1823-99-ES Idlewood Inn, Applicant v. Tom McIlwaine and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 33001022
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; March 9, 2000
1This is an application to review an Order to Pay pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the ”Act”). The Order to Pay was issued on July 23, 1999. On September 7, 1999, the applicant purported to review the Order to Pay by submitting correspondence setting out the grounds for its appeal and by submitting payment to the Director of Employment Standards in the amount stipulated in the Order to Pay. The applicant delivered these materials to the office of the Ministry of Labour located at 400 University Avenue in Toronto rather than to the Board, located at 505 University Avenue. The Board notes that the Order to Pay states, on its face, that an application for review is to be made with the Board at 400 University Avenue, which until December 31, 1998 was the address of the Board.
2The Board received the application on September 14, 1999. The Board did not process the application at that time as it had not been filed on the correct form and therefore was not in compliance with the Board’s Rules of Procedures. The Registrar of the Board advised the applicant by letter dated September 15, 1999 that the application had not been properly submitted and provided a copy of the Board’s Rules of Procedures, a copy of the correct application form and a copy of Information Bulletin No. 23 – Applications for Review under the Employment Standards Act. The applicant filed an application on the correct form with the Board on September 23, 1999.
3By way of correspondence dated October 20, 1999, the Registrar advised the applicant that the application appeared to be untimely. The Registrar further advised that if an extension was requested for the filing of the application, the applicant should set out why an extension of time for the filing of the application ought to be granted. The applicant responded to the Board on October 25, 1999 and advised that the applicant was under the impression that it had 45 working days to file its application. In its decision dated November 8, 1999, the Board rejected the applicant’s interpretation of the filing requirements for the application. The applicant filed a request for reconsideration of this decision based solely on its argument that it had 45 working days to file an application. The Board denied the reconsideration request by virtue of its decision dated December 6, 1999. The applicant has now filled an application for judicial review of the Board’s November 8, 1999 decision.
4Upon reviewing the file, the Board, on its own motion, hereby reconsiders it decision dated November 8, 1999 and finds the application to have been filed in a timely manner and directs the Registrar to process it in the normal course. The reasons for reconsidering the Board’s earlier decision are as follows.
5The Board’ s interpretation of the time limit for filing an application is correct. The reference in section 68 of the Act to 45 days is in reference to calendar days and not to working days. Although not addressed by the applicant, the Board finds that the date of application should be as of September 7, 1999; the date on which the applicant first filed its submission regarding its appeal. Although the applicant incorrectly filed those submissions to 400 University Avenue, it cannot be faulted for doing so as that was the address provided on the Order to Pay. As September 7, 1999 falls on the 45th day after the Order to Pay was issued, the application is timely in accordance with section 68(3) of the Act.
Disposition
6The Board finds that this application is timely and directs the Registrar to process it in the normal course.
“John Morgan Lewis”
for the Board