2452-99-ES Brindley Auction Service Ltd., Applicant v. Robert Robson and Ministry of Labour, Responding Parties.

BEFORE: Gail Misra, Vice-Chair.

DECISION OF THE BOARD; January 5, 2000

1This is an employer application for review of Order to Pay No. 49504. It is made pursuant to section 68 of the Employment Standards Act (the “Act”).

2The Order to Pay issued on September 26, 1997. The application for review was made on November 15, 1999, more than two years after the issuance of the Order. Section 68(3) of the Act requires that an application for review of an order be made within 45 days after the date of the order. Having regard to section 68(3) of the Act, this application is therefore on its face untimely.

3Pursuant to section 68(4) of the Act the Board has the discretion to extend the time for applying for review if it considers it appropriate to do so. In this instance the applicant has requested that the Board exercise its discretion to extend the time for filing of the application for review.

4According to counsel for the applicant, although the Order is dated September 26, 1997, the Employment Standards Officer held the order while he attempted to negotiate a settlement agreeable to both the employer, Brindley Auction Service Ltd., and the employee, Mr. Robson.

5According to correspondence dated July 5, 1999, the Officer advised the applicant that negotiations had been unsuccessful and that payment of the Order to Pay was now required. Therefore, in the Board’s view, the applicant should have known as of July 5, 1999 that it had to either pay the Order or request review of that Order within 45 days. The letter also indicated to the applicant that if payment were not made by July 22, 1999, a collection agency would be instructed to collect the entire amount of the Order. It appears that the employer paid the amount required to the collection agency on or about September 9, 1999. That money has been held in trust since that date.

6What is puzzling is that there was further correspondence from the Officer to the applicant dated September 22, 1999. In that letter it appears that the employer had resubmitted an offer of settlement, which the Officer noted was one that the employee had previously rejected. However, the Officer went on to state that “unless the Ontario Labour Relations Board advises that it has accepted a perfected Application to Review an Order to Pay under Section 68 of the Employment Standards Act by October 24, 1999” the Officer would proceed to distribute the monies held in trust. The application, as noted earlier, was not made until November 15, 1999.

7The employer argues that it should be permitted to file this late application because it was not aware that the Officer was enforcing the Order until after the 45-day appeal period had expired. In the Board’s view that is patently not the case. While it is apparent that the Officer did attempt to negotiate a settlement between the employer and employee after the Order to Pay had been issued in September 1997, by July 5, 1999 the Officer had advised the employer that the Order was going to be enforced.

8Even assuming, as the Officer appears to have done although the Board does not, that the date upon which the employer paid the amount of the Order to the collection agency was the beginning of the 45 day period in which an appeal may be made, the employer was advised that that later period would expire on October 24, 1999. Yet, the employer did not file its appeal within that time. It was not until almost three weeks later that the present application was filed. Further, there is no explanation offered by the employer for why the appeal was not made at any time between July 5 and October 24, 1999, a period of almost four months. After July 5, 1999, the Board cannot accept that the employer did not know that the Order was being enforced.

9The employee affected by this application has been waiting for over two years since the Order issued in his favour, and over three years since he left the employ of Brindley Auction Services Ltd., for the monies owed to him. It is unclear to the Board why, even after determining that an Order should issue in favour of the employee, the Employment Standards Officer made attempts for almost two years to negotiate an acceptable amount between the parties. However, what is clear is that by July 1999 the Officer was of the view that negotiations had reached a stalemate and he so advised the employer. Yet, rather than filing an appeal, the employer appears to have tried to buy more time by resubmitting to the Officer an offer which had already been rejected by the employee. Even after the Officer’s October 1999 deadline had passed, the employer had not filed an appeal.

DISPOSITION

10In these circumstances the Board can find no good reason to exercise its discretion to extend the deadline for filing this application. It is to be remembered that the date upon which the employer was informed that the Order was going to be reactivated was July 5, 1999. Therefore, the 45-day time limit should have run from that date and would have expired in late August 1999. Without the Board’s authority to do so, the Officer essentially gave the employer a further reprieve until October 24, 1999. This employer has had more time to file its appeal than do most parties seeking to appeal an Officer’s Order to Pay, but it failed to do so even by the very generous time limits offered to it by the Officer. The Board notes for the record that the discretion to extend time limits lies with the Board, and not with Employment Standards Officers. Nonetheless, had the employer filed its appeal within the time the Officer had noted, the Board would have been inclined to grant the extension for filing an appeal. However, it did not do so, and there is nothing before the Board to persuade it to grant an extension for the filing of an appeal in this case. This application is therefore dismissed.

“Gail Misra”

for the Board