2497-96-ES The Regional Group of Companies Inc., Applicant v. Tom Quinn and Ministry of Labour, Responding Parties.
BEFORE: Laura Trachuk, Adjudicator/Referee.
DECISION OF THE BOARD; November 15, 2000
- Further to my decision of September 15, 2000, submissions have been received from the applicant and the Ministry of Labour. No submissions were received from Mr. Quinn. Correspondence was received from Mr. van Walraven on behalf of the claimants included in Order to Pay No. 32006.
Order to Pay No. 32006
- I first wish to address the issues raised by Mr. van Walraven. Mr. van Walraven asks that I proceed with Order to Pay No. 32006. However, there is no appeal with respect to that order. The Officer’s narrative report with respect to that Order to Pay states as follows:
An agreement has been reached between the Ministry and employer to issue two Orders to Pay. The first Order will be for a sample group of one former employee who has filed a claim and one current employee. The second Order will cover the remaining employees who have been assessed. It is anticipated that the first Order may be appealed and the second Order will be held in abeyance until the outcome of the appeal.
- Therefore it appears that the Order to Pay that applies to Mr. van Walraven and the other claimants except Mr. Quinn is being “held in abeyance”. There is therefore no current appeal of that Order and I have no jurisdiction with respect to it. It appears that it is the Ministry of Labour’s decision whether to seek to collect the monies owing in that Order to Pay and I am therefore forwarding Mr. van Walraven’s correspondence to the Ministry and the applicant as an attachment to this decision. As there has never been an appeal of Order to Pay 32006, it is not affected by the applicant’s claim that I should not proceed to hear the appeal with respect to Order to Pay No. 32005.
Jurisdiction to Proceed With the Appeal of Order to Pay No. 32005
This appeal had been heard previously by Adjudicator/Referee Sharon Laing. Ms. Laing subsequently resigned her position as a Vice-Chair of the Ontario Labour Relations Board in 1998. However, the Ontario Labour Relations Board, under whose auspices these applications have been heard since 1996, understood that she would be completing matters for which she had been selected as an Adjudicator/Referee. However, in August 2000, Ms. Laing returned this file to the Board indicating that she could not, or would not, issue a decision, thereby resigning from her assignment to this application for review. The Registrar therefore rescheduled the matter to be heard on September 25, 2000 before myself. The applicant sought an adjournment of that date which was not opposed by the other parties and it was granted. The applicant also questioned the jurisdiction of a different Adjudicator/Referee to rehear this matter and I sought submissions on that issue.
I have now considered the parties’ submissions and have concluded that I have the jurisdiction to hear this application. I have concluded that Ms. Laing, the original Adjudicator/Referee selected to hear the matter, lost her jurisdiction with respect to this application when she resigned from the assignment. The Registrar was required to select another Adjudicator/Referee with a valid appointment to hear the matter.
The applicant argues that I have no jurisdiction to proceed with this application as the original Adjudicator/Referee is seized of it. It asks the Ontario Labour Relations Board to bring “an application for mandamus” to the Superior Court of Justice to require the original Adjudicator/Referee to issue a decision. The Ministry of Labour queries whether an “order of mandamus” would be possible against an Adjudicator/Referee who has resigned. This Adjudicator/Referee has no authority to require the Ontario Labour Relations Board to do anything as it is not a party to this application. In any case, I do not consider it appropriate for the Ontario Labour Relations Board to apply for an order in the nature of mandamus against the original Adjudicator/Referee nor do I consider it appropriate to adjourn so that the applicant may decide whether to seek one because, as noted above, I find that Ms. Laing lost the jurisdiction to render a decision with respect to this matter when she resigned.
This Adjudicator/Referee was appointed by the Minister under section 60 and 60.1 of the Employment Standards Act (the “Act”) and then selected by the Registrar of the Ontario Labour Relations Board (acting pursuant to a delegation from the Director under section 61(2) of the Act) to hear this matter under section 68(3) of the applicable Act. There is nothing in that Act, however, which authorizes an Adjudicator/Referee to continue to hear and decide a matter if she resigns or is otherwise unable to complete a proceeding. Section 4.3 of the Statutory Powers Procedure Act provides that the term of office of a member of tribunal whose term expires before a decision is rendered is extended for that purpose but says nothing about a member of a tribunal who resigns. In order for jurisdiction over a matter to continue after an appointment has ended, specific statutory authority is required. For example, section 110(7) of the Labour Relations Act, 1995 provides that the Chair may authorize a member to complete a proceeding if she resigns her appointment or it expires. There is no such authority in any legislation when an Adjudicator/Referee resigns.
The applicant also requests that the Ontario Labour Relations Board pay the cost of any further hearing by awarding “costs against itself”. However, the Board is not an adjudicator in this matter. The Adjudicator/Referee is sympathetic to the concern that the parties must bear an extra cost by having this matter proceed to hearing a second time. However, the scheme of the Employment Standards Act does not contemplate costs being born by anyone except the party incurring them. There are likewise no provisions for the agency under whose auspices the matter is heard and determined bearing the parties’ costs and it would not be appropriate for me to direct the Board (which is not even a party) to do so even if I had that authority.
This matter is referred to the Registrar to set a date for the hearing of this matter in Ottawa. I remain seized.
“Laura Trachuk”
Adjudicator/Referee
This decision is issued under the administrative auspices of the Ontario Labour Relations Board, 505 University Avenue, 2nd. Floor, Toronto, Ontario, M5G 2P1
Fax : 416-326-7531
Sept. 28/00
Ms. Laura Trachuk
Adjudicator/Referee
Ontario Labour Relations Board
505 University Avenue, 2nd Floor,
Toronto, Ontario
M5G 2P1
Dear Ms. Trachuk:
I am responding to your Decision of the Board (the Decision), dated September 15, 2000.
Firstly, with respect to item #1 of the Decision, I fail to see how an adjournment is "appropriate" given that we have already waited almost five years to resolve these claims. Order to Pay #32006 was issued in January 1996 and has been held in "abeyance" pending a ruling on Tom Quinn's claim (Order #32005). We have continually demanded that this case no longer be delayed and that an immediate resolution be found so that our case, Order #32006 can be properly heard. The Ministry's decision in 1996 to sever its determination into (2) separate Orders to Pay was done to accommodate the employer and was entirely to our detriment. The practical effect of that decision is that the employer has been relieved of the obligation to post the required monies and penalty with respect of Order to Pay #32006. Our claim remains totally unsecured and we are losing the benefit of interest which would have accrued on these monies had they in fact been paid in back in January 1996.
The purpose of this letter is to demand that immediate action be taken in this matter. In view of the situation, it is incumbent upon the board to direct that the hearing with respect to Tom Quinn's claim be set down in priority for the next available date in Ottawa. Further, I must request, and insist, that no further adjournments be granted and the delay for filing an application for review of our claim, Order #32006, begin to run from the hearing date irrespective of whether or not the matter is finally heard.
Further, we request that the employer be required to file an application for review of Order #32006 and pay in the amount ordered together with the penalty in the event that Order #32005 is disposed of by way of settlement between the parties rather than by formal adjudication.
With respect to your request for submissions on the issue of whether or not you actually have jurisdiction to hear the matter of Tom Quinn's claim, I cannot afford to retain further legal counsel to advise the Board on a matter, which frankly I would expect the Board to seek its own counsel.
Thirdly, regarding the request that the Board pay the costs of the parties having to attend Quinn's hearing, I request that it would be appropriate that the Board also pay for the costs of our hearing (Order #32006) as well.
Sincerely,
(“Keith van Walraven”)
Keith van Walraven
25 Northview Road
Nepean, Ont.