1489-00-ES Bruce Edmeades Sales Limited, Applicant v. Mark Lichti, Barry Nevin, Andrew Steepe and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 60007136
BEFORE: Harry Freedman, Vice‑Chair.
DECISION OF THE BOARD; September 20, 2000
1The Board, differently constituted, by decision in this matter dated August 23, 2000 noted that this application under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the "Act") for review of Order to Pay No. 55285 (referred to as an employer appeal of that order) was filed on August 21, 2000. Order to Pay No. 55285 is dated March 29, 2000. The Board, at paragraph 2 of that August 21, 2000 decision wrote:
On its face this application is therefore extremely untimely. The applicant has requested that the Board extend the time for filing based on its convoluted but largely unsubstantiated explanation for the delay. Since the applicant has made several references that implicate the Employment Standards Officer in the delay it seems appropriate in this instance to seek submissions from the Ministry of Labour prior to deciding the timeliness issue.
The Board then provided that the Ministry had 15 days from the date of the decision to file submissions. The Board concluded its decision by stating: “The Board will consider the matter further after the deadline for filing submissions has passed.”
2As of the date hereof, no submissions have been received from the Ministry of Labour.
3The solicitors for the applicant, in the application for review, expressly sought leave of the Board to bring this application despite having made the application well after the forty-five day time limit prescribed by section 68(3)(a) of the Act for filing an application for review of an order to pay had expired. Section 68(4) of the Act permits the Board to extend the time for applying for a review if the Board “considers it appropriate to do so”.
4The solicitors for the applicant assert that during the discussions with the Employment Standards Officer prior to the order to pay being issued they made it clear to the Officer that they were to be kept advised if an order was going to be issued despite their submissions to the Officer. They were not provided with a copy of Order to Pay No. 55285 when it was issued. Furthermore, they assert that applicant did not receive a copy of the Order to Pay despite it being sent to the applicant by certified mail. The person who had acknowledged receipt of the letter from the Ministry of Labour containing the Order to Pay was not an employee of the applicant, but rather was employed by a courier service that the applicant retained from time to time. Finally, the solicitors for the applicant assert that the first time the applicant learned about the existence of Order to Pay No. 55285 was when a collection agency made a third party demand on one of the applicant’s customers. The Ministry of Labour, although given the opportunity to make submissions with respect to the application to extend the time for making the application for review, has not filed any submissions in opposition to that application.
5The solicitors for the applicant had made it known to the Employment Standards Officer that they were acting on behalf of the applicant and that they had expected to be kept informed of the situation, and in particular, to be advised if the Officer was going to issue an order to pay. They also assert that the applicant had disputed the claim made by the employees and had made it known to the Employment Standards Officer that the applicant intended to appeal any order to pay that the Officer might issue. While the failure or refusal of the Officer to provide the applicant’s solicitors with a copy of the Order to Pay would not, in my view, cause the Board to extend the time for making an application since there is no obligation on an Employment Standards Officer to serve counsel with an order to pay, the applicant asserts that it did not actually receive the Order to Pay and was not even aware of its existence until a collection agency took steps to collect the amount set out in the Order to Pay. Furthermore, the application to extend the time for making the application for review is not opposed by the Ministry of Labour. I am satisfied that the applicant’s failure to receive the Order to Pay and its prompt action in making the application as soon as it became aware of the existence of the Order to Pay does provide a basis for the Board to consider it appropriate to extend the time for making the application for review. (See Condom Companion, unreported, Board File No. 2943-99-ES, decision dated February 8, 2000.) Furthermore, the Ministry of Labour not opposing the application to extend the time for making the application is an additional ground for considering it appropriate to grant the request to extend the time.
DISPOSITION
6The time for making the application for review of Order to Pay No. 55285 is hereby extended to August 21, 2000, the date on which this application for review was filed with the Board.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board