[1998] OLRB REP. JULY/AUGUT 542
1588-98-ES Darivs Bhathena o/a Atlantic Express, Applicant V. Rocco DeFrancesco and Ministry of Labour, Responding Party
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; August 10, 1998
An application for review of an order to pay was filed on July 31, 1998. However the applicant has not paid the monies into trust as is required by section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c. 8. The, applicant requests an extension in order to pay the funds into trust.
Section 68 of the Employment Standards Act as amended, provides in part, as follows:
68 (3) An application for a review must be made,
(a) in the case of an application for a review of an order, within 45 days after the date of the order;
(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67(2).
(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.
(5) In the case of an order that requires the payment of money to the Director in trust, the Board may not extend the time for applying for a review if the Director has paid the money to an employee or employees under subsection 72(2).
(6) An application for a review must be in writing.
(7) An application for a review of an order requiring the applicant to pay an amount is not properly made and the Board shall not proceed with the review unless, within the time for applying for the review, the applicant pays the amount to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.
Sub-section 68(3) of the Employment Standards Act as amended, requires that an application for review be made within 45 days after the date of the order to pay. Sub-section 68(7) states that an application for review of an order to pay is not properly made unless the monies are paid into trust.
The essence of those provisions is to require the payment into trust of those monies directed by an order to pay as part of the application for review. An application for review is not complete unless the monies have been paid into trust. The Board's available discretion under sub-section 68(4) is to extend the time for applying for a review, not to extend the time for paying monies into trust. In order to exercise that discretion, the conditions precedent to making an application need to be met in order to determine whether the late filing of that application may be appropriate. It seems inconsistent with the statute to effectively extend the 45 day time limit where a complete application for review has not yet been filed. Such an approach is also more consistent with the prohibition set out in sub-section 68(5). Once an application is properly filed the Board may consider whether it is appropriate in the circumstances to extend the time for applying and allow the matter to proceed.
Alternatively in the request before me the applicant states a present inability to pay without any supporting submissions. That assertion is insufficient to warrant an extension.
This request for an extension to the time for applying for review is therefore denied.