Rainbow Concrete Ltd. v. Michael Dupuis and Ministry of Labour, 2000 CanLII 11227

Ontario Labour Relations Board

0652-98-ES Rainbow Concrete Ltd., Applicant v. Michael Dupuis and Ministry of Labour, Responding Parties.

0653-98-ES Rainbow Concrete Ltd., Applicant v. Gilbert Anishnabie, Douglas Chevrier, Bernie Commanda, Maurice Commanda, John D. Goulais, Brian Bellefeuille, Robert Commanda, Alex Lariviere, Paul Dupras, James Lariviere, Ronald Henry McLeod, Derrick Restoule, John Stevens, Pierre Beaulac, Diane Bednarz, Darryl Blay, Martin Champagne, Bruce Cunningham, William Foisey, Bruce Gardiner, Stephen Hanselman, Rick Heise, Glen Holliday, John Holmes, Andre Houle, Gilles Legault, Michel Martel, Craig McLeod, Michael Myers, Herbert Padley, Raymond Penasse, Brent Perkins, Carole Proulx, Kathy South and Mel Straus and Ministry of Labour, Responding Parties.

BEFORE: Gail Misra, Adjudicator/Referee.

DECISION OF THE BOARD; January 24, 2000

1These two applications are employer requests for review of Orders to Pay Nos. 48132 and 48134. The applications were originally made pursuant to section 68 of the Employment Standards Act (the “Act”) as it was in May 1998, prior to the amendments coming into effect on June 28, 1998. The Orders to Pay issued on March 27, 1998, and were apparently received by the applicant on March 30, 1998. Pursuant to section 68 of the Act, the last day upon which an application for review could have been made was 45 days from March 30, 1998. In this case that would have been on May 14, 1998.

2By a letter dated November 5, 1999, Rainbow Concrete Ltd. (“Rainbow Concrete”) has requested an extension of time for applying for review of the above-noted Orders to Pay on the bases that there has been a denial of natural justice or because it is appropriate to do so. Approximately twenty months have elapsed since the Orders were issued. By a cheque dated November 5, 1999 Rainbow Concrete has paid into trust with the Director of Employment Standards the amount of $85,190.42, which represents the total of the two Orders to Pay. Rainbow Concrete is seeking an extension of time for applying for review pursuant to section 68(2.2) of the Act as it was prior to June 1998. In the alternative, it is seeking an extension of time for applying for review of the Orders pursuant to section 68(4) of the Act as it now is.

3Rainbow Concrete seeks an extension for the filing of its applications on the following grounds. It claims that it has a strong case on the merits and that to deny it a hearing on the merits would be contrary to the principles of natural justice and “the spirit of the Act”. Further, it claims that the substantive merit of its applications is so great that that should override the allegedly procedural error that Rainbow Concrete made in the first instance. The applicant acknowledges that it made what it terms procedural errors in the filing of its applications, but argues that they were not so egregious as to disentitle Rainbow Concrete from being permitted to have its applications heard on the merits.

4Given the extraordinary history of these applications it is worth noting the chronology. The Orders to Pay in question were issued on March 27, 1998. The applications for review were received at the Board on May 12, 1998, however the amounts of the Orders were not paid into trust with the Director of Employment Standards, as required by the statute.

5Each Order to Pay indicated the following on the face of the Order:

APPLICATION FOR REVIEW OF ORDER

If an employer is dissatisfied with an order to pay, the employer may apply to have the order reviewed. To apply, the employer must forward payment of the amount ordered by the Director of Employment Standards, 400 University Avenue, 11th Floor, Toronto, Ontario, M7A 1T7. The Director will issue a proof of payment to the employer and the Ontario Labour Relations Board, and hold the monies in trust. The application for review, setting out the facts and reasons for the application, must be forwarded to The Registrar, Ontario Labour Relations Board, 400 University Avenue, 4th Floor, Toronto, Ontario, M7A 1V4 within 45 days of the date of delivery or service of this order. The Director or his/her delegate may, for special reasons, extend the 45-day period. The application will not be processed without proof of payment from the Director.

(Emphasis in original)

6Section 68(1), (2.1) and (2.2) of the Act as it then was provided as follows:

68. (1) A person who considers himself, herself or itself aggrieved by an order made under subsection 13.1 (14) or section 45, 48, 51, 56.2, 58.22 or 65 may apply for a review of the order by way of a hearing. An employer is entitled to apply upon paying the wages and administrative costs required by the order.

(2.1) An application for review must be made within 45 days after the date of delivery or service of the order.

(2.2) The Director may extend the time for applying for a review if the Director has not paid the compensation or wages under subsection 72 (2) and if the Director is of the opinion,

(a) that a denial of natural justice has occurred; or

(b) that it is appropriate to do so because of another proceeding which is in progress or is likely to be when the time for applying expires.

7By a letter dated May 11, 1998, counsel on behalf of Rainbow Concrete requested that the Director of Employment Standards accept an affidavit from the corporate solicitor for the applicant, instead of payment of the requisite monies into trust or an acceptable letter of credit. The reason the applicant gave for this request was that “The Applicant wishes to minimize the disruption of its operations and finances during the course of the review process”. The Labour Relations Board did not receive any indication from the Director of Employment Standards that he was satisfied with and accepted the lawyer’s affidavit. It was in these circumstances that the first decision on these files issued on May 21, 1998. The decision speaks for itself and will not be reproduced here. The decision made clear that payment of monies into trust was a requirement of the Act and that the applications simply did not meet that statutory requirement. The applications were therefore dismissed.

8The applicant did not pay the monies into trust and seek an extension for the filing of the time limit at that point. Instead, it made a reconsideration application on June 5, 1998 in which it argued that the Adjudicator/Referee had “summarily dismissed” the appeals. That application was given due consideration and the second decision in these appeals issued on June 24, 1998. The decision indicated that I did not believe that Adjudicator/Referees had any powers of reconsideration. However, it outlined why I was of the view that even if I had the power to reconsider my decision, I would not change my finding. The pertinent section of the Employment Standards Act of Ontario: Policy and Interpretation Manual was reviewed in the decision, and the decision outlined why a lawyer’s affidavit was neither equivalent to payment of monies into trust, nor to a letter of credit acceptable to the Director of Employment Standards.

9It would appear that on July 9, 1998 Rainbow Concrete applied directly to the Director of Employment Standards for an extension for the time for applying for review of the Orders to Pay. It had still not paid the monies into trust, provided an acceptable letter of credit, or made any other monetary arrangement with the Director of Employment Standards. In his reply to Rainbow Concrete dated July 21, 1998 the Director indicated that he had delegated his authority to grant extensions to the Ontario Labour Relations Board. He therefore sent the request on to the Board. On July 29, 1998 the Board’s solicitor responded to Rainbow Concrete’s request and advised that the Board was arguably functus on the question of the extension of time as no monies had been paid into trust and the Adjudicator/Referee had already dismissed the applications because they had not been made in accordance with the requirements of the Act.

10Rainbow still did not make any arrangements regarding payment of monies into trust. It did however seek judicial review of the two Adjudicator/Referee decisions and those made by the Ministry of Labour and the Director of Employment Standards. The judicial review application was not heard until September 28, 1999, when it was dismissed in its entirety.

11The Superior Court of Justice (Divisional Court) (Court File No. DV347/98 (Sudbury), September 28, 1999, Matlow, Desmarais, Cumming, JJ.) found that Rainbow Concrete had not in fact paid the amount stipulated by the Orders to Pay into trust as required by section 68, and had not therefore complied with the mandatory condition, which is a statutory pre-requisite to being entitled to a review. The Court went on to note that “the record establishes that the applicant and its solicitors knew that they were not submitting the required record [sic] of credit when the application for review was put forward to the Director”. The Court upheld the decision of May 21, 1998 and found that the application for review had been properly dismissed. The Court also upheld the June 24, 1998 decision that found that Adjudicator/Referees did not have the power of reconsideration.

12With respect to Rainbow’s assertion that the Director of Employment Standards should have advised the company that the lawyer’s affidavit was not acceptable, the Court found that the Director is under no duty to advise an applicant that it has not complied with the Act. The Court noted that the Act, the Policy Manual, and the Order to Pay form “are all express and clear in the obligations imposed upon Rainbow as pre-requisites to a statutory right of review”, that is, the obligation to pay the monies into trust.

13The Court noted however that since the applications were defective in that monies had not been paid into trust, it was arguable that no application for review had ever been made within the meaning of the Act. The Court may therefore have appeared to leave open to the applicant the option of renewing its appeal once it paid the required funds into trust. However, as will be seen from an excerpt of the Court’s decision that is reproduced below, the Court did not find in favour of the applicant on any ground. Nonetheless, it appears that it is this idea that Rainbow Concrete has now adopted and is therefore seeking to make applications for review again, this time making the requisite payment into trust. Having made the applications and the payment into trust, Rainbow Concrete is now asking the Adjudicator/Referee or the Board to grant it an extension of the time limits so that it can file its applications.

14These Orders and the original applications for review of the orders arose prior to the changes to the Employment Standards Act which were effective June 28, 1998. Prior to that date the Director of Employment Standards had the discretion to extend the time for applying for review. The grounds upon which this discretion could be exercised were statutorily limited to the following two bases: 1) if the Director was of the view that a denial of natural justice had occurred, or 2) that it was appropriate to do so because of another proceeding which was in progress or was likely to be when the limit for applying expired (see section 68(2.2) which has been excerpted above). At that time the Director had delegated his discretion to extend time limits to the Adjudicator/Referees who dealt with these applications. Now that Rainbow Concrete has perfected its applications by paying the monies into trust, it has argued that I have the authority to consider whether or not to extend the time limit for filing. I will address Rainbow Concrete’s argument in this regard first.

15There was no proceeding in progress or likely to be when the time for applying had not yet expired in these cases. Just prior to the expiry of the time to file a request for review of these Orders, the applicant provided the Director of Employment Standards with an affidavit instead of money or a letter of credit. There was no other proceeding going on at that time. The Orders had issued and Rainbow Concrete wanted to have those orders reviewed. Therefore, section 68(2.2)(b) is clearly not applicable and is not a ground upon which I can exercise my discretion.

16The only remaining ground upon which I could extend the time for filing is if a denial of natural justice has occurred. In MacMillan, Lawson, Dalgleish Insurance, (Board File No. 4766-97-ES, May 28, 1998, Surdykowski) an Adjudicator/Referee had occasion to consider what this clause means in the context of an employee’s request for review pursuant to section 67 of the Act, as it then was. Paragraph 11 of the decision states as follows:

11. The wording of the clause is somewhat curious. The words “that a denial of natural justice has occurred” could be interpreted to suggest the question: has a denial of natural justice occurred at any time with respect to the employee’s claim? However, I do not consider that to be the appropriate approach. The focus of section 67 is on the filing and the adjudication of employee applications for review. The merits of such an application are relevant only to the adjudication phase. They are not relevant to the filing process, and specifically not to any question of timeliness. Accordingly, the question to be asked is whether a denial of natural justice has occurred in the application for review process; that is, would denying the question [sic] for an extension of time result in the denial of natural justice? …

17In Oliverio E. Massimiliano (Board File No. 4572-97-ES, June 2, 1998, Surdykowski) the Adjudicator/Referee developed this analysis further in the context of an employer appeal under section 68 of the Act and said:

21. If it were otherwise, an employer could arguably seek and obtain an extension of time weeks, months or even years after an Order to Pay was made, notwithstanding a timely and proper service of the order, merely by alleging a denial of natural justice in the proceedings which led to the order. At the very least, it would open the door to delays in the final disposition of claims under the Employment Standards Act in a legislative scheme where speed is an important consideration, (although not the only objective).

18In my view the same analysis can be applied in the case before me. The question for me to decide is whether a denial of natural justice has occurred in the application for review process and therefore, would denying the request for an extension of time result in a denial of natural justice?

19The Court addressed this very question in the judicial review application (decision cited above) and found as follows:

At most, in terms of the relief requested by the applicant, this court could issue a mandamus order requiring the Ontario Labour Relations Board to render a final decision in the application for an extension of time under s. 68.2(2) [sic].

This court in the exercise of its discretion refuses to grant such relief to the applicant for the following reasons. The applicant, represented at all material times by knowledgeable solicitors has failed to provide a valid explanation as to why cash or a letter of credit was not submitted in connection with the application for review. The applicant in its request for re-consideration and in its later request for an extension of the ESA appeal period, submitted that the affidavit of Brian L. Montgomery could constitute a letter of credit when it was clearly not a letter of credit. Neither the applicant nor its solicitors discussed the letter of credit issue, or the EPB policy in that regard with the Director or the Ministry, but rather simply filed the affidavit shortly before the expiry of the appeal period.

The applicant’s solicitors admitted to advising the applicant that the solicitors “were uncertain whether the affidavit would be accepted by the Ministry”. Notwithstanding this, the affidavit was filed shortly before the expiry of the appeal period without consulting the Ministry. There is no suggestion in the record that the applicant was unable to pay the disputed funds to the Director in trust or provide a letter of credit.

The expeditious resolution of employees’ claims in accordance with the intent of the Act should not in the circumstances of this case be further delayed by granting any relief to the applicant. Instead of pursuing its position on the asserted merits, the applicant knowingly chose to adopt a continuing untenable position of not complying with a clear statutory regime for dealing with an appeal of an employer in the circumstances of the applicant.

As well, for the reasons given above, a denial of natural justice has not occurred such that s. 68.2(2) [sic] could be operative. We add that there is no evidence of any abuse of process in the procedures and process followed by any of the government officials acting in this matter pursuant to their mandate under the Act.

(emphasis added)

20Thus, the Court found that there has been no denial of natural justice such that section 68(2.2) should be exercised. Rainbow Concrete has nonetheless made the present request for an extension of the time limit claiming that there has been a denial of natural justice. In order to respond to the request and exercise the discretion accorded to me by the legislation and the Director’s delegation, I have considered the following in reaching my decision.

21I adopt the Court’s view that there has been no denial of natural justice up to this juncture. The only fact which must now be taken into consideration, and which the Court did not have to deal with, is that Rainbow Concrete has now paid the amount of the Orders to Pay into trust. In my view this does not change the situation at all. Rainbow Concrete knew or ought to have known from the day that it received the Orders to Pay that it needed to pay the monies into trust in order to make a request for review. It had legal counsel to advise it throughout the process, yet the money was not paid nor was there any discussion with the Director of Employment Standards about an acceptable letter of credit. Two decisions issued indicating that unless the money was paid into trust an Adjudicator/Referee could not even consider the issue of timeliness with respect to the applications. So, from at least as early as March 1998 (when the Ministry of Labour issued the Orders) and certainly from May 1998 (when the Adjudicator/Referee issued the first decision) this applicant has known what had to be done if it wanted to make an application for review.

22Rainbow Concrete ignored the statute, the directions on the Order to Pay regarding how to request review of an order, and the two earlier decisions. It then spent a further approximately 17 months in litigation seeking judicial review. It appears that it is these circumstances that Rainbow Concrete characterizes as a “procedural error”. Having got the Court’s decision in late September 1999, it finally decided to pay the money into trust and seek an extension of the time limit about 19 months after the expiry of the time for filing. This is simply far too long a delay and there are no compelling reasons to grant an extension. As the Court found, there had been no breach of natural justice in the way anyone had dealt with Rainbow Concrete’s applications in the appeal process. I respectfully agree with the Court’s finding and in any event, am bound by it. Rainbow Concrete is the author of its own misfortune as it refused to comply with the statute and I cannot accept that the company’s actions amount to a simple procedural error. In my view the applicant acted in an obstinate manner in order to attempt to avoid paying the money into trust.

23Rainbow Concrete requests that, in deciding whether to grant an extension or not, I should also consider that its application has considerable merit. In an evaluation of this kind for the purpose of an exercise of discretion to extend time limits, it is not appropriate to give much weight to the merits of a case. It would be difficult on a prima facie basis to determine the strength of a case simply with reference to the applicant’s version of events. In any event, appeals from Employment Standards Officer’s orders are hearings de novo so that whatever may have occurred in the course of an Officer’s investigation is immaterial. All that an applicant must do to get a new hearing before an Adjudicator/Referee, and now before the Board, is to file an application for review in a timely manner, and must pay the amount of the Order to Pay into trust. At this stage of a proceeding I am unable, simply on the basis of the applicant’s submissions, to come to any considered opinion about the merits of Rainbow Concrete’s application.

24Section 68(2.2) provides the Director of Employment Standards, or his delegate, with very limited grounds upon which to extend time limits. In the circumstances of this case, and for the reasons outlined above, I am of the opinion that there has been no denial of natural justice and I therefore decline to grant an extension.

25Rainbow Concrete has requested, in the alternative, that the Board consider these applications for review as being made under the current version of the Employment Standards Act as it is after the amendments made in June 1998. It appears that Rainbow Concrete is asking the Board, as an alternative argument, to consider these appeals as new applications. I note that the applicant did not file new applications in accordance with the Board’s current Rules of Procedure. As I am a Vice-Chair of the Board (and was at the time the original application was made) I have the jurisdiction to address the applicant’s alternate argument.

26Subsections 68(3), (4) and (7) of the Act now state:

68. (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;

(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67 (2).

(4) Subject to subsection (5), 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.

27As can be seen from the language of section 68(4) above, the Labour Relations Board now has a wider discretion than did the Director of Employment Standards (or his delegates) to grant an extension for applying for review in that it may do so “if it considers it appropriate to do so”. In its consideration of whether to grant an extension of the time for filing the Board has considered the length of the extension requested, the circumstances giving rise to the request and to the late filing of the application, and the relative prejudice to the other parties involved should an extension be granted. To date the Board has been prepared to grant an extension in cases where an applicant may be making an application which is untimely by days or weeks. It is only in extreme circumstances that an extension will be granted for a period of months.

28The chronology of these applications as it has been outlined above remains pertinent to the Board’s consideration of the request for an extension and has been considered in reaching a decision under section 68(4). My view, as expressed in paragraph 22 above, is also relevant to this consideration. In that paragraph I stated “Rainbow Concrete ignored the statute, the directions on the Order to Pay regarding how to request review of an order, and the two earlier decisions. It then spent a further approximately 17 months in litigation seeking judicial review. It appears that it is these circumstances that Rainbow Concrete characterizes as a “procedural error”. Having got the Court’s decision in late September 1999, it finally decided to pay the money into trust and seek an extension of the time limit about 19 months after the expiry of the time for filing. This is simply far too long a delay …”. The delay in this instance is far greater than the Board has had to consider in the past, and as can be seen from the chronology, is entirely of the applicant’s making. There are no extenuating circumstances that caused Rainbow Concrete to be incapable of complying with the Act and making an application in a timely manner.

29Meanwhile, while Rainbow Concrete has been engaged in the process which has been outlined above, the employees who should have been the recipients of the Orders have been left waiting and without remedy. They neither got the money ordered, nor did they know whether a valid appeal was pending resolution. One of the objects of the Employment Standards Act is to ensure that workers are protected by minimum labour standards. The Act is designed to ensure that complaints by employees are dealt with as quickly as possible, and that if any party is unhappy with the decision made, that an opportunity is provided to appeal that decision. However, in order to ensure speedy resolution of problems, the Act requires an aggrieved party to make its appeal within 45 days of the decision issuing. There are good and sound policy reasons for this time limit. Individual employees and employers need to know the answer to a complaint, and need to be assured that once the deadline for appealing has passed, that there will be no further questions raised. This permits the parties to carry on with their respective lives and businesses.

30In the case before me the employees affected by the Orders have waited for 21 months since the Orders issued. They have been left in limbo for over 19 months while the employer has exhausted all of its avenues of recourse. Now, even after the Divisional Court has found against it, Rainbow Concrete has decided to go back to the beginning and do what it avoided doing in the first place. It wishes to pursue an appeal, even after the Court said that “the expeditious resolution of employees’ claims in accordance with the intent of the Act should not in the circumstances of this case be further delayed by granting any relief to the applicant.”

31The delay in this case is far too long and without reasonable explanation for me to exercise my discretion to extend the time for filing of appeals. No employment related purpose is served by an extension in the circumstances of this case and it would be inappropriate to do so. Certainly, as noted earlier, no denial of natural justice has occurred vis a vis Rainbow Concrete in the application for review process, but the employees in question have been severely prejudiced by Rainbow Concrete’s actions for far too long already. For all of the above reasons the Board declines to exercise its discretion pursuant to section 68(4) of the Act to extend the time for filing these applications for review.

DISPOSITION

32The request for extension of the time for filing of these applications is denied. The applications are therefore dismissed.