[1999] OLRB REP. MARCH/APRIL 306
3931-98-ES Circuit World Corporation, operating as PC World, Applicant v. Frank Csikos and Ministry of Labour, Responding Parties
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; March 26, 1999
This is an application for review under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the "Act") of Order to Pay No. 51460 dated October 13, 1998, (the "Order"). All of the material initiating the application was received by the Board on February 10, 1999, having been forwarded from the Whitby office of the Ministry of Labour by transmittal letter dated February 5, 1999.
The applicant had forwarded to the Employment Standards Officer who had carriage of the matter a letter dated December 23, 1998 with which was enclosed the payment required by the Order. That letter stated:
"We a [sic] currently in negotiations with the claimants [sic] counsel and are working towards a settlement. In the event we are unable to reach an agreement and based on previous correspondence, this letter serves as the corporations [sic] formal notice for a hearing to appeal the above stated order."
Although the applicant purported to make the application for review by its letter of December 23, 1998, as the letter did not arrive at the Board until February 10, 1999, the application was only made on that date.
The employee affected by the Order, Frank Csikos, by his agent, advised the Registrar by letter dated February 19, 1999 that he was "...objecting to any appeal consideration that may be contemplated by the Ministry of Labour on behalf of PC World." Contrary to the apparent understanding of Mr. Csikos' agent, the Ministry of Labour does not normally act on behalf of the applicant in an application for review of an Officer's order. Counsel for the Ministry of Labour will normally support the Officer's order. In this case, the Ministry and Mr. Csikos would have similar interests, adverse to the interest of the applicant.
Furthermore, Mr. Csikos' agent stated he objects to an "appeal" being
“…..considered because the 45th day has lapsed and too [sic] date the company has not forwarded an appeal to the Director and grounds for the application as outlined in section 68, subsection (2) and 2.1 of the Employment Standards Act.
Thirdly, section 68(2.2) of the act which alludes to extending time based on the denial of natural justice does not apply to the employer in this case because on the above mentioned facts; however to allow the appeal would be a violation of the natural justice for my client because the facts of this case has shown that the preponderance of evidence are in favour of Mr. Csikos and it would be a travesty of justice to do otherwise considering that my client is currently unemployed with a wife and four children to support."
- The Registrar, by letter dated March 12, 1999, acknowledged receipt of the application and advised the applicant that the application appeared to be untimely. He also informed the applicant that it could request the Board to extend the time for filing the application and provide detailed reasons in support of that request. The applicant made detailed submissions to the Board in response to the Registrar's letter by letter dated March 22, 1999. That letter stated:
"In response to your letter of March 12, 1999, we are asking for an extension of time for filing the appeal for the following reason [sic]:
During the period following our receipt of the Order to Pay, we were engaged in ongoing discussions with counsel to Mr. Csikos in an effort to resolve this matter on a mutually satisfactory basis.
On November 25, 1998, we were scheduled to have a meeting at which time we expected the matter to be concluded. Unfortunately, counsel to Csikos was forced to cancel the meeting as a result of car problems. This meeting was rescheduled on November 30, 1998 which as you know was the last day to file an appeal. Unfortunately, I heard nothing from counsel to Mr. Csikos that day, despite phone calls to his office.
At the same time, I was heavily involved as the lead spoke-person for the Company in its negotiations for a new agreement with the Canadian Auto Union. This was a critical time for the Company as a failure to reach an agreement would have had an immediate and serious impact on the future of the company. Those negotiations more or less continued during those first two weeks of December.
Immediately, after the conclusions of the negotiations, I suffered a serious setback in my health which caused me to be away from the plant from mid-December to the beginning of January, 1999.
During this time frame, the Company received a letter which caused our Finance Head to file the appeal together with the appropriate check [sic].
It was clear throughout the discussions to both counsel to Mr. Ckicos [sic] and the employment standards officer, that the Company would be appealing the Order to pay if those discussions would proved unsuccessful.
In these circumstances, we do not believe the claimant has suffered any prejudice, yet, it would be highly prejudicial to the Company, should our appeal be denied, on the narrow technical basis of timeliness. We would therefore ask you to accept our application for an appeal and to scheduled an hearing accordingly."
- The agent of Mr. Csikos, in his letter of February 19, 1999 to the Registrar, stated his first ground of objection in the following terms:
"Firstly, PC World never complied with the Ministry's request when an order was issued on October 21, 1998 to pay. The company deliberately choose [sic] not to pay. The company had approximately six months since the decision was made to negotiate a settlement but this was not done even though Mr. John Bartitiw in his letter dated December 23, 1998 made that comment. The fact of the matter is that his claim is not true and I have never spoken to this individual.
The company conveniently took that position when the company was threatened by collection action by Mr. Robinson in his letter dated December 17, 1998. Bearing in mind that this was the second request that Mr. Robinson was making. The First request was on October 21, 1998. This is a clear indication of the lack of seriousness taken by PC World regarding the Ministry's decision.
The Act was amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8, ("Bill 31") effective June 26, 1998. Section 48(1) of Bill 31 provides that the Act, as it read immediately before Bill 31 came into force, continued to apply to applications for review made before Bill 31 came into force. As both the Order and the application were made after Bill 31 came into force, the provisions of the Act, as amended by Bill 31, are applicable. Thus, Mr. Csikos' agent's reference to an application not being made to the Director in a timely way and to section 68(2.2) of the Act requiring a failure of natural justice before extending the time within which an application may be made are simply irrelevant to this proceeding.
Section 68(3)(a) of the Act provides:
"An application for a 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."
The Board may extend the time for making an application for review under section 68(4) if it considers it appropriate to do so. Section 68(4) of the Act provides:
"Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so."
The Order was dated October 13, 1998. The last day for making a timely application for review was November 27, 1998. The applicant alleges that during the period following delivery of the Order it was engaged in discussions with counsel for Mr. Csikos in an attempt to settle the matter. I note here that Mr. Csikos' agent (not counsel) denies ever having had a conversation with Mr. Bartkiw. The applicant's representative appears to be its Director of Human Resources, Mario Chartrand. It is not clear whether Mr. Csikos' agent denies there having been any settlement discussion at all. I obviously am not in a position to resolve that conflict in this decision, but am prepared to assume that Mr. Csikos' agent was not involved in settlement discussions with the applicant. Nevertheless, it is clear that the applicant had been involved in some settlement attempts as the Employment Standards Officer, in his transmittal letter to the Board stated: "No settlement has been worked out between the parties to this point, and my understanding is that no negotiations are taking place at this time." I am satisfied that had there been no settlement discussions between the affected parties in November or December, the Officer would have forwarded the application material to the Board well before February 5, 1999 (the date of the Officer's transmittal letter which was received by the Board on February 10, 1999).
Furthermore, the applicant's representative has set out the other circumstances that affected the applicant's ability to make a timely application. Most importantly, the Board is of the view that the parties should be encouraged to try and resolve their differences through negotiations whenever possible. As item 6 of the applicant's letter indicates, the parties understood that the applicant was reserving the right to make an application for review if the parties were unable to reach a settlement.
As for the "violation of the natural justice" for Mr. Csikos alleged by his agent, the points raised by his agent relate to the merits of the application. If the application is ultimately denied, Mr. Csikos will recover the amount found by the Officer to be owing to Mr. Csikos with interest. I am not persuaded that there would be any prejudice to Mr. Csikos by the Board extending the time for the making of the application.
The Board, based on the submissions of the applicant and having regard to the representations made by the agent of Mr. Csikos, considers it appropriate to extend the time to make the application for review of the Order to February 10, 1999, the date upon which the application was made to the Board.
This matter is referred to the Registrar.
This panel of the Board is not seized with this matter.