2531-99-ES Ison T. H. Auto Sales Inc., Applicant v. Adolf Astl and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 30 013340
BEFORE: Caroline Rowan, Vice-Chair.
APPEARANCES: J. Wenus for the applicant; Adolf Astl for himself; Heidi Ann Lazar-Meyn for the Ministry.
DECISION OF THE BOARD; June 30, 2000
This is an application for review under section 68 of the Employment Standards Act, RSO, 1990 ch E-14 of an Order to Pay in the amount of $2,195.53 in respect of outstanding wages found to be owing to the claimant, Adolf Astl (the “claimant”). The application was brought by Ison T. H. Auto Sales Inc. (the “applicant”), the claimant’s former employer.
This application was scheduled for hearing before the Board at 9:30 a.m. on Friday, June 9, 2000. At that time, a representative of the applicant, Mr. J. Wenus of Stone & Wenus, Barrister, Solicitors, Notaries, attended at the hearing on his own to seek an adjournment of the hearing date scheduled in this matter. The Board convened the hearing at approximately 10:00 a.m. and heard each of the parties’ submissions concerning the applicant’s request for an adjournment.
Mr. Wenus began by explaining that the applicant needed an adjournment of the hearing date because Mr. Stone, another lawyer from his office who has carriage of this matter, accepted a retainer on another matter scheduled for the same day. Mr. Wenus noted that his client has paid the monies in issue into trust and as such there would be no prejudice to the claimant if an adjournment were granted.
By way of background, Mr. Wenus advised that the applicant had sought the claimant’s consent to an adjournment of the hearing scheduled for June 9, 2000 by letter dated March 29, 2000. The claimant refused to provide his consent and so advised the applicant by letter dated April 17, 2000. Mr. Stone had however received a copy of a letter dated April 12, 2000 addressed to the Registrar of the Ontario Labour Relations Board from the Ministry of the Attorney General’s office indicating the Ministry’s consent to an adjournment.
Subsequently, Mr. Stone wrote to the Board on or about April 18, 2000, requesting that an adjournment be granted on the basis that it “is vital to our client because of personal and corporate reasons”. No further explanation was provided as to the reasons for the applicant’s request for an adjournment at that time. By decision dated April 25, 2000, the Board denied the applicant’s request as follows:
This is an application by an employer under section 68 of the Employment Standards Act, RSO, 1990 ch E-14. The Board has received a request from counsel for the applicant (“Ison”) for an adjournment of the hearing set in this matter for June 9, 2000. The request asserts that Ison is entitled to such an adjournment as of right. It is not. The Board will grant an adjournment where all parties have consented (the employee in this application has refused) or where there are good and substantial reasons for the request. No reason of any sort is asserted in Ison’s request. The request for an adjournment as it is presently framed, is denied. This hearing will proceed as scheduled on June 9, 2000.
The applicant did not reinstate its request for an adjournment until the scheduled hearing date on June 9, 2000.
At that time, Mr. Wenus explained that Mr. Stone had relied to his detriment on the Ministry’s correspondence dated April 12, 2000 when he accepted a retainer on another matter scheduled for June 9, 2000. Mr. Wenus could not, however, explain to the Board why Mr. Stone’s initial request for an adjournment set out in his correspondence dated April 18, 2000 simply stated that an adjournment “is vital to our client because of personal and corporate reasons”. The Board notes that there is no suggestion in Mr. Stone’s correspondence that the adjournment is required because of counsel’s unavailability. Although Mr. Wenus initially indicated that he believed that representatives of the applicant were also involved in a separate litigation matter (not involving Mr. Stone), he ultimately conceded that he had no direct knowledge of why his client could not attend the hearing scheduled that day.
The Board also notes that Mr. Stone wrote to the Board requesting an adjournment on April 18, 2000 after he received the Ministry’s letter of consent dated April 12, 2000. It does not therefore appear that Mr. Stone was under any misapprehension that the Board’s consent to an adjournment was not necessary in view of the Ministry’s consent. In any event, the Board (differently constituted) made it abundantly clear in its decision dated April 25, 2000 that the hearing would proceed as scheduled on June 9, 2000. In this respect, the Board also notes that Mr. Wenus conceded that he could have attended to the matter on behalf of the applicant and in Mr. Stone’s stead, if he had prepared to do so in advance. However, because Mr. Stone had simply asked him to attend to the adjournment request, he stated that he was not in a position to proceed at that time.
At the hearing, the claimant maintained his objection to any adjournment of the matter on the basis that notice of the hearing had been provided to the parties back in February 2000, and that he had already waited a considerable amount of time for this matter to be heard. Although the Ministry did not withdraw its earlier consent to the applicant’s request for an adjournment, a representative of the Ministry noted that it had merely provided its consent back in April 2000 as one of the parties to the proceeding. Mr. Astl, one of the other parties, had never consented.
After considering the submissions of the parties, the Board ruled orally that it would not adjourn the hearing to another date based on the reasons given by the applicant and in view of the claimant’s refusal to provide his consent. The Board does not adjourn hearing dates for the convenience of counsel nor will it grant an adjournment where a party cites only unspecified business and personal reasons. (See for example, Nick Masney Hotel Ltd., [1968] OLRB Rep. Nov. 833, Dec.965; application for judicial review granted (1970), 1969 CanLII 394 (ON HCJ), 7 D.L.R. (3d) 119; appeal allowed (1970), 1970 CanLII 478 (ON CA), 13 D.L.R. (3d) 289 (Ont. C.A.); Spider-Maple Lift Ltd., [1990] OLRB Rep. Jan. 81). The Board, however, advised orally that it would be prepared to grant the applicant an adjournment of the hearing for a few hours in order to allow Mr. Wenus time to secure his client’s attendance at the hearing and to prepare to proceed. The Board then adjourned the hearing briefly so that Mr. Wenus could call his client to obtain instructions. Mr. Wenus returned shortly thereafter and advised the Board that no useful purpose would be served if the hearing were adjourned to a time later that day as his client was not available to attend that day in any event.
As the applicant did not call any evidence or make any submissions on the merits of the application, the Board advised orally that the application would be dismissed and that the Order to Pay would be affirmed.
DISPOSITION
- Having regard to the foregoing, the Order to Pay is hereby affirmed. The Director is required to pay out the monies being held in trust, together with any interest accrued thereon, to Mr. Astl, as soon as practicable.
“Caroline Rowan”
for the Board