquatic Pool Solutions, Ms. Crystal Daniels, also advised Ms. Pilon-Quast that she had no dealings with anyone called Christopher Hurd, and had never met anyone by that name. She intimated that Mr. Check, who paid the workers, only invoked Mr. Hurd's name when pressed for payment of wages.

[7] Subsequent Claims Regarding Mr. Elliott

Mr. Check's solicitor Mr. Gray later provided information to the Ministry of Labour indicating that in April 2008, Mr. Elliott operated a business called All Pools Solutions 2118541 Ont. Inc. which had previously been incorporated by Mr. Check and that that business serviced some of the former clients of Aquatic Pool Solutions and employed some of its staff. Mr. Gray advised that it was Mr. Elliott, rather than Mr. Check, who presented himself as the owner and operator of Aquatic Pool Solutions. However, Mr. Gray presented no documentation or other evidence to confirm this. Mr. Elliott denied that he became the owner or that he operated any of the businesses in question.

[8] Employment Standards Officer's Determination

Upon reviewing the above information Ms. Pilon-Quast concluded that pursuant to the relevant provisions of the Employment Standards Act which defines an employer as an owner, proprietor, manager, supplier, overseer, receiver of or trustee of an activity, work, trade, occupation or profession who has control or direction of, or is directly or indirectly responsible for the employment of a person it, that Mr. Check was the employer and owner or operator of Aquatic Pool Solutions and was therefore responsible for the wages and vacation pay owed to the students.

[9] First Order to Pay

As a result the Employment Standards Officer issued an Order to Pay wages in the amount of $26,591.98 which included a statutory sanctioned 10% administrative fee. The order was dated December 10, 2008 and served on Mr. Check on December 11, 2008. The compliance date was January 12, 2009. Page 2 of the Order/Notice under the Employment Standards Act, detailed how Mr. Check could seek a review of the order. It advised that he had to submit an application along with a copy of the order to the Ontario Labour Relations Board within 30 days of the serving of the order. It advised that payment of the order could be by cheque, money order or by providing the Director a letter of credit. It provided a telephone number for Mr. Check to obtain further information about the letter of credit if he so desired.

[10] Second Order to Pay

Another Order to Pay was issued to Mr. Check on December 18, 2008 by another Employment Standards Officer, James Lange, in the amount of $20,872.52. The letter advised Mr. Check of this order and also contained instructions about how Mr. Check could seek a review of the order.

[11] Third Order to Pay

The Ministry subsequently received an additional 18 complaints regarding outstanding wages from All Pool Solutions and Aquatic Pool Solutions. Mr. Lange investigated the claim by reviewing corporation documents, payroll records, and interviewing Mr. Check's former bookkeeper. He also had meetings with Mr. Check on February 6, 13 and 17, 2009 about the complaints. He then issued another Order to Pay to Mr. Check. The latter did not file an application for a review of this Order to Pay.

[12] Review Application and Dismissal

Mr. Check filed a Notice of Review of the December 2008 Orders to Pay on January 9, 2009. He requested a waiver of the requirement to pay on the basis of his impecuniosity. He maintained that he had been twice bankrupt and was on the verge of a third bankruptcy. On January 27, 2009 the Ministry of Labour responded that Mr. Check's application was incomplete because he had not paid the outstanding amounts. On February 10, 2009 Mr. Check received a further letter from the Ontario Labour Relations Board indicating that his applications for review had been dismissed because he had not complied with the January 27, 2009 letter requiring him to pay the outstanding balances in the December 2008 orders.

[13] Writs of Seizure

The Ministry of Labour subsequently obtained Writs of Seizure from the Ontario Superior Court against Mr. Check. To date they have not recovered any of the monies owing by him.

3: ISSUE NO. 1

[14] Collateral Attack Question

Should the Court order that the rule against collateral attack does not apply in this case, thereby forcing the prosecution to prove the factual and legal validity of the orders in question?

[15] Principles Governing Collateral Attack

The rule governing the propriety of a collateral attack has been distilled and refined in a number of cases. The critical principles relating to this rule are as follows:

1. An administrative order is prima facie of full force and effect unless successfully appealed on judicial review.

2. A judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings except by the means provided by law for the express purpose of attacking it.

   Wilson v. The Queen, [1983] 2 S.C.R. 594 (S.C.C.)

3. There are five conditions precedent to the determination of the validity of an administrative order collaterally challenged in penal proceedings. These are:

   a. The wording of the statute from which the power to issue the order arises

   b. The purpose of the legislation

   c. The availability of an appeal

   d. The nature of the collateral attack in light of the appeal tribunal's expertise and raison d'être

   e. The penalty for failing to comply with the order

   R. v. Consolidated Maybrun Mines (1998), Carswell ONT. 1476 (S.C.C.)

4. Where an applicant's impecuniosity militates against payment of an outstanding balance in an Order to Pay, an applicant can seek a judicial review so as to allow the review to which the applicant is statutorily entitled but only if it can post the required deposit.

   Carillon Decorative Products Inc. v. Ontario (Employment Standards Officer), [2004] O.J. No. 2880 (Ont. C. of A.), para. 4.

5. A court should not, absent exceptional circumstances, entertain an application for judicial review where an alternative remedy is available under the Employment Standards Act.

   Grayker Corporation v. Ontario (Employment Standards Officer), [2006] O.J. No. 2193 (Ont. SCJ) para. 10.

6. In order to circumvent the legislative scheme (regarding the review of an order under the Employment Standards Act), an applicant must establish that it has an inability to pay in order to allow the Divisional Court to entertain the judicial review.

   2021945 Ont. Inc. v. Ontario (Employment Standards Officer), [2004] O.J. No. 4900 (Ont. S.C.J.), para. 5.

7. The rule against collateral attack prevents a party from using an institutional detour to attack the validity of an order by seeking a different result from a different forum, rather than the designated appellate or judicial review.

   B.C. v. Figliola, 2011 SCC 52 , [2011] S.C.J. No. 52 (S.C.C.) para. 28.

8. Administrative law has review mechanisms in place for reducing error or injustice. Those are the mechanisms parties should use.

   Modern adjudicative law and administrative law have gradually established various appeal mechanisms and sophisticated judicial review procedures, so as to reduce the chance of errors or injustice. Even so, the parties must avail themselves of those options properly and in a timely manner. Should they fail to do so, the case law does not in most situations allow collateral attacks on final decisions….

   R. v. Boucher v. Stelco Inc. 2005 SCC 64 , 2005 S.C.C. 64.

9. The harm to the justice system lies not in challenging the correctness or fairness of a judicial or administrative decision in the proper forums, it comes from inappropriately circumventing them.

   Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 , 2003 S.C.C. 63 [2003] 3 S.C.R. 77, at para 46.

[16] Applicant's Submissions on Five Preconditions

The applicant submits that the five clues or preconditions for allowing a collateral attack on the Order to Pay exist in this case.

1. Firstly, the power bestowed upon an Employment Standards Officer in section 103 of the Act is discretionary in that the officer is not statutorily mandated to issue an Order to Pay even if he or she concludes that wages are owing.

2. Secondly, that the objective of the Act as stated in Machlinger v. HOJ Industries (1992), 1 S.C.R. 986 at para. 31, is to protect the interest of employees by requiring employers to comply with certain minimum standards. The harm which the Act seeks to remedy is that individual employees, and in particular, non-unionized employees, are often in an unequal bargaining position in relation to their employers. The applicant submits that allowing the orders to be attacked is not contrary to the purpose of the Act. Furthermore, that the monetary requirement to file an appeal does not lead to the efficient resolution of an employee's claim under section 103.

3. Thirdly, this monetary requirement effectively eliminates the applicant's right of appeal. It is counter to the purpose of the appeal mechanism of the Act and constitutes a breach of Mr. Check's right to make full answer and defence. Additionally, the obligation to pay the money eliminates the right of an appeal of an impecunious applicant. The applicant attempted to avail himself of the appeal but could not on account of his impecuniosity.

4. Regarding the fourth clue, the applicant submits that the legislation did not provide for an accessible appeal mechanism. The Employment Standards Officer made an order without a hearing and that the monetary requirement renders the appeals process meaningless. Furthermore, that the penal process cannot be isolated from the overall process established by the legislature to ensure that the government exercises its powers within the limits prescribed by law.

5. Regarding the nature of the collateral attack the applicant submits that:

   1. The legislature did not provide for an accessible appeal mechanism.

   2. The Employment Standards Officers made the orders under section 103 without a hearing and that the monetary requirement in section 116 (1)(b) means that no appeals tribunal ever considered the matter.

6. Finally the applicant submits that under section 132 of the Employment Standards Act, it is an offence punishable by a fine and imprisonment for failing to comply with an Order to Pay. This makes it even more imperative for orders to be made subject to a collateral attack. Finally, that the rule of law and the rights of Mr. Check requires that he has access to penal proceedings to seek redress from an order under the Employment Standards Act.

4: ANALYSIS

[17] Purpose of the Employment Standards Act

To the extent that a determination of the propriety allowing a collateral attack is premised on an analysis of the five preconditions set out in Consolidated Maybrun Mines, then this may be a good starting point for such an analysis. The purpose of the Employment Standards Act is to protect vulnerable workers who lack union protection from being unfairly deprived of their wages. As such the Act is remedial legislation that protects an important sector of the workforce. The Act therefore sets out an uncomplicated statutory machinery to provide these workers with a mechanism to seek assistance by filing claims to recoup wages which they have earned but which they have not received.

[18] Enforcement Mechanism

The mechanism enforcement of the Act is set out in Part IX which relates to who enforces the Act and what they can do. Section 86 indicates that persons who are considered necessary to enforce the Act may be appointed. Section 89 states that an Employment Standards Officer may exercise powers conferred upon them and shall perform duties imposed upon them by the Act. Section 89(3) is significant in that it states that in exercising any power or making any decision under the Act an Employment Standards officer is not required to hold a hearing. This is significant given the applicant's submission that one of the reasons why the Order to Pay should be made subject to a collateral attack is the fact that the Employment Standards Officers did not hold a hearing before issuing an Order to Pay. Section 91(b) also lists the powers of an officer to examine records, require their production and to question any persons on matters the officer believes may be relevant to his or her investigation or inspection. Finally, section 103 indicates that following an investigation, an officer may order an employer to pay an outstanding amount of wages or vacation pay to employees.

[19] Availability of Appeal

Critical to the determination of whether a collateral attack should be countenanced in this case is the availability of an appeal. Section 116 of the Act provides an appeal for a review of a section 103 order to the Ontario Labour Relations Board but only if the applicant pays the full amount of the orders or filed an irrevocable letter of credit to cover the amount. Additionally, an applicant has a judicially recognized right to a judicial review of an order of the Ontario Labour Relations Board including a decision by the latter not to allow an appeal or review of an Order to Pay if the monetary requirement is not met.

[20] Legislative Intent and Forum

It is clear that the question whether a penal court can adjudicate the validity of an administrative order on a collateral basis is contingent on the provisions of the enabling statute and the legislature's intention regarding the appropriate forum. Clearly, the legislature intended that the Ontario Labour Relations Board would be the appropriate forum for such a review. The expertise of that Tribunal in the adjudication of matters arising under the Employment Standards Act has been judicially acknowledged. See for example Blue Mountain Resorts Ltd. v. Bok (2011), 2011 ONSC 3057 , O.J. No. 2256 (S.C.J.) para. 12. This negates any suggestion that the legislature intended to deprive an individual who is the subject of an order of a right of appeal. On the other hand, the legislature clearly did not intend for an applicant to circumvent the appeal procedures set out in the Act and thereby undermine the raison d'être underlying its enactment.

[21] The Impecuniosity Problem

Therein, from the applicant's perspective, lies the problem relating to the statutory right of appeal. Given the applicant's impecuniosity, the Employment Standards Act essentially eliminates Mr. Check's right of appeal and that given that the Employment Standards Act officer was not required to have a hearing, leaves the applicant within a right of review.

[22] Comparison to Environmental Protection Act

The applicant submits that this effective deprivation of his right of appeal is particularly onerous, given that there is no similar requirement in the Environmental Protection Act (EPA) and that he made a scrupulous effort to exercise his right of appeal but was thwarted from doing so on account of his impecuniosity.

[23] Purpose of Payment Requirement

Regarding the applicant's first point, there is an innocent reason for the absence of a similar provision in the Environmental Protection Act. The latter is concerned about protecting the environment rather than vulnerable workers. Payment of the monetary requirement is clearly meant to ensure that workers' outstanding wages are protected and not unduly delayed throughout meritless review applications. Contrary to the applicant's submission, the payment requirement in section 116 is entirely consonant with the aims and objectives of the Employment Standards Act which is to ensure that vulnerable non-unionized workers are not deprived of their wages by employers.

[24] Alternative Remedy: Letter of Credit

It also appears that the legislature contemplated a situation where a subject of an Order to Pay may not be able to meet the monetary requirements for a section 116(1)(b) appeal. It provides in the alternative that the applicant could file a signed letter of credit. There is no evidence that the applicant made any effort to meet that alternative requirement to permit him to have the Ontario Labour Relations Board review the Orders to Pay.

[25] Judicial Review Option

The applicant submits that the Employment Standards Act contains no mechanism which allows for the hearing of an application to waive monies due under section 116(1)(b) and that this omission automatically bars the impecunious defendant from reviewing a section 103 order. This is not quite correct given that Mr. Check, with the assistance of counsel, could have sought a judicial review of the Ontario Labour Relations Board's February 9, 2009 decision dismissing his application for review and seeking a waiver of the money requirement for a review of the Order to Pay.

[26] Failure to Exhaust Remedies

As the court in Boucher has noted parties who have failed to avail themselves of the appeal and or judicial review options in a timely fashion should be prevented from mounting collateral attacks on final decisions. Indeed, to quote the S.C.C. in Toronto v. C.U.P.E, the harm to the justice system lies not in challenging the correctness or fairness of a judicial or administrative decision in the proper forum, it derives from inappropriately circumventing them.

[27] Applicant's Claim of Ignorance

The applicant submits that he cannot be presumed to have known about his right to seek a judicial review of the Ontario Labour Relations Board's decision given that he was unrepresented when he sought to review the orders to pay under section 116 of the Employment Standards Act.

[28] Evidence of Sophistication

Counsel presents the applicant as an unsophisticated individual who may innocently have been a victim of his own ignorance in properly dealing with the Orders to Pay issued against him. The evidence filed in this application however, does not fully support this conclusion. Before the issuance of the first Order to Pay, Mr. Check's counsel, John Gray, contacted Ms. Pilon-Quast on his behalf. Mr. Gray provided further information to the ESO officer which suggested that Mr. Elliott, rather than Mr. Check, was operating a business called All Pools Solutions.

[29] Failure to Pursue Second Order

Mr. Check did not seek to review the second Order to Pay presumably on account of his declared impecuniosity. The Ministry filed charges against him in April 2010 and by then he had still not initiated any review in the Divisional Court to challenge the decision to dismiss his review application by the Ontario Labour Relations Board. However, he was able to enlist the assistance of counsel John Gray to provide information to Mr. Lynch when he investigated Mr. Check on or about April or May 2009.

[30] Failure to Avail Himself of Remedies

It therefore appears that Mr. Check failed to avail himself of the appeal mechanism provided by the Employment Standards Act and of any judicial review in the Divisional Court.

[31] Penalty for Non-Compliance

Finally, the last factor to be considered is the penalty for a conviction of failing to comply with an order. The penalty includes a fine or term of imprisonment.

[32] Penal Consequences Not Determinative

The fact that jail is a punishment that is open to a trial judge in penal proceedings is a consideration to be assessed in determining whether or not to allow a collateral attack in defence of the charge. However, the existence of those penal consequences is not determinative of the issue. R. v. Eastview Sand and Gravel Ltd., [2001] O.J. No. 5694 (Ont. C.J.) para. 6.

[33] Conclusion on Collateral Attack

In my view, permitting a collateral attack in this matter would encourage the circumvention of the Act in a manner that is contrary to its objectives and would undermine its effectiveness. Furthermore, the denial of such an attack in this case does not adversely impact the applicant's right to make full answer and defence since he is free to offer the defence of impecuniosity as a defence to the charges.

[34] Application Dismissed

In my view therefore, the application to mount a collateral attack of the Order to Pay must fail.

5: ISSUE NO. 2

[35] Abuse of Process Question

Should the prosecution of the applicant be stayed on account of an abuse of process?

Principles on Abuse of Process

1. Courts have jurisdiction to prevent abuses of its process by those responsible for investigation and prosecuting offences. R. v. Boise Cascade Canada, [1995] O.J. No. 1974 (Ont. C.A.) para. 12.

2. The usual though not exclusive, remedy to address an abuse of process is a stay of proceedings. R. v. Boise Cascade Canada, supra, para. 13.

3. A stay should be granted where "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency or where the proceedings are "oppressive or vexatious." R. v. Keyowski, [1988] 1 S.C.R. 657 at 658 – 69.

4. Where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. R. v. Conway, [1989] 1 S.C.R. 1659 at 1667.

5. A finding of abuse of process require overwhelming evidence that the proceedings under scrutiny are unfair and that they are contrary to the interests of justice. R. v. Power, [1994] 1 S.C.R. 601 at 616.

6. While there need not be evidence of prosecutional misconduct for a finding of abuse of process, a stay of proceedings is granted only in the clearest of cases and only where there is no remedy that is reasonably capable of removing the prejudice.

6: ANALYSIS

[36] Applicant's Basis for Stay

The basis for the applicant's request for a judicial stay of proceedings are as follows:

1. The orders were made without a formal hearing.

2. The applicant was denied his right to review those orders on account of his impecuniously. As a result the precondition in section 116(1)(b) denied the applicant any meaningful review of the order and the prosecution's decision to prosecute Mr. Check knowing that there was no meaningful review. Finally, that the Ministry of Labour continues to pursue Mr. Check knowing full well that he is impecunious. Compounding the problem is the fact that the Ministry of Labour has obtained Writs of Seizure in the Superior Court and the fact that the use of criminal courts to collect a debt or realize on a civil claim may constitute an abuse of process. R. v. Laird 1983 Carswell Ont. 1342 (H.C.).

[37] Absence of Formal Hearing

Regarding the first point, the absence of a formal hearing does not constitute an abuse of process. The Employment Standards Act is remedial legislation enacted to assist vulnerable employees. The Act gives officers powers of investigation that include the right to inspect or review documents, to do corporate searches to determine ownership of companies and to interview witnesses who have knowledge of the issues in conflict.

[38] Adequacy of Investigation

With respect to the orders in question, the investigators spoke to Mr. Check's lawyer and with respect to the third Order to Pay issued in May 2009, interviewed Mr. Check three times. There is nothing to suggest that the officers did not fulfill their statutory duties. The fact that they decided to issues Order to Pay does not, in and of itself, vitiate the manner in which they investigated this matter.

[39] Bankruptcy and Impecuniosity

The second contention relates to Mr. Check's impecuniosity based on his bankruptcy. It is significant that the Employment Standards Act does not contain a statutory provision that nullifies or negates an Order to Pay where an individual who is found by an investigator to be an employer under the Act declares bankruptcy. Such a provision would eviscerate the effectiveness of the Act given that it would give some employers a statutory loophole to avoid their obligations to their employees.

[40] Bankruptcy Does Not Negate Orders

Therefore, the fact that someone who becomes the subject of an Order to Pay declares bankruptcy, does not automatically stop or negate the enforcement procedures of the Act. This is so for the simple reason that a few unscrupulous employers may well transfer their assets to a third party and declare bankruptcy to frustrate the enforcement provisions of the Employment Standards Act.

[41] Judicial Review as Remedy

I hasten to say that there is no evidence suggesting that Mr. Check falls into this latter category. However, this is why a judicial review of the Ontario Labour Relations Board's decision and an application to waive the monetary requirement in section 116(1)(b) was necessary, because it would have forced the Court in which the review application was made to specifically deal with Mr. Check's alleged impecuniosity. His failure to purse this avenue forces me to conclude that the Employment Standards Act did not specifically deny him a meaningful review of the Orders to Pay.

[42] Impecuniosity as Basis

The application to permit a collateral attack on the Order to Pay and for a Stay of Proceedings are based on Mr. Check's alleged impecuniosity.

[43] Definition of Impecuniosity

Documents filed on his behalf indicate that he was discharged from bankruptcy in 1997 and 2004. Income Tax documents from 2007 to 2010 indicate that his annual income in each year amount to $26,000 in 2007, $19,300 in 2008 and $5,214.00 in 2010. He has filed documents related to his personal bank account showing the balances between 2007 to 2009. However, the fact that Mr. Check had twice been bankrupt and had modest income between 2007 and 2010 does not necessarily establish his impecuniosity. As the Superior Court of Justice noted in Grayker Corp. v. Ont. (Enforcement Standards Officer), [2006] O.J. No. 2193, para. 16"impecuniosity is something more than having no assets. The plaintiff must establish that it and its shareholders cannot sell assets, borrow or otherwise raise the funds to post the security."

[44] No Evidence of Efforts to Raise Funds

This is clearly consistent with the purpose of the Employment Standards Act which is to protect workers from being unfairly deprived of their wages. There is no evidence that Mr. Check made any efforts to raise the funds or to post the security.

[45] Use of Criminal Courts to Collect Debt

Do the Writs of Seizure obtained by the Ministry of Labour and the prosecution of Mr. Check constitute the use of the criminal courts to collect a debt or realize on a civil claim?

[46] Prosecution as Enforcement Mechanism

In my view they do not. The prosecution of Mr. Check is merely one mechanism in a panoply of enforcement mechanisms intended to ensure compliance with the Employment Standards Act. Section 132 sanctions the prosecution of those who fail to comply with an Order to Pay and to seek penalties that may deter others from violating the Act. Seeking recourse to this mechanism in this case does not constitute an abuse of process. If it did then that would limit the effectiveness of the Act in ensuring that workers are paid the wages due to them.

[47] Conclusion on Abuse of Process

Based on the above, I am unable to stay the penal proceedings against Mr. Check on the basis that it constitutes an abuse of process.

7: ISSUE NO. 3

[48] Charter Violations

Does section 103 violate sections 7 and 11(d) of the Charter?

[49] Section 11(d) of the Charter

Section 11(d) provides that:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[50] Section 7 of the Charter

Section 7 provides that:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[51] Administrative Proceedings and Section 11

The Supreme Court of Canada has held that administrative proceedings instituted on behalf of the public pursuant to a remedial statute is not the type of offence which is covered under section 11.

See R. v. Wigglesworth (1987), 2 S.C.R. 541 at 552.

[52] Section 103 Does Not Create Offence

Neither does section 103 created an offence in the meaning contemplated by section 11(d). Neither does the section violate section 7 of the Charter given that it seeks, not so much to deprive an individual of his life, liberty or security, but to protect and secure outstanding workers remuneration if and when determined by an Employment Standards Officer.

[53] Investigation Powers

The powers of investigation under section 103 enable an Employment Standards Officer to determine the legitimacy of claims regarding unpaid wages or vacation pay. There are analogous provisions in similar legislation such as the Environmental Protection Act or the Ontario Occupational Health and Safety Act. Without these powers, it may be nigh impossible for a non-union worker to get some form of redress for unpaid wages without recourse to legal action which is both costly and time consuming.

[54] Efficiency and Review Provisions

To require the Ministry of Labour or Environment for that matter to hold a full blown hearing to determine the legitimacy of a claim for outstanding wages would undermine the intention of the Act which is to provide an efficient mechanism whereby these claims could be investigated in a timely fashion. Clearly, the review provisions under section 116 ensure that the rights of the individual or corporation who is the subject of an Order to Pay, are not sacrificed or discarded. They also ensure that outstanding unpaid wages are protected while the subject of an Order to Pay exercises his or her right to review an order from an Employment Standards Officer.

[55] Conclusion on Section 103

To that extent section 103 does not violate section 7 or 11 (d) or the Charter.

[56] Sections 132 and 137 Charter Challenge

Do sections 132 and 137 of the Employment Standards Act violate sections 7 and 11(d) of the Charter?

[57] Right to Make Full Answer and Defence

In my view they do not. Neither denies Mr. Check his right to make full answer and defence in a trial. Neither denies his right to be presumed innocent or to have a fair and public hearing by an impartial tribunal. Whether or not he has violated sections 132 or 137 is a decision to be made, not by an Employment Standards Officer who issued an Order to Pay but by an independent judicial officer in a trial.

[58] Final Order

Accordingly, the application is denied.

Released: March 14, 2012

ORIGINAL SIGNED BY JUSTICE I.W. ANDRÉ

Signed: "Justice I.W. André"