Accu-Tel Messages Centres Inc. v. Ken Pauze, J. Schofield, Employment Standards Officer and Ministry of Labour
1368-00-ES Accu-Tel Messages Centres Inc., Applicant v. Ken Pauze, J. Schofield, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 41008858
BEFORE: Harry Freedman, Vice‑Chair.
DECISION OF THE BOARD; November 27, 2000
This is an 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. 55737 (the “Order”) issued by Employment Standards Officer Jim Schofield dated June 19, 2000. The application was filed with the Board on August 4, 2000 after having been forwarded to the Board by the Ministry of Labour offices in Scarborough. The applicant apparently delivered the application material and cheque to the local office of the Ministry of Labour, rather than to the Board, on August 3, 2000, which was the last day that a timely application for review of the Order could be filed. Accompanying the application was a cheque payable to the Director in the amount of $416.32.
The Order required the applicant to pay a total of $2,459.00 comprised of gross wages of $2,235.45 and statutory administration costs of $223.55. Before the Board could proceed to consider this matter, the Ministry of Labour, by letter dated September 7, 2000 was directed to send the Board a copy of the Order and other related material. That information was forwarded to the Board by the Ministry of Labour on November 20, 2000 and was received the next day.
It appears from the material filed that the applicant has unilaterally determined that Mr. Schofield’s assessment was incorrect. In a letter accompanying the application material, the applicant states:
Please be advised that the “Order to Pay” was incorrect in the fact that Mr. Pauze did not make $6,738.64 as estimated in the assessment but $4,609.50 by the actual payroll record (copy of summary attached).
Therefore the gross amount of the assessment has been reduced by $85.17 and administration costs by $8.51 for a total reduction of $93.68. The sub-total was reduced from $2,459.00 to $2,365.31 les Statutory Deductions for C.P.P. and E.I. of $1,949.00 being the employee’s portion for 1998 and 1999. The next amount forwarded is $416.32.
The applicant is not permitted to recalculate the amount of the gross assessment made against it nor can it unilaterally determine the amount of the statutory administration costs. Finally, its calculation of statutory deductions is clearly incorrect since the amount the applicant deducted for C.P.P. and E.I. ($1949.00) is more than 80% of the gross assessment of wages that the applicant says should have been ordered by Mr. Schofield. Statutory deductions from an employee’s pay for C.P.P. and E.I. would not normally be more than approximately 7% of the employee’s earnings that are subject to the deduction.
While the applicant may make statutory deductions from the gross assessment of wages and pay the net amount in satisfaction of an order to pay, the amount of the statutory deductions must relate to the amount of the assessment contained in the order to pay, not some other amount that the applicant considers appropriate. Furthermore, it is clear that regardless of the amount deducted purportedly for C.P.P. and E.I., the applicant has not paid the Director the amount required by the Order.
Section 68(7) of the Act requires that an applicant seeking to review an order to pay must pay the Director the amount set out in the order before an application for review is properly made. Section 68 (7) states:
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 ….
Thus, it is clear that applicant has not properly made it application for review.
Although the applicant had filed the proper form to make an application for review, the applicant has not yet made the entire payment required by the Act in order for this application for review to proceed, since the applicant has failed to pay the amount set out in the Order. If the applicant does wish to proceed with its application, it must within 10 working days of the date of this decision pay to the Director in trust an additional $8.51 in respect of the amount by which it reduced the statutory administration costs it paid, an additional $85.17 being the difference between correct gross amount of wages as set out in the Order and the amount it paid the Director and either pay the Director the difference between the amount the applicant had deducted for C.P.P and E.I. and the correct amount for statutory deductions or provide the Board with a satisfactory explanation that the amount the applicant did deduct for statutory deductions for C.P.P and E.I was authorized and correct. The applicant, if it does wish to proceed with its application for review, must provide the Board with proof of the requisite payment and the explanation establishing that the amount withheld for statutory deductions was correct within 10 working days of the date of this decision.
Furthermore, since the time for making the application for review has now expired, the applicant must also request that the Board, pursuant to section 68(4) of the Act, extend the time for applying for review of the Order (as the review has not as yet been properly made because the entire amount of the Order was not paid) and set out the grounds for such an extension. If the payment is not made and proof of payment and explanation is not provided to the Board on or before December 12, 2000, this application will be dismissed. If the payment is made and proof of payment is provided to the Board together with the explanation for the amount of the statutory deductions and an extension for applying for review is sought by that date, the Board will determine at that time whether to extend the time for applying for review of the Order or dismiss the application.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board