0577-00-ES David Costar, Applicant v. Frank French and Shirley French operating as Highway Variety, Anne-Marie MacMillan, Employment Standards Officer and Ministry of Labour, Responding Parties
Employment Practices Branch File No. 20034671
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; August 11, 2000
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 the decision of Employment Standards Officer Anne-Marie Macmillan refusing to issue an order. The letter of refusal is dated April 5, 2000. The applicant filed this application with the Board on May 23, 2000. The responding parties, by letter to the Registrar dated August 8, 2000, request that this application be dismissed as it was filed beyond the time stipulated in the Act for filing an application.
The responding parties point out that the information bulletin relating to applications for review states that an application must be received by the Board within forty-five calendar days of the date on the letter refusing to issue an order. The application was filed on May 23, 2000, 48 calendar days after the date of the letter from the Employment Standards Officer.
The forty-fifth day after the date of the letter refusing to issue the order was May 20, 2000. May 20, 2000 was a Saturday, a day on which the Board’s offices are closed. The first day after May 20 on which the Board’s offices were open was Tuesday May 23, 2000 (as Monday May 22 was the Victoria Day holiday) and that was the day that the application was filed. I note that the application was mailed by Canada Post Xpresspost on Friday May 19, 2000.
Section 28 (h) of the Interpretation Act, R.S.O. 1990, c. I. 11 provides:
In every Act, unless the contrary intention appears,
(h) where the time limited by an Act for a proceeding or for the doing of any thing under its provisions expires or falls upon a holiday, the time so limited extends to and the thing may be done on the day next following that is not a holiday;
While the Interpretation Act defines the term “holiday” as including Sunday and Victoria Day, but not Saturday, the Board’s offices were closed on Saturday so that the application could not have been filed on that day. In any event, section 68 (4) of the Act provides, in part:
“…the Board may extend the time for applying for a review if it considers it appropriate to do so.”
The Board’s offices were closed on the last day that a timely application for review could have been filed. I am therefore satisfied in this case that the application was timely pursuant to section 28(h) of the Interpretation Act (or if not timely, then the Board extends the time for applying for review pursuant to section 68 (4) of the Act) as it was filed with the Board on the first day the Board’s offices were open after the day on which the applicant could have filed a timely application had the Board’s offices been open.
DISPOSITION
The motion made by the responding parties to dismiss this application because it is untimely is dismissed. This matter is referred to the Labour Relations Officer assigned to meet with the parties to attempt to effect a settlement of this matter.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board