1613-00-ES Jeremy Hynes, Applicant v. Eddie Shack Donuts, Donald G. Chillman, Employment Standards Officer and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 40011657

BEFORE: Harry Freedman, Vice‑Chair.

DECISION OF THE BOARD; September 27, 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 the refusal of Employment Standards Officer Donald G. Chillman to issue an order. A timely application for review of a refusal to issue an order must be filed within 45 days of the date of the letter advising the applicant of the refusal. See section 68(3)(b) of the Act which provides:

An application for a review must be made,

(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67 (2).

2The application was filed with the Board on August 29, 2000, the day the Board received the application through the government’s inter-office mail system. It appears that the application was sent to a government office by facsimile transmission on August 25, 2000 and was subsequently forwarded by that office to the Board. The letter from Mr. Chillman advising the applicant that he was refusing to issue an order was dated July 11, 2000. Indeed, the applicant noted that date in his application. Thus, the application is untimely as it was made beyond 45 days after the date of the letter advising of the refusal to issue an order.

3The Registrar advised the applicant by letter dated September 8, 2000 that it appeared as if the application had not been filed with the Board within the time required by section 68(3)(b) of the Act, that is, within 45 days of the date of the letter advising the applicant of the Officer’s refusal to issue an order. The letter from the Registrar goes on to advise the applicant that if he believed that the application had in fact been filed in a timely manner or if the applicant wanted the Board to extend the time for making an application, he must advise the Board in writing within 10 days of the date of the letter the reasons for considering the application timely or why the Board should extend the time for making the application. (The Board may, under section 68(4) of the Act, extend the time for applying for a review if the Board considers it appropriate to do so.) The Registrar also sent a second letter to the applicant dated September 8, 2000 advising that his application could not be processed because it had been sent to the Board by facsimile transmission. That letter goes on to state in bold print: “Your application must be filed with the Board within 10 working days from the date of this letter. Failure to file the completed form within the allotted time may result in the termination of this application.” As of the date of this decision, the applicant has not provided any submissions or material to the Board in response to the Registrar’s letters.

4The letter advising the applicant that the Officer had refused to issue an order was dated July 11, 2000. The time for making an application to review the refusal to issue an order expired 45 days from July 11, 2000 that is, August 25, 2000. The applicant has not sought an extension of time to make the application nor has he responded in any way to the letters from the Registrar. Under these circumstances, there is no basis for the Board to exercise its discretion under section 68(4) of the Act to extend the time for applying for a review the Officer’s refusal to issue an order.

DISPOSITION

5This application for review of the Officer’s refusal to issue an order is dismissed as it was made after the time established by section 68(3)(b) of the Act for making an application.

“Harry Freedman”

for the Board