3785-99-ES Pantuso Performance Centre Inc., Applicant v. David Heller, Patricia Kelly, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20034511
BEFORE: Harry Freedman, Vice‑Chair.
DECISION OF THE BOARD; May 12, 2000
This is an application for review 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. 58976 dated February 29, 2000 issued by Employment Standards Officer Patricia Kelly. The applicant purported to make the application for review by letter dated March 7, 2000 and issued a cheque dated March 6, 2000 (cheque number 0700) in the requisite amount payable to the Director in trust. When that material was received by the Board, the applicant was advised by a letter from the Registrar dated March 28, 2000 that the application had to be filed on the proper forms in accordance with the Board’s Rules of Procedure. The applicant filed the application with the Board in the proper form on April 12, 2000.
The Ministry of Labour advised the Board by letter dated April 10, 2000 that the cheque issued by the applicant had been returned as not having cleared the applicant’s account. It appears that the applicant was aware that its first cheque was returned because the applicant issued a second cheque dated March 31, 2000 (cheque number 2145) in the requisite amount payable to the Director in trust. Thus it appeared that as of April 12, 2000, the application for review of Order to Pay No. 58976 was properly made and was timely as it was made within 45 days of the date of Order to Pay No. 58976.
The Ministry of Labour advised the Registrar, by letter dated May 10, 2000 that the applicant’s cheque had been returned. The letter stated:
Please be advised the above referenced employer had filed an application for review of an Order to Pay under the Employment Standards Act accompanied by a cheque in payment of the order. The cheque has been returned by the bank as not clearing the employer’s account.
In light of the failure to make payment required under the legislation, the appeal [sic] filed should be denied.
It is not clear whether the Ministry is referring to the first cheque (cheque number 0700) or the second cheque (cheque number 2145) as being returned. If it is, in fact, the latter cheque, then the application was not properly made (see section 68 (7) of the Act).
- The Board directs the applicant and the Ministry to make written submissions with respect to the Ministry’s request to have this application dismissed by reason of the applicant’s alleged failure to make the requisite payment to the Director in trust. Those submissions should include a clear indication as to which cheque the Ministry was referring in its letter of May 10, 2000 to the Registrar and if the second cheque issued by the applicant was also returned because it had not cleared the applicant’s account, why the Board should not dismiss the application as requested by the Ministry. Those submissions must be filed with the Board within 15 working days of the date of this decision. If no submissions are received by that date, the Board will deal with the matter based upon the material that is before it, which at this point suggests that the requisite payment required by section 68 (7) of the Act was not made by the applicant.
Disposition
The applicant and the Ministry are directed to make written submissions to the Board within 15 working days of the date of this decision with respect to the issues described in paragraph 4 above.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board