2709-99-ES Malette Construction, Applicant v. Nenad Vreca and Ministry of Labour, Responding Parties.

BEFORE: M. A. Nairn, Vice‑Chair.

DECISION OF THE BOARD; January 6, 2000

1. This is an application brought by the employer pursuant to section 68 of the Employment Standards Act (the "ESA") for a review of Order to Pay #49707. That Order issued on August 27, 1999. Following receipt of the Order the employer forwarded a request for review to the Board. However that request was not filed on the proper form and it was delivered by facsimile transmission, a method of delivery that the Board's rules did not allow.

2. The Board has no record of when the original request was filed and therefore no information as to whether the improperly filed material was otherwise timely. Any application for review was due to be filed by October 11, 1999. The Registrar did return the applicant's material on October 25, 1999 advising that it did not comply with the rules. A payment of the monies owing pursuant to the Order to Pay was made to the Director in trust on October 18, 1999. That payment was seven days late.

3. Subsequently it appears that a member of the Board's staff contacted the applicant's counsel in December 1999. As a result, counsel filed a proper application, which the Board received on December 9, 1999. The application is dated October 27, 1999 and appears not to have been forwarded in a timely way. In response, the Registrar forwarded a letter to the applicant dated December 29, 1999 advising the applicant that it appeared the application was untimely and requesting submissions. A letter dated January 3, 2000 from applicant's counsel is before me.

4. There is no doubt that the application is untimely. The ESA provides that an application for review must be filed within 45 calendar days of the date of the Order (although I note that the Order stipulates the time frame as within 45 days of the date of delivery or service of the Order). That deadline was October 11, 1999. The Board returned the applicant's material on October 25, 1999. Had the applicant promptly responded by filing a proper application, the Board may well have been inclined to extend the time limits for filing. However, it appears that absent any communication from the Board's staff, the application would not have been filed on December 9, 1999 either.

5. Counsel for the applicant asserts that a member of the Registrar's office granted the applicant an extension until December 10, 1999 to have the material filed in the proper format. With respect, a member of the staff has no authority to grant any statutory extension. That is a matter for the Board. The staff does have administrative responsibility to ensure matters move through the case management system.

6. Similarly, although the applicant characterizes the Registrar's letter of October 25, 1999 as sympathetic to the fact that parties were adjusting to the new rules in effect as of August 1, 1999, that letter makes it clear that the applicant "must" comply with the rules, and it gives or suggests no allowance against the statutory time limit for filing. Finally as noted above, and contrary to the applicant's assertion, the monies were not paid into trust in a timely way.

7. There is a prejudice in the circumstances. It is one of delay. The filing on December 9, 1999 is a further 45 days from the date of the Registrar's letter of October 25, 1999 and over 100 days from the original Order to Pay. Balancing the interests of the employer in being able to file a proper appeal and the interests of the employee in having the matter finally dealt with, and in light of the 45 day time limit under the ESA, I am not persuaded that there are appropriate grounds to extend the time limits for filing in the circumstances of this case. Had the application been filed promptly in response to the October 25, 1999 letter from the Registrar, I may well have responded differently. However, the applicant cannot expect a further full 45-day period in which to file. Filing on December 9, 1999 is not a prompt response. To extend the time limits in these circumstances would ignore the intention of the statute that an application for review be filed promptly.

8. In the circumstances therefore, I decline to extend the time limits for the filing of this application for review. The application for review is hereby dismissed.

"M. A. Nairn"

for the Board