Ontario Labour Relations Board
File No.: 1454-00-ES, Employment Practices Branch File No. 30010154 Date: October 31, 2000
Between: Harry Margel, Applicant v. Shirley Hayley, Caroline Burke, Employment Standards Officer and Ministry of Labour, Responding Parties.
Before: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD
1By decision in this matter dated September 28, 2000 the Board noted that this application for review under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14 was filed about three and half years late and permitted the applicant to request an extension of time for making the application. Subsequent to that decision, the applicant by letter dated October 12, 2000 sought to have this matter proceed to a hearing because the applicant believes that the amount of the order was excessive. He also states that he “did not have knowledge of any proceedings in 1996” and “did not have the opportunity to resolve this matter.” He goes on to assert that it was “not until $2328.26 had been garnished in payment to the Ministry of Labour was I made aware.”
2Counsel for the Ministry of Labour opposes any extension being granted. By letter dated October 2, 2000, a copy of which was, according to counsel, provided to the applicant, asserts that the applicant not only had the opportunity in 1996 to resolve this matter, but also refused to co-operate with the Employment Standards Officer or provide any information to the officer. The claimant also indicated that she had attempted to resolve the merits of the situation with the applicant before making a claim with the Ministry.
3The issue before me at this stage is whether the Board should exercise its discretion under 68(4) of the Act to extend the time for applying for review. The Board must “consider it appropriate to do so” before the time will be extended. The burden is on the applicant to persuade the Board why it is appropriate to extend the time for making the application.
4In this case the applicant asserts he had no knowledge of any proceedings in 1996. The Order to Pay was issued on December 30, 1996. The applicant does not allege in any of the material he has filed that he did not receive the Order to Pay shortly after it was issued. The Order to Pay would have come to his attention in 1997. He does not say that he did not have any knowledge of proceedings in 1997. Furthermore, the length of time between the Order to Pay being issued and the date of the application is a factor. The employee affected was dismissed in July 1996. The officer determined that the claimant employee was not provided with written notice of termination or pay in lieu of such notice and was not paid vacation pay for the one year period prior to her termination. The only ground for seeking review of the Order to Pay that the applicant relies on is that the amount of the order “is far too excessive for an employee with only about 3 years of service.”
5The claimant employee has waited almost four years for the wages that the employment standards officer found is owed to her. The applicant has not indicated why he believes that the amount of the order to pay (which was $1940.22) was excessive. Whether the amount that was garnisheed from the applicant’s bank account was correct is not a matter that is within the Board’s jurisdiction to determine. The applicant has not alleged that he did not receive the Order to Pay. Indeed, the correct number of the Order to Pay is contained in the application for review. Finally, the applicant had sought to apply for review of the Order to Pay only after the Ministry of Labour was able to locate a bank account of the applicant which could be garnisheed in order to secure the wages owed to the claimant.
6Under the circumstances, the applicant has not persuaded me that it is appropriate to extend the time for making the application for review of Order to Pay No. 44532.
Disposition
7This application for review is dismissed.
“Harry Freedman”
for the Board