2040-99-ES 1085573 Ontario Inc. o/a Maaco Auto Painting & Bodyworks, Applicant v. David Running, Joe Murphy, Sandra Parker and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 22022070
BEFORE: Pamela A. Chapman, Vice-Chair.
APPEARANCES: No one appearing for the applicant; no one appearing for the claimants; Graine McGrath for the Ministry of Labour.
DECISION OF THE BOARD; June 7, 2000
1This is an application pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E-14 as amended (“the ESA”) for review of an Order to Pay in respect of a claim for wages and vacation pay.
2At the hearing scheduled for June 2, 2000 no one appeared on behalf of the parties other than counsel for the Ministry of Labour. It is clear from the correspondence in the file that at least the applicant was aware of the hearing date and location, and in his most recent letter to the Board, dated May 24, 2000, he suggests that he is unlikely to attend. The applicant has previously met with and had several telephone conversations with the Labour Relations Officer appointed to assist the parties, although no resolution of the dispute was achieved. The Board waited the customary 30 minutes, and when no one appeared proceeded to dispose of the application for review.
3The applicant has appealed Order to Pay No. 55651, issued against 1085573 Ontario Inc. operating as MAACO Auto Painting & Bodyworks, for unpaid wages and vacation pay. His application for review is based upon his claim that, while indisputably registered as a director of the company during the period in question, he had in fact sold the company to two other individuals who were operating it without his knowledge or consent in personnel matters. The company’s liability does not appear to be in dispute, but the applicant asserts that he should not be personally liable for the amounts awarded to the three claimants.
4As the applicant, and as the party seeking to establish that wages and vacation pay are not due, or at least not payable by him, Mr. Cline clearly has the onus to make out a case for a review of the order of the Employment Standards Officer. He has filed anecdotal evidence in written form, concerning the sale of the assets of the company by him to two other individuals, Kerry Scott and Dean Cameron, and also delivered to the Board a copy of a letter sent to him, as a director of 1085573 Ontario Inc., by the Canada Customs and Revenue Agency. This letter addresses the issue of unpaid source deductions, and suggests that the government is considering assessing Mr. Cline personally for arrears up to and including July, 1997.
5Mr. Cline asserts that this letter establishes that he should not be found responsible for any obligations of the company after that date. Even if I were to rely upon this letter in the absence of any oral evidence concerning its authenticity, and without hearing from its author, the letter does not in any event establish a legal foundation for a claim by the applicant that he should not be liable for payment of the Order to Pay issued against the company. The letter contains absolutely no explanation of the significance of the July 1997 date, and moreover does not even suggest that any source deductions are owed by the company for any later period, nor that Mr. Cline has for some reason been exempted for responsibility for any such arrears. It does, however, confirm that Mr. Cline was a director of the company.
6In the absence of any evidence to support a review of the Order to Pay issued by the Employment Standards Officer, the application for review is dismissed.
DISPOSITION
7The Application for Review is hereby dismissed. The Board therefore requests that the Director of the Employment Standards Branch distribute the monies held in trust, along with any accrued interest, to the claimants.
“Pamela A. Chapman”
for the Board