Ubavka Doslo v. VISL Ontario Inc. and Ministry of Labour, 2000 CanLII 12901

Ubavka Doslo v. VISL Ontario Inc. and Ministry of Labour

1039-99-ES Ubavka Doslo, Applicant v. VISL Ontario Inc. and Ministry of Labour, Responding Parties.

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANACES: Ubavka Doslo and Jordanca Doslo for the applicant; no one appeared on behalf of VISL Ontario Inc.; Karima Chatur for the Ministry of Labour.

DECISION OF THE BOARD; February 14, 2000

1. This is an application brought under the Employment Standards Act as

amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c.8. for a review of an Employment Standards Officer’s (the “officer”) refusal to issue an order to pay the applicant wages, termination pay, overtime and vacation pay.

2. The hearing in this matter was scheduled for February 10, 2000, commencing at 9:30 a.m. As the responding party, VISL Ontario Inc. (the “company”) did not appear at that date and time, the Board stood down until 10:00 a.m. in the event the company was delayed. The company did not appear at 10:00 a.m. The Board noted that the file in this matter did not contain any returned envelope containing the Notice of Hearing that had been sent to the address given by the applicant as that of the company: 1650 Yonge Street, Toronto, Ontario M4T 2A2. The Board also noted that the file did not contain any request for adjournment by the company. Accordingly, the proceeding commenced.

3. The officer refused to issue an Order to Pay because it was contended by the officer that the application was filed beyond what was referred to as a “6 month statute of limitation”. Presumably, the officer was referring to section 82.3(1) of the Act, although it is not clear from the correspondence in which the officer refused to issue an Order to Pay.

4. At the outset, the Ministry of Labour pointed out that the evidence would show that the applicant’s claim was, on a balance of probabilities, filed in a timely fashion. The applicant agreed with that assertion. I indicated to the parties that I would hear all the evidence on the merits of the claim as well as evidence relating to the timeliness issue.

5. The applicant began her testimony. A document was submitted in evidence that appeared to be on the company’s letterhead, which contained the address listed above, but also indicated a suite number which had not been included in the address supplied by the applicant and to which the Notice of Hearing had been sent. Soon thereafter, the applicant filed a second document again appearing to contain the company’s letterhead, but the company address on that document (i.e. 1881 Yonge Street, Suite 600, Toronto, Ontario M4S 3C4) clearly differed from the address to which the Notice of Hearing had been sent. The Board raised the new address with the parties. The applicant indicated that the company had set up in new premises at 1881 Yonge Street by the date of the second document (January 29, 1998). Initially, the applicant indicated that the business at 1650 Yonge Street had closed, but then indicated that the real estate portion of the business had remained at the old premises.

6. The Board stood down for 10 minutes after receiving submissions from the parties concerning the notice issue. Upon resumption of the hearing, counsel for the Ministry of Labour informed the Board that during the break she had called the phone number of the company as set out in the applicant’s application, and had spoken to an individual identifying himself as William Mears, a principal of the company. Counsel advised that she inquired as to whether the company did business at 1650 Yonge Street and was told that it did not, that its business address was 1881 Yonge Street. When counsel informed the person answering the phone of the hearing in this matter, the person indicated that the company was unaware of any proceeding involving it and the applicant.

7. Having been provided this information, and without deciding whether in fact the company had or had not received notice, the Board was no longer reasonably satisfied that the company had notice of this proceeding. The Board terminated the hearing and indicated to the parties that a new date would be established after providing the company with notice of the application.

8. Counsel for the Ministry asked that this matter be expedited. Counsel also requested that the determination of the timeliness of the applicant’s initial claim filed with the Ministry of Labour be dealt with in this decision.

9. The Board is of the view that the company must have a reasonable period of time following receipt of the application to prepare its case. On the other hand, the applicant should not be further frustrated by undue delay. Accordingly, the hearing in this matter will re-commence on March 24, 2000.

10. As for the timeliness of the filing of the applicant’s claim, pursuant to section 82.3(1) of the Act, it would not be appropriate for this panel of the Board to make a determination of that issue, as to do so would deprive the company of making any submissions on the point. The panel hearing the matter on March 24, 2000 will deal with all issues and evidence afresh.