Ontario Labour Relations Board
0238-00-ES Deborah Patricia Malcolm, Applicant v. Dan Baston et al, Martha Einarson, Employment Standards Officer and Ministry of Labour, 1178393 Ontario Inc. o/a A Bit of Nostalgia and 1259724 Ontario Inc. o/a Nostalgia Station, Responding Parties.
Employment Practices Branch File No. 22022128
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; May 11, 2000
1Employment Standards Officer Martha Einarson issued two Orders to Pay dated February 29, 2000; Order to Pay No. 55662 named 1178393 Ontario Inc. o/a A Bit of Nostalgia and 1259724 Ontario Inc. o/a Nostalgia Station as the employer responsible to pay the amount the Officer found was owed to their employees and Order to Pay No. D 01241 named Deborah Patricia Malcolm as a director of a corporation who, by virtue of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") is liable to pay the employees of the corporation the amount owed to them by the corporation. An application in Form A-69 purporting to be an application under section 68 of the Act for review of Order to Pay Nos. 55662 and D 01241 (the “Orders”) signed by Deborah Malcolm in which Deborah Malcolm is named as the only applicant was filed with the Board on April 19, 2000. The application indicates that it is being made by Ms. Malcolm as a director who wishes to object to the Order to Pay and by the employer who wishes to object to the Order to Pay, although only Ms. Malcolm and neither A Bit of Nostalgia nor Nostalgia Station are named as applicants.
2Ms. Malcolm included with her application the two Orders and a detailed written submission setting out the difficulties faced by her and her family in connection with the businesses in which she and her family were involved. Ms. Malcolm did not make any payment to the Director in Trust, Employment Practices Branch, Ministry of Labour. Indeed, Ms. Malcolm appears to have understood the obligation to make the payment required by an Order to Pay before an application for review can be made because she does state in her submissions accompanying the application form: “Because the appeal form says that monies have to be paid in trust before an appeal can be heard, and because we have absolutely no money or assets of any kind, I don’t know what the next step is.”
3The Orders make clear that the amount stipulated by the Orders must be paid in order to bring the application for review before the Board. Furthermore, the application form completed by Ms. Malcolm states: “You must either pay the amount ordered to the Director of Employment Standards, who will hold the money in trust and issue a receipt, or provide an irrevocable letter of credit acceptable to the Director.” The form also states: “Your application will not be processed without proof of payment from the Director of Employment Standards.”
4When the Registrar received the purported application in this matter, he requested the applicant, by letter dated April 26, 2000, to provide a copy of the receipt or proof of payment of the Orders. The Registrar’s letter goes on to state: “Until the receipt is provided the application will be treated as incomplete and will not be processed further. Unless the Board grants an extension of time for making the application in accordance with section 68 (4), payment made more than 45 days after the date of the Order will be untimely and the application will be dismissed.”
5The Orders were dated February 29, 2000. The last day for making a timely application for review was April 14, 2000. The application form was filed with the Board on April 19, 2000. The Registrar in a separate letter to Ms. Malcolm dated April 26, 2000 indicated that it appeared that the application she had filed was untimely and that she could seek an extension of time in which to file the application. That letter also again indicated to Ms. Malcolm that it was necessary to either make the payment to the Director in trust or provide the Director with an irrevocable letter of credit acceptable to the Director before the application would proceed further.
6Ms. Malcolm, by letter dated May 2, 2000 and received by the Board on May 9, 2000 sets out detailed submissions and provides ample justification for the application form being filed with the Board more than 45 days after the date of the Orders. She also states in that letter that making the required payment is impossible and requests an extension of time.
7An application for review of an order to pay issued under the Act must be made in accordance with the process established by section 68 of the Act. The provisions of section 68 of the Act that establish the application for review process state:
(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;
(4) …the Board may extend the time for applying for a review if it considers it appropriate to do so.
(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.
While the Board may extend the time within which an application for review may be made, section 68 (7) of the Act is quite clear. The Board “shall not proceed with the review” and an application for review “is not properly made” unless the applicant either pays the amount required by the order to pay to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.
8Although Ms. Malcolm had filed the proper form to make an application for review, she has not yet made the payment required by the Act in order for this application for review to proceed. She also states that it is impossible for her to do so. Ms. Malcolm seems to be of the view that the Board has the authority or discretion to waive the requirement imposed by section 68 (7) of the Act to pay to the Director the amount required by the Orders. There is nothing in the Act that confers that kind of authority on the Board. It is the statute that imposes that obligation on an employer or director who wishes to challenge an order to pay and the Board is prohibited by the statute from proceeding with an appliction for review until that obligation is met.
9Ms. Malcolm has made clear that she is unable to pay the amount required by the Orders, yet she seeks an extension of time. There is simply no basis for the Board to extend the time for making an application for review if the person making the application is unable either to pay the necessary amount to the Director in trust or arrange an irrevocable letter of credit acceptable to the Director. While the submissions made by Ms. Malcolm certainly indicate that there have been a number of unfortunate circumstances that have made it impossible for Ms. Malcolm to take the necessary steps to make a proper application for review of the Orders, the Act simply does not permit the Board to waive the obligation imposed on an applicant for review by section 68(7) of the Act to either remit the requisite payment or arrange a suitable letter of credit or to extend the time for making the application when the requisite payment has not been made.
10As Deborah Malcolm purported to file an application for review of the Orders without making the requisite payment or arranging the requisite letter of credit required by section 68(7) of the Act and as Ms. Malcolm has made it clear that it is impossible for her to do so, the Board is precluded from proceeding with the review she has requested.
Disposition
11This application is dismissed.
“Harry Freedman”
for the Board