Arimtec International Inc. v. Donna Burgess, Alexsandar Kosarac and Ministry of Labour
File No.: 3640-99-ES Employment Practices Branch File No.: 20034215 Date: April 3, 2000
Before: Inge M. Stamp, Vice-Chair.
Decision of the Board
This is an application by an employer for review of an Officer’s Order to Pay pursuant to section 68 of the Employment Standards Act (the “Act”). Order to Pay No. 58953 in the amount of $9,335.81 was issued on January 25, 2000. The employer filed an appeal within the 45-day appeal period but did not make the required payment of $9,335.81 to the Director in Trust, Employment Practices Branch as required by section 68(7) of the Act.
By letter dated March 16, 2000 counsel for the applicant employer requests the company be permitted to pay a lesser amount than the amount ordered or in the alternative that the amount of the order be payable in three installments.
The statute requires payment in full of the Order to Pay, or an irrevocable letter of credit acceptable to the Director of Employment Standards before the Board can proceed with the review (section 68(7)),
The Board is not the keeper of the funds, but must look to the Director to be satisfied that the monetary requirements have been met. Neither the Registrar nor a Vice-Chair at the Board has the authority to address issues surrounding the amount or the payment of the Order to Pay.
Payment arrangements made with the Director do not, in the normal course, concern the Board, particularly when the arrangements are satisfied within the 45-day appeal period.
When these arrangements exceed the 45-day appeal period, the Board will consider an extension of time only when full payment has been received by the Director of Employment Standards. Each application will be decided on a case by case basis.
If the Director has agreed or acquiesced to payment arrangements which exceed the 45-day appeal period, that is one factor the Board will take into consideration in determining whether or not to extend the time for filing.
The merits of the application for review will not, as a rule, influence the Board in determining whether or not to extend the time for filing the application.
In earlier correspondence to the Board, counsel for the applicant asserted that the requirement to remit the full amount of the Order to Pay might prevent the applicant from proceeding with the application, infringe the applicant's right to natural justice, and "tend to bring the OLRB into disrepute by preventing a party from addressing the merits of a decision purely for monetary reasons."
The Board is deeply troubled by an assertion that the enforcement of a statutory requirement could be said to bring its operations into disrepute. The Board is mandated to interpret the Act, and is bound by its provisions, including section 68(7) which prohibits the Board from proceeding with a review unless the applicant pays the amount required in the Order to Pay.
The Director of Employment Standards is directed to advise the Board of his position on the payment arrangements proposed by the applicant. Once full payment has been remitted to the Director, (or arrangements satisfactory to the Director have been made), and a receipt therefore has been issued by the Director, the Board will consider the request to extend the time for filing the application.
“Inge M. Stamp”
for the Board