2041-99-ES Governors’ Inn, Applicant v. Whitfield Small and Ministry of Labour, Responding Parties.
BEFORE: Gail Misra, Vice-Chair
DECISION OF THE BOARD; January 24, 2000
This is an employer request for review of Order to Pay No. 52035. The application is made pursuant to section 68 of the Employment Standards Act (the “Act”).
The Order to Pay, in the amount of $786.00, issued on August 16, 1999. This application for review was received at the Board on October 18, 1999. Pursuant to section 68(3) an application for review of an order must be made within 45 days after the date of the order. In this case the 45th day was on September 30, 1999 so it would therefore appear that the application might be untimely.
However, the Board notes that the applicant paid $607.56 into trust with the Director of Employment Standards on September 23, 1999, and the receipt issued indicates that it was for an “appeal payment”. The payment made into trust is not what the Order to Pay required and is short by $178.44. There is a letter dated September 20, 1999 from the applicant seeking appeal. It is unclear from the material before the Board whether the applicant gave the Ministry of Labour that letter indicating a wish to appeal at the same time as the money was paid into trust. For the present purposes I am prepared to accept that the applicant did file both the money and the letter in a timely manner and that the application may therefore be viewed as timely.
The problem with this application is that the applicant has not made the requisite payment into trust as required by section 68(7) of the Act. By a letter dated December 24, 1999 the Board asked the applicant to explain why there was a difference between the amount of the Order to Pay and the amount submitted to the Director. The Board requested that the applicant respond by January 13, 2000, to indicate if it had withheld statutory deductions before paying the money into trust, and requested an accounting of those deductions. The applicant was advised that the application would be treated as incomplete and would not be processed further unless the information was provided. To date the Board has received nothing further from the applicant.
Section 68(7) of the Act states as follows:
- (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
- The Board does not have the discretion to waive the payment into trust of the amount of the Order to Pay. It cannot proceed with an application for review if the requisite payment is not made. In this case the applicant has not paid the amount of the Order to Pay into trust, and has not explained why the payment made is short of what it should be. The time limit for filing the money has long since passed. In these circumstances the Board cannot proceed further with the review and it is therefore hereby dismissed.
“Gail Misra”
for the Board