735744 Ontario Ltd. o/a Walt’s Beanery With Taps v. Pitman
File No.: 3519-99-ES Employment Practices Branch File No.: 50008719
Applicant: 735744 Ontario Ltd. o/a Walt’s Beanery With Taps Responding Parties: Craig Pitman, Jason Van Tuyl, Eduardo Cicero, Dion MacConnell, Warren Farmer and Ministry of Labour
Before: Patrick Kelly, Vice‑Chair.
Appearances: No one appeared on behalf of the applicant; Craig Pitman and Jason Van Tuyl appeared on their own behalf; L. Eisenberg appeared on behalf of the Ministry of Labour
Decision of the Board: August 2, 2000
Decision
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended, for review of Order to Pay No. 50808 issued by an Employment Standards Officer.
The hearing in this matter was originally scheduled for July 26, 2000, commencing at 9:30 a.m.. On July 18, 2000, the hearing date was adjourned by the Deputy Registrar, and rescheduled for September 26, 2000, on the advice of the applicant that the claimant, Craig Pitman (“Pitman”), had agreed to the applicant’s adjournment request. On July 20, 2000 Pitman advised the Board that he had not agreed to an adjournment of the hearing, and consequently, the Board (differently constituted) issued an endorsement dated July 20, 2000, reconfirming the original July 26, 2000 hearing date. On July 25, 2000, the applicant wrote to the Board, advising that it would not be in attendance at the hearing due to lack of adequate notice. The applicant did not contest Pitman’s allegation that he had not agreed to the adjournment request.
On July 26, 2000, the panel of the Board assigned to this matter stood down until 10:00 a.m. in the event the applicant or its representative appeared to either participate in the hearing or make a motion to adjourn . The applicant did not appear at 10:00 a.m., and accordingly the Board commenced to deal with the matter.
The Ministry of Labour and Pitman moved that the applicant’s failure to appear should result in the dismissal of the application, on the basis that the applicant had not discharged its onus of proof, nor made an appearance to argue for the adjournment of the hearing. The Board heard evidence from Pitman concerning the circumstances surrounding the applicant’s previous request for an adjournment, and that evidence disclosed that, indeed, Pitman had never consented to the applicant’s request. Accordingly, the Board ordered that, given the absence of any person present to advance the applicant’s case or its request for adjournment of the hearing, the application was dismissed.
There appears to be a calculation error in the Order to Pay. In the Employment Standards Officer’s narrative report the calculation of the amounts owed to all the claimants in this matter was offset by $81.45, which was referred to as an “amount in trust for Jason Van Tuyl”, one of the claimants (referred to hereinafter as “Van Tuyl”) whom the Employment Standards Officer determined was entitled to $162.90 representing unauthorized deductions made by the applicant in respect of Van Tuyl’s wages. There is no other reference in the file to an amount in trust for Van Tuyl, no receipt appears to have been issued in that amount, nor is there any indication as to what the $81.45 represents, or whether it was intended to be deducted from the amount of $162.90 which would otherwise be payable to Van Tuyl pursuant to the Order to Pay. Indeed, the Officer’s letter to Van Tuyl advising him of the Order to Pay makes reference to the sum of $162.90 owing. In any event, there is a possibility, depending upon the characterization and treatment of the $81.45, that there are insufficient wages held by the Director in trust to satisfy all the claims, including the administration fee.
Before the Board directs the disposition of the wages paid by the applicant to the “Director in trust” in this matter, the Ministry of Labour is to file submissions concerning that disposition in light of what appears to be an error in the calculation upon which the Order to Pay was based. These submissions are to be provided to the Board, the applicant and the claimants, Pitman, Van Tuyl and Warren Farmer on or before August 8, 2000. To the extent the applicant and the claimants wish to file submissions in reply to those of the Ministry, they are directed to provide their submissions to the Board and the other parties on or before August 11, 2000. The Board will then consider all filed submissions and determine whether a final decision in this matter can then be issued.
I am seized to deal with the submissions of the parties.
Patrick Kelly”
for the Board