Ontario Labour Relations Board
2257-00-ES Mondenet Technical Services Inc., Applicant v. Sarah McLauchian, M. O’Keeffe, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20035034
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; December 11, 2000
1This 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. 58899 dated September 12, 2000 (the "Order") issued by Employment Standards Officer Michael O’Keeffe. The application in the proper form was filed with the Board on November 6, 2000, although the applicant by letter dated October 27, 2000 addressed to the Ministry of Labour offices in Ottawa sought review of the Order and enclosed a cheque in the requisite amount with that letter and sent a copy of that letter to the Board. The Board received the applicant’s letter on October 31, 2000. The applicant, by copy of a letter dated November 3, 2000 addressed once again to the Ministry of Labour offices in Ottawa, transmitted to the Board an application for review in the proper form. Those documents were received by the Board on November 6, 2000.
2Section 68(3)(a) of the Act provides that an application for review of an order to pay must be made within 45 days after the date of the order. Thus, the last day for filing a timely application was October 27, 2000. It appears therefore that whether the Board treated the letter dated October 27, 2000 as the application or the proper application dated November 3, 2000 as the application, since they were both filed with the Board after October 27, 2000, it is clear that the application is untimely.
3The applicant was advised by the Registrar by letter dated November 23, 2000 that it appeared that the application had not been filed in a timely manner and that the applicant could either seek an extension of time within which to make the application or advise the Board why the application was timely. The applicant, by letter to the Registrar dated November 27, 2000 and received by the Board on December 4, 2000 (and only brought to my attention on December 8th) indicated that it had delivered its application and payment to the Ottawa office, as it had been advised to do by the Ottawa Ministry of Labour office. The applicant then explained that it had delivered the application material and cheque based on its understanding of what the Ottawa office had advised, and when the cheque was returned by the Ottawa office because it had not been certified, the applicant moved immediately to certify the cheque and forward the correct application form and cheque to the Board. The applicant, on that basis, seeks an extension of time within which to make the application.
4The material filed by the applicant with the Board on November 6, 2000 included a letter from Mr. O’Keeffe dated November 1, 2000 in which Mr. O’Keeffe indicates that his office has received the applicant’s cheque and letter seeking review of the Order and then states:
The second page of my letter which accompanied the Order to Pay advised you that in the event you wished to apply for a review of my order you were required to prepare a "certified cheque, letter of credit, or a bank or postal order made payable to the Director in Trust, Employment Practices Branch" and remit together with your application for review to the Registrar, Ontario Labour Relations Board, 505 University Ave., 2nd Floor, Toronto, Ontario, M5G 2P1.
Not only did Mr. O’Keeffe’s letter accompanying the Order, according to Mr. O’Keeffe, accurately explain to the applicant how to file an application for review of the Order, the Order itself contains instructions on how to make the application. There is therefore, in my view, no proper basis to conclude that the applicant had reasonable justification for forwarding the application to the Ministry of Labour offices and not to the Board.
5In any event, the applicant’s cheque in payment of the order to pay and the initial letter seeking to review the Order are dated October 27, 2000. It appears from a receipt issued by the Ministry of Labour office in Ottawa (Receipt No. 61243) that the applicant provided the cheque and letter to the Ministry of Labour office on that day. The applicant also responded promptly to the Registrar’s letter of November 23, 2000 about the timeliness of the application.
6Section 68(4) of the Act permits the Board to extend the time for applying for a review if it considers it appropriate to do so. The application was properly filed with the Board on November 6, 2000, just over one week beyond the date for making a timely application. The actual letter advising the Ministry of Labour that the applicant was seeking to review the Order was filed with the Ministry on October 27, 2000, the last day for filing a timely application and a copy of it was mailed to the Board by the applicant. Although the application was not made until it was received by the Board on November 6, 2000, I am satisfied that, in view of the short time that has elapsed between the last day for making the application and the date when the application was filed, the applicant’s intention to have filed a timely application as evidenced by the date it prepared the letter and cheque and delivered them to the Ministry of Labour offices, and the unlikely prejudice an extension of time would cause the other parties to the application when balanced against the prejudice to the applicant that would result in refusing to extend the time, it is appropriate for the Board, pursuant to section 68 (4) of the Act, to extend the time for making this application for review to November 6, 2000, the date upon which the application was received by the Board.
Disposition
7The time for making this application for review is hereby extended to November 6, 2000, the date upon which the application was filed with the Board.
8This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board