COURT FILE NO.: 224/08
DATE: 20081014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ferrier, wilson and lederman jj.
B E T W E E N:
848347 ONTARIO LIMITED o/a SOLID GOLD INN
Applicant
- and -
CHRISTINE LOWE, ONTARIO LABOUR RELATIONS BOARD and MINISTRY OF LABOUR
Respondents
Andrea M. Habas, for the Applicant
Voy T. Stelmaszynski, for the Ontario Labour Relations Board
Brian A. Blumenthal and
Linda H-C. Chen, for the Ministry of Labour
HEARD at Toronto: October 14, 2008
JANET WILSON J. (Orally)
[1] The applicant employer’s request for judicial review of the decision of the Ontario Labour Relations Board (the Board) dated April 28, 2008, is dismissed. The Board refused the applicant’s request to extend the time for a review of the order to pay a former employee made by the Employment Standards Officer, pursuant to the Employment Standards Act, 2000 S.O. 2000 c.41 (the Act).
[2] Through inadvertence, the applicant’s solicitor failed to initiate the request for review of the order to pay within the 30-day period stipulated in the Act. The request for review was initiated six months after receipt of the order to pay. The applicant asserts that the order to pay unpaid wages from the date of termination to the date of the hearing was clearly wrong in law.
[3] The appropriate standard of review of a discretionary decision of the Board is reasonableness. We conclude that the Board’s discretionary decision to dismiss the applicant’s request for the extension of time was reasonable in the circumstances of this case.
[4] The Board emphasized the underlying purpose of the Act, that is to promptly and efficiently resolve issues of entitlement of employees to compensation following termination. The Board reaffirmed that employment standard applications are time sensitive. Prejudice caused by delay is presumed, particularly in a case such as this when the delay was not a matter of days but was in excess of six months. (See Rizzo v. Rizzo Shoes Ltd. 1998 837 (SCC), [1998] 1 S.C.R. 27 at 42 and Rainbow Concrete Industries Ltd., [2000] O.E.S.A.D. No. 359 (Misra Adjudicator) at paragraph 27.
[5] There is no consistent authority that it is a prerequisite to consider the merits of a review application when considering whether the extension of time should be granted.
[6] In any event, we have considered the applicant’s argument that the Employment Standards Officer was clearly wrong in making the compensatory order for unpaid wages to the date of the order in light of the finding of fact with respect to the employee’s inability to mitigate after termination. He states at p.47 of the Record:
The claimant has not been able to seek work due to her illness, she has lost confidence due to the appearance of the condition and has not been able to mitigate her loss.
[7] This statement is open to different interpretations. We are not persuaded that the above-noted statement should be definitively interpreted as a finding that the employee was not able to continue to work for the employer after the date of termination. She was a sixteen-year employee. We note that the employee was still working for the employer in spite of health difficulties at the date of her termination.
[8] The Board decision not to extend the time for the review was reasonable. There is a clear line of authority in Board decisions to have strict enforcement of timeframes in light of the remedial purpose of the Act recognizing the concerns for the protection of vulnerable employees who have been terminated.
[9] The application for judicial review is therefore dismissed.
COSTS
[10] The parties agree that the appropriate award of costs is $3500.00 payable by the applicant to the Ministry of Labour.
FERRIER J.
JANET WILSON J.
LEDERMAN J.
Date of Reasons for Judgment: October 14, 2008
Date of Release: October 17, 2008
COURT FILE NO.: 224/08
DATE: 20081014
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ferrier, wilson and lederman jj.
B E T W E E N:
848347 ONTARIO LIMITED o/a SOLID GOLD INN
Applicant
- and -
CHRISTINE LOWE, ONTARIO LABOUR RELATIONS BOARD and MINISTRY OF LABOUR
Respondents
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: October 14, 2008
Date of Release: October 17, 2008