Rita Quon v. Ministry of Labour, 2000 CanLII 13426

Ontario Labour Relations Board

0599-98-ES Rita Quon, A Director of Giant Panda Buffet Restaurant, Applicant v. Ministry of Labour, Responding Party.

BEFORE: Russell Goodfellow, Adjudicator/Referee.

APPEARANCES: John S. Cliffe and Rita Quon for the applicant; Alicia Gordon-Fagan for the Ministry.

DECISION: August 10, 2000

1This is a Director’s appeal from an order to pay made by an Employment Standards Officer. The Officer found that eight employees of the employer of which the applicant was a Director were owed wages and/or vacation pay in the total amount of $1,906.78. The employer is bankrupt. Four of the eight employees were paid out of the former Wage Protection Fund. The other four did not file the necessary documents to obtain such payments. None of the employees attended at this hearing or at an earlier hearing date that had been set to deal with this matter.

2At the hearing, counsel for the Ministry noted that the Officer’s calculation appeared to be in error and that the combination of unpaid wages and vacation pay found owing to the eight employees totaled $2,578.93 rather than $1,906.78. The applicant accepted that such an error had been made. The applicant further agreed that the amounts found owing as unpaid wages had not been paid because the cheques provided to the employees had not been cashed before the employer’s bank accounts were “frozen”. Hence, the applicant conceded that she was liable for the amount of $859.96 as unpaid wages. The applicant testified, however, that all of the vacation pay found owing by the Officer had, in fact, been paid. The applicant produced cancelled cheques to support some, but not all, of such payments. The applicant testified that the employer’s records which would have substantiated the further payments were in the possession of her co-director and that both she and the Officer had been unable to secure them.

3As indicated, the employees did not attend the hearing and there was no contradictory evidence to that of the applicant. Nevertheless, counsel for the Ministry asserted that I should find that no such payments had been made in the absence of supporting documentation. Counsel referred to section 11 of the Employment Standards Act and a number of cases that have relied on the failure to keep records as a factor, occasionally a significant factor, in upholding an Officer’s decision.

4As I pointed out at the hearing the obligation to keep records is imposed on an “employer”, not a Director. Moreover, it seems to me that the real issue is one of credibility: that is, was I persuaded on a balance of probabilities – and having regard to the fact that not all of the records required to be kept under section 11 were not produced – that the applicant was telling the truth. Given the applicant’s demeanor on the witness stand, her forthright admission as to the fact that the amounts said to be owing as unpaid wages had not been paid, her ready agreement that the Officer appeared to have made an error in calculating the amounts owing, and the explanation offered as to why the documents were not available, I have concluded that the applicant was telling the truth and that there was no vacation pay owing.

5Accordingly, I hereby substitute an order to pay in the amount $859.96 (representing unpaid wages) for the order made by the Officer. Such payment must be made forthwith.