Victoria Harbour Building Corporation v. Graham, 2000 CanLII 1638

Ontario Labour Relations Board

1114-00-ES Victoria Harbour Building Corporation, Applicant v. Donald R. Graham, Gilbert Berry, Stuart Berry and Steve Berry, C. A. Brule, Employment Standards Officer and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 43002393

BEFORE: Harry Freedman, Vice‑Chair.

DECISION OF THE BOARD; September 12, 2000

1. This is an application under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the “Act”) for review of Order to Pay No. 59003 dated May 4, 2000 issued by Employment Standards Officer C. A. Brule. The application for review (including the payment required by the Order to Pay) was filed with the Board on July 10, 2000, the date that the Board received the application in the mail from the applicant.

2. The Registrar of the Board, by letter dated August 17, 2000, advised the applicant that it appeared that the application had not been filed in a timely manner, that the time for applying for review was within 45 days of the date of the Order to Pay and that the Board may extend the time for applying for review. In addition, the letter also advised the applicant that the Act requires the payment of the amount set out in the Order to Pay before an application for review is properly made. The last paragraph of the Registrar’s letter stated:

If you believe that your application has been filed in a timely manner, or if you wish to seek an extension of time for applying for a review, you must advise the Board in writing within ten (10) days of the date of this letter, setting out, in detail, your reasons why the appeal should be considered timely and/or why an extension of time for filing ought to be granted.

3. The time for making a timely application for review of Order to Pay No. 59003 expired on June 19, 2000. Section 68 (3) (a) of the Act provides:

An application for a review must be made

(a) in the case of an application for a review of an order, within 45 days after the date of the order;

Although the Board has the discretion under section 68 (5) of the Act to extend the time for making an application, there must be some basis for the Board to consider it appropriate to do so. That was precisely what the Registrar advised the applicant in his letter of August 17, 2000.

4. The applicant, in an apparent response to the Registrar’s letter, sent a facsimile transmission to the Registrar on September 8, 2000 which was comprised of the first page of the Registrar’s letter to the applicant with a handwritten message stating: “Amount paid cheque stub attached”; a copy of a letter from the Ministry of Labour dated July 4, 2000 advising that collection procedures will be undertaken if no payment is made; a cheque stub and a copy of the application. The applicant did not provide any explanation as to why its application was made well after the time had expired for making the application nor did the applicant even request that the Board extend the time for making the application for review despite the Registrar’s letter inviting it to do so.

5. Under these circumstances, there is no proper basis upon which the Board could rely to consider it appropriate to extend the time for applying for review.