[1999] OLRB REP. MAY/JUNE 395
2272-98-ES Hampton Canada Corporation and/or Windmill Point Restaurants Inc., Applicant v. Tyler Friesen, Therese Levesque, Ed Lefebvre, Catharine Bissonnette, Shelley Kuhn, Stefan Ratayczak and, Ministry of Labour, Responding Parties
Charter of Rights - Constitutional Law - Employment Standards Act - Practice and Procedure - Employer applying for review of order of Employment Standards Officer and asserting that statutory requirement to submit payment of amounts owed to Director of Employment Standards in trust unconstitutional - Board directing employer to file written submissions setting out basis for its challenge, including all material facts to be relied on - Employer filing Notice of Constitutional Question without statement of facts - Board concluding that employer's submissions unsatisfactory and dismissing constitutional challenge
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; May 20, 1999
This is an application for review of an Officer's Order to Pay, issued pursuant to the Employment Standards Act (the "Act"). The employees affected were, according to the Order to Pay, employed at Windmill Point Restaurant in Cornwall. The company declared bankruptcy. The Officer found that the employees were owed unpaid wages, termination pay and vacation pay. The Officer then determined that Hampton Canada Corporation was a related employer, within the meaning of section 12 of the Act, and determined Windmill Point Restaurant and Hampton Canada Corporation to be a single employer for the purposes of the Act. As a result, Windmill Point Restaurant and Hampton Canada Corporation were found jointly and severally liable for the wages, vacation pay and termination pay the Officer had found owing. The Order to Pay in the amount of $6,834.34, plus the statutory administrative fee was issued against Hampton Canada Corporation.
On October 1, 1998, counsel for Hampton Canada Corporation and Windmill Point Restaurant (the applicants) filed a timely application for review of the Officer's decision. But the applicants did not submit payment of the amounts in the Order to Pay, as required by section 68(7). The grounds for review are set out in a letter:
Windmill Point Restaurant Inc. and Hampton Canada Corporation are not related under section 12 of the Employment Standards Act. I am enclosing the Application for Review. It is my belief that section 68(1) of the Employment Standards Act contravened the Charter of Rights and is unconstitutional. Further section 50 of the said Act is also unconstitutional.
Nowhere in our law is there a requirement that someone has to pre-pay an administrative fine and/ or finding of liability in order to have a right of appeal.
The Sections are contrary to our constitutional process and if the Department proceeds further, I intend to launch a court challenge to strike down the Sections. It cannot be in our society that directors be sureties and liable. This will dissuade anyone from serving and furthering the well being of employees.
In a decision dated October 28, 1998, an Adjudicator/Referee directed that the matter be listed for hearing for the purpose of determining the issue of the constitutionality of the provisions of the Act requiring the payment of monies into trust before the application for review will be considered.
The Adjudicator/Referee also directed the applicants to file written submissions setting out the basis of its challenge, including all the material facts on which they intended to rely. The applicants were directed to provide notice to the Attorney General of Ontario and the Attorney General of Canada.
The applicants served and filed the Notice of Constitutional Question in a timely way. However, by letter dated November 28, 1998, both the Ministry of Labour (representing the Officer) and the Attorney General of Ontario raised a preliminary objection that the applicants' pleadings were insufficient and the application ought to be dismissed. The Ministry of Labour, in a letter dated March 3, 1999, asked that the preliminary objection be heard via a conference call, in advance of the date set for the oral hearing. Pursuant to that request, a conference call was convened on May 19, 1999. Counsel for the applicants, counsel for the Attorney General (also representing the Ministry of Labour) and counsel for Therese Levesque participated.
To be clear, in response to the Adjudicator/Referee's direction to the applicants to file submissions, all that the applicants prepared was the Notice of Constitutional Question. The "facts" set out are that an Order to Pay was issued; that the applicants sought review of it; that the Board requested proof of payment and the applicants challenged the requirement to pay as unconstitutional. The Notice continues:
The following is the legal basis for the constitutional question: Section 68(1) of the Employment Standards Act contravenes the Charter of Rights Section 15 as a denial of equality and equal protection before the law.
Kask v. Shimizu et. al (1986) 1986 CanLII 100 (AB QB), 28 D.L.R. (4th) 64
McDonald J: The requirement to post security for costs effectively denies the plaintiff her equal protection of the law and would negate the rule of law. The section offended section 15(1) of the Charter of Rights as it undermined the essential or underlying values of a free and democratic society.
Section 50 of the Employment Standards Act contravenes the Charter of Rights section 15 and applies to corporations as the corporation is raising the section as a defense to civil liability.
Re Energy Probe et. al and Attorney General of Canada: Ontario Hydro et. al. Intervenors, 1987 CanLII 4269 (ON HCJ), 1987 61 OR. (2d) 65 per Montgomery J.
In the hearing, counsel for the Attorney General reiterated the concerns set out in his November 26, 1998 letter. In his view, the applicants had failed to set out the basis of the challenge, and in particular had not set out what constitutional right they believed had been infringed. Further, the applicants had not set out any material facts that would allow the other parties to understand the context of the argument. In addition, the first case relied on by the applicants has been overruled, and the relevance of section 50 of the Employment Standards Act (which relates to the right of employees in retail establishments to refuse Sunday and holiday work) is not clear.
Counsel for the applicants submitted that the essence of his position is well known to all. He submits it is contrary to the Charter to require a small corporation to pay a fine or penalty before a hearing is convened. Further, he submits that it is contrary to the Charter to require corporate directors to pay unpaid wages when a company fails. In his view, there are no relevant facts, and the applicant has met its obligations to make appropriate submissions.
I conclude that the applicants have not made satisfactory submissions, and their challenge to the Act on a constitutional basis should be dismissed. There is a real danger in undermining the Charter of Rights and Freedoms and legitimate litigation with respect to it, if any party is permitted to "take a flyer" on a Charter argument. Of less, but still considerable importance, there is a significant risk of delay if specious Charter challenges are allowed to slow the progress of a proceeding.
This is such a case. The applicants raised the Charter in a somewhat off-handed way in the letter accompanying the application. The Board then required the applicants to more firmly ground their argument with relevant facts, and the detailed basis for its challenge. But the applicants did not meet those demands, again, making rather broad and unfocused allegations, which do not even minimally identify the Charter right which is alleged to have been infringed. And although the applicants were put on early notice that the Ministry of Labour and the Ministry of the Attorney General were unsatisfied with the pleadings, the applicants have shown no interest in amending their pleadings.
Neither sections 50 nor 68(1) appear to have any relevance to these proceedings. It is section 68(7) which provides that an application for review is not properly made unless the applicant makes a timely payment into trust of the monies required in the Order to Pay.
It is also worth noting that as I read the Order to Pay, it has been issued with respect to Hampton Canada Corporation, not against any of its corporate directors, so the applicants' concerns in that area are not relevant.
I am left to conclude that the applicants are not making a serious, thoughtful and legally grounded constitutional challenge. Consequently, I am dismissing the challenge. The hearing set for July 30, 1999 is hereby cancelled. Since there is no application that complies with section 68(7) before me, this matter will not proceed further. If the applicants wish to appeal on other grounds, and pay the monies into trust, they may seek an extension for filing their application, as contemplated in section 68(4).