Ross D. McBride as a Director of ASW Systems Inc. v. Douglas L. Critch and Ministry of Labour
File No.: 1338-97-ES Date: January 7, 2000 Ontario Labour Relations Board
Applicant: Ross D. McBride as a Director of ASW Systems Inc. Responding Parties: Douglas L. Critch and Ministry of Labour
Before: Bram Herlich, Vice-Chair.
Appearances: Ross McBride on his own behalf; K. Livingstone and Mark Shurvin for the Ministry of Labour; Douglas L. Critch and Ed Froome on his own behalf.
DECISION OF THE BOARD; January 7, 2000
On January 11, 1996, Order to Pay No. 28472 was issued against ASW Systems Inc. (the “company”). This order pertained to amounts the E.S.O. had found owing by the company in respect of 10 different employees. The total amount the company was ordered to pay (including 10% by way of administration costs) was $77,180.48.
Further to that order to pay, two separate subsequent orders to pay were issued against Ross MacBride, the applicant in this case and against Michael Blacklock. Both men are or were, at the material times, directors of the company. The orders to pay were for identical amounts of $48,470.53.
The present decision concerns Mr. McBride’s application to review the order to pay issued against him (Order to Pay No. D01713 dated February 10, 1997).
From the outset Mr. McBride indicated that he did not dispute or challenge the propriety or quantum of the order to pay issued against him in respect of 5 out of the 10 affected employees. As matters progressed it emerged that Mr. McBride did not dispute the order in respect of a further three employees. Thus, it was only necessary for us to consider the specific circumstances of the two remaining employees.
The order to pay includes an amount of $1,039.99 found to have been owing to D. Aguirre. Mr. McBride disputes the propriety of that amount. Mr. Aguirre, although provided with notice of the proceedings, did not appear or participate. After having had the opportunity to review certain documentation provided by Mr. McBride, counsel for the Ministry indicated that it would not dispute Mr. McBride’s claim that the amount attributed to Mr. Aguirre’s claim ought to have been $473.00 in lieu of the $1,039.99 assessed by the officer.
The entitlement of Mr. Critch, however, or rather the monetary portion attributed to his claim was the subject of considerable dispute. The original order to pay issued against the company included $21,165.54 said to be owing to Mr. Critch. That entitlement resulted in liability being assessed against Mr. McBride (and Mr. Blacklock) in the amount of $12,882.06. Mr. McBride does not dispute his liability as a director. He does, however, assert that the amount owing to be $4,910.00 rather than the amount assessed.
Mr. McBride did not dispute that from approximately December 2, 1994 to February 1995, Mr. Critch was not paid at all in respect of 5 pay periods plus 5 days. Neither did he dispute that the figure arrived at in the order to pay accurately reflects what Mr. Critch’s regular earnings would have been for the period.
Mr. McBride asserts, however, that amount ought to be pro-rated. Two distinct but overlapping rationales were presented for this proposed diminution of entitlement.
First, during the period in question Mr. Critch worked substantial portions, if not all, of his time from home. It is asserted that he therefore could not have worked all of the hours claimed, since he was also responsible, at least during portions of the time he was home, for looking after four young children.
Mr. McBride also adverted to Mr. Critch’s involvement in certain entrepreneurial sales enterprises which, it was alleged, ate significantly into the company’s work hours. This state of affairs is said to have existed, in varying degrees, from August 1994 until February 1995.
Either or both of these theories are said to warrant the reduction advocated by Mr. McBride.
Having heard the evidence of the parties, I am unable to accept Mr. McBride’s urgings.
A number of factors lead me to this conclusion.
First and foremost and despite the fact that Mr. Critch was somewhat tentative about the precise work he had been doing and may have been equally less than forthcoming about his extra-curricular entrepreneurial activities, he asserted with vigour and conviction that in his weekly timesheets no claim was ever made for work which had not been performed.
In that regard, I note that these timesheets were filed with the company on a weekly basis and, despite the fact that Mr. McBride might have had more pressing concerns at the time, were never challenged by Mr. McBride or any company representative at the time.
Similarly, when Mr. Critch was laid off in February of 1995, his Record of Employment, prepared by the company and signed by Mr. MacBride indicates Mr. Critch’s insurable earnings to have been amounts consistent with the amount included in the order to pay.
I am left to conclude that, for reasons which may appear entirely supportable to him, Mr. MacBride is engaging in an exercise of revisionist self-interest.
In this regard, even if the allegations about the impact of Mr. Critch’s extra curricular activities were established, which they are not, the issuance of an order to pay in respect of monies owing for a particular period is not an opportunity for an employer or a director to point to some other time and events in order to engage in an after the fact effort at some kind of equitable adjustment.
Similarly, in respect of the impact of working at home, I am not persuaded that Mr. Critch’s evidence and the various company records which support it do not reflect the actual time worked.
Neither am I able to ignore Mr. MacBride’s candid acknowledgement that had things turned out differently (i.e. had the company’s fate unfolded in a fashion more to his liking) he would not have challenged Mr. Critch’s claim.
Accordingly, in all the circumstances, I am not persuaded that the amount of the order to pay in respect of Mr. Critch ought to be disturbed.
In the result the order to pay is hereby amended to reflect a net amount of $47,903.54 in lieu of $48, 470.53. In all other respects, this application is dismissed.
It may be useful, though it will undoubtedly provide him little comfort, to remind Mr. MacBride that the issues, difficulties and conflicts involving him, Mr. Blacklock, the company and others are obviously much larger and more significant than this decision can betray. We, however, have confined ourselves, as we must, to the limited issues arising out of Mr. MacBride’s application to review Order to Pay No. D01713
“Bram Herlich”
Adjudicator/Referee
This decision is issued under the administrative auspices of the Ontario Labour Relations Board, 505 University Avenue, 2nd Floor, Toronto, Ontario, M5G 2P1