Ontario Labour Relations Board
File No.: 3575-99-ES Employment Practices Branch File No.: 32 005661
Between: Alwyn Martins c/o 1268906 Ontario Inc. o/a Truly Fine Chocolates, (Previously D’Avan Chocolatier), Applicant v. Marija Toracki and Ministry of Labour, Responding Parties.
Before: Gail Misra, Vice-Chair.
DECISION OF THE BOARD; May 18, 2000
1This is an employer request for review of Order to Pay No. 53176, which issued on January 24, 2000. The application is made pursuant to section 68 of the Employment Standards Act (the “Act”).
2The application for review was filed on March 6, 2000. Pursuant to section 68(3)(a) of the Act, an application must be filed within 45 days of the date of the Order issuing. In this case the 45th day was on March 9, 2000, so at that time the application appeared to be timely.
3However, the applicant never provided the Board with a copy of a receipt indicating that it had paid the amount of the Order into trust with the Director of Employment Standards. The Board was advised by the office of the Director of Employment Standards that by April 27, 2000 the applicant had still not paid the requisite money into trust. On April 28th the Board wrote to the applicant to inform it that the Board would not proceed with the review unless payment was made into trust, and that the failure to pay the monies into trust within the 45-day time limit rendered the application untimely. The applicant was given ten days to perfect its application and to explain why the deadline for the filing of the application should now be extended. To date the Board has not heard from the applicant.
4Section 68(7) of the Act states:
- (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.
DISPOSITION
5As is indicated above, the Act provides that an employer is not entitled to apply for review of an order to pay unless the wages and administrative costs required by the order have been paid into trust pending the outcome of the appeal. The Board has no discretion in this regard. The applicant has not paid the monies into trust and 45 days have elapsed since the Order to Pay issued. In these circumstances, the application does not meet the requirements of section 68(7) of the Act, and is therefore hereby dismissed.
“Gail Misra”
for the Board