1232-00-ES University of Guelph, Applicant v. Janette Smiderle and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 61004894
BEFORE: John Morgan Lewis, Vice‑Chair.
DECISION OF THE BOARD; October 5, 2000
1. 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. 61004894.
2. By letter dated August 29, 2000, counsel for the applicant advised the Board that the claimant and the applicant had entered into minutes of settlement with respect to a complaint filed under the Human Rights Code, R.S.O. 1990, c. H. 19, as amended. The applicant advised that pursuant to the minutes of settlement, it was withdrawing its application and requested the return of the funds paid in trust to the Director of Employment Standards.
3. In its decision dated August 30, 2000, the Board sought submissions from all of the parties in this proceeding on whether they opposed the Board allowing the withdrawal of the application and directing all of the funds held in trust to be returned the applicant.
4. On September 6, 2000 counsel for the claimant confirmed with the Board that the claimant had withdrawn her complaint under the Act and supported the position of the applicant that the funds held in trust should be returned to the applicant. The Board also received submissions from counsel for the Ministry of Labour and the Employment Standards Officer which read as follows:
Further to your decision dated August 30, 2000, the Ministry of Labour takes the position that since the Applicant has withdrawn its appeal, the Board does not have the jurisdiction to refund the Administration fee to the applicant.
The applicant must request the return of the Administration Fee from the Director of Employment Standards, Mr. Richard Clarke or his designate, Mr. Stephen McDonald.
5. Counsel for the Ministry of Labour and the Employment Standards Officer made no reference to the return of the funds other than the administrative fee to the applicant. Accordingly, the Board assumes that the Ministry of Labour and the Employment Standards Officer consent to the Board issuing an order directing the Director to return the amount of $7,989.60 to the applicant with the administrative fee of $798.96 to remain with the Director of Employment Standards. In order to expedite the resolution of this matter, the Board is prepared to issue an interim order pursuant to section 16.1(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c, S. 22, as amended, directing the Director of Employment Standards to return to the applicant the sum of $7989.60, being the difference between the amount paid pursuant to the Order to Pay ($8,788.56) and the administrative fee of $798.96 since there does not appear to be any dispute over the applicant’s entitlement to repayment of that amount.
6. Counsel for the Ministry of Labour and the Employment Standards Officer asserts that the Board does not have jurisdiction to return the administrative fee to the applicant as it has withdrawn its application. The Board has previously determined that it does have the jurisdiction to order the return of the administrative fee when an applicant is successful in its appeal (see Continental Poultry Equipment Limited, [1999] OLRB Rep. Sept./Oct. 808). In the present case there is an interesting twist. The affected employee has abandoned any claim to payment through the Order to Pay and has consented to the funds presently held by the Director of Employment Standards being returned to the applicant. In other words, it would appear that the applicant has, in a practical sense, successfully appealed the Order to Pay.
7. Nevertheless, pursuant to section 68(8) of the Act, the Board is required to hold a hearing for the purpose of determining the issue in dispute unless all of the parties consent to the Board disposing the matter without a hearing. If the applicant wishes to pursue its claim for the return of the administrative fee it has paid to the Director in trust by having the Board conduct a hearing to determine whether to allow its application in its entirety, it must advise the Board within 15 days of the date of this decision that it wishes to have this matter listed for hearing. If no request is received by the Board to list this application for hearing within 15 days of the date of this decision, the parties will be deemed to have consented to the Board dismissing the application for review in respect of the administrative fees paid by the applicant to the Director.
Disposition
8. The Board, by way of an interim order, orders the Director to remit to the applicant as soon as practicable the sum of $7,989.60 together with accrued interest.
9. This panel of the Board remains seized with this matter.
“John Morgan Lewis”
for the Board