Lawrence Binelli v. John Downey and Son Ltd. and Ministry of Labour
3029-98-ES Lawrence Binelli, Applicant v. John Downey and Son Ltd. and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43000135
BEFORE: Russell Goodfellow, Vice-Chair.
APPEARANCES: Mariola Bednarska for the applicant; no one appearing for the responding party employer; L. Eisenberg and M. Alchuk for the Ministry.
DECISION OF THE BOARD; March 24, 2000
1This is an employee application for review of a refusal by an Employment Standards Officer to issue an order to pay vacation pay. Despite having been provided with notice of hearing, the responding party employer did not attend. Accordingly, the hearing proceeded in the employer’s absence.
2The applicant’s employment was terminated on October 31, 1996. The reason for the termination was the employer’s bankruptcy. At the time of the termination the applicant was owed vacation pay in the amount of $3,532.72. The money was never paid.
3Pursuant to the legislation that was in force at the time, the applicant had two years within which to file his claim. However, during that period the legislation changed: the time limits were reduced to six months. Unfortunately, as events would have it, the applicant filed his claim just outside the six-month period. Applying the new provision (section 82.3(1) of the Employment Standards Act), the Officer refused to issue an order in the applicant’s favour.
4At the hearing, counsel for the applicant argued that the amendment adversely affected her client’s substantive right to recover vacation pay, and that the presumption against the retroactive application of statutes demanded that the provision not be applied to him. Ministry counsel argued, by contrast, that some transitional matters had been dealt with in section 82.3(6) but this was not one of them. The implication of this argument appeared to be that because some of the prejudicial effects of the statutory amendment had been ameliorated, others were intended to apply.
5As I indicated at the hearing, I am unable to accept this argument. The fact that the Legislature anticipated some, but not all, of the prejudicial effects of the legislation (and took steps to accommodate them) does not mean that others were meant to apply. Parties’ vested statutory entitlements cannot be taken away by implication.
6On that basis, I hereby substitute my finding for that of the Employment Standards Officer (to whom the retroactivity argument was not made) and order that the responding party employer pay the applicant vacation pay in the amount of $3,532.72, plus interest calculated in accordance with the Courts of Justice Act.
“Russell Goodfellow”
for the Board