3404-99-ES Derrick Woodman, Applicant v. G.R.M. Contracting Ltd., Betty Ross, B. James Lange, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 40010158
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; December 7, 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 refusal of Employment Standards Officer B. James Lange to issue an order to pay against the applicant's employer. When this matter came before the Board (differently constituted) for hearing on September 21, 2000, counsel for the Ministry of Labour and the Employment Standards Officer sought an adjournment on the grounds that the applicant, who the Ministry asserted was not an employee but rather an independent contractor and was therefore not entitled to claim wages under the Act, if he was an employee, was an employee of Betty Ross and not an employee of the responding party. The Board, at the request of counsel for the Ministry of Labour and without opposition from counsel for the applicant adjourned the matter so that Ms. Ross, who was added as a party by that decision, could be given notice of this proceeding. The matter was then referred to the Registrar to be listed for hearing.
Counsel for the applicant, by letter to the Board dated November 24, 2000 (and subsequently transmitted again to the Board on December 1, 2000 by facsimile transmission dated November 30, 2000 and only brought to my attention in the afternoon of December 5, 2000) seeks to have the hearing, which has been scheduled for December 20, 2000 conducted by telephone conference.
The Board does not normally conduct its hearings by telephone or through electronic means. Where there are factual matters in issue, it is obviously preferable for the Board to hear and see witnesses giving their evidence. Nevertheless, the Statutory Powers Procedure Act, R. S. O. 1990, c. S. 22 (the "SPPA") does permit tribunals, such as the Board when it is engaged in proceedings under the Act, to conduct electronic hearings in certain circumstances. Section 5.2 of the SPPA provides:
(1) A tribunal whose rules made under section 25.1 deal with electronic hearings may hold an electronic hearing in a proceeding.
(2) The tribunal shall not hold an electronic hearing if a party satisfies the tribunal that holding an electronic rather than an oral hearing is likely to cause the party significant prejudice.
(3) Subsection (2) does not apply if the only purpose of the hearing is to deal with procedural matters.
(4) In an electronic hearing, all the parties and the members of the tribunal participating in the hearing must be able to hear one another and any witnesses throughout the hearing.
The Board Rules provided for electronic hearings. Rule 53 of the Board's Rules of Procedure states:
The Board may conduct an electronic hearing in any case before it, as the Board considers advisable. Unless the only purpose of the hearing is to deal with procedural matters, the Board will not conduct an electronic hearing if a party satisfies it that holding an electronic hearing is likely to cause the party significant prejudice.
Rule 53 applies to proceedings before the Board under the Act by virtue of Rules 3 and 107 of the Board's Rules of Procedure. Therefore, I am satisfied that the Board may, if it considers it advisable, conduct an electronic hearing in this application.
Counsel for the applicant seeks to have an electronic hearing on the grounds that the applicant has moved to Ottawa and is employed there. Counsel submits that imposing the burden of travelling to Toronto for the hearing in order that he attend the hearing in person would create an extreme hardship for him. In addition, counsel submits that this time of year is a very busy time for the applicant, who works evenings, so that an electronic hearing during the day would enable the applicant, in the words of his counsel, "to secure his current employment".
Counsel for the applicant provided a copy of her letter seeking an electronic hearing to the other parties. The Board has received no submissions from them, as yet, with respect to the request. If the other parties wish to make any submissions with respect to the applicant's request, they must do so within 5 days of the date of this decision, that is on or before December 14, 2000. If no submissions are received by that time, the Board will deal with the request for an electronic hearing based on the material that counsel for the applicant filed.
Since the manner in which the hearing will be conducted is best determined by the panel of the Board who will be assigned to hear this matter once the Registrar determines whether the appropriate facilities required for an electronic hearing (that meet the requirements of section 5.2(4) of the SPPA) can be secured for the hearing on December 20th, the panel of the Board assigned to hear this matter can decide whether to grant the applicant's request or proceed with the usual hearing at the time and place set out in the notice of hearing.
This matter is referred to the Registrar to make the determination set out in paragraph 6 above and to place the request made by the applicant for an electronic hearing before the panel of the Board assigned to hear this application so that it can determine the manner in which the hearing of this matter will be conducted.
This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board