0036-00-ES Mark Lockwood, A Director of 1100108 Ontario Ltd. o/a Casino Country, Applicant v. Doina Cambrea et al and the Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 34000801

BEFORE: Stephen Raymond, Vice-Chair.

APPEARANCES: Mark Lockwood for the applicant; George T. Kish, Herman Lam and Cynthia Strachan for the responding party; Stephen Mason for the Ministry of Labour.

DECISION OF THE BOARD; December 8, 2000

1. 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 Order to Pay No. D 04621 (the “Order”) issued pursuant to section 58.22 of the Act by Employment Standards Officer P. Harris Bernard (the “Officer”) dated February 1, 2000.

2. A hearing was held on November 30, 2000.

Some Background History to this appeal

3. The applicant, Mr. Lockwood (“Mr. Lockwood”), is President of 1100108 Ontario Ltd. o/a Casino Country and was at all material times a director of the same company. Casino Country operated charity casinos in Ontario until March 31, 1998. Certain persons who worked for Casino Country complained to the Ministry of Labour that they were entitled to unpaid wages and vacation pay. An investigation was conducted by the Officer and an Order to Pay was issued. Casino Country appealed the Order to Pay but failed to pay the required amounts into trust at the time of the appeal and as a result, the Board dismissed the appeal. Subsequently, an Order to Pay in the same amount as the Order to Pay against Casino Country was issued against Mr. Lockwood as a director of 1100108 Ontario Ltd. o/a Casino Country.

4. Mr. Lockwood takes the position that he was not consulted during the initial investigation of the matter by the Officer and that if he had been “he could have cleared up matters”. The Board shares the concern of Mr. Lockwood that as President of the company he was not consulted at any time during the investigation of these claims.

This Appeal

5. Mr. Lockwood took the position in his appeal that the claimants were not employees but were independent contractors. At the hearing, he admitted that the claimants were employees.

6. The only outstanding issue was the entitlement of the claimants to the amounts ordered. Mr. Lockwood did not have any payroll records nor were they still in his possession. He did have the results of a Revenue Canada audit of Casino Country’s obligations to make remittances on behalf of a group of persons including the claimants. However, this evidence was not conclusive of anything in the absence of the payroll documents.

7. The claimants had been treated by the employer as independent contractors. They invoiced the employer and received payment. The claimants had some proof of entitlement by way of their own copies of invoice records of amounts received. Vacation pay was claimed on these amounts. However, much of their evidence was statements by the claimants to the Officer about time worked which was unsubstantiated. In spite of the fact that all the claimants had notices of the hearing, only three of the thirteen claimants appeared.

8. It was assumed by the Board in the absence of the employer’s payroll records that the claimants that were present could prove their full entitlements to vacation pay and unpaid wages by way of oral testimony. In other words, there would be no way for the applicant to deny the claims. However, the only proof for the claimants who were not present was the information submitted. The Board was prepared to grant vacation pay on the amounts claimed which was substantiated by the records presented by the claimants but not any unpaid wages which was unsubstantiated. On that basis, the Board proceeded to determine the amounts that the claimants could prove due and owing and ordered Mr. Lockwood to pay the following amounts forthwith to:

Doina Cambrea ................................ $ 214.00

Ion Cambrea ................................ $ 377.40

Pauline Chen ................................ $ 120.00

Kwanghun Choi ................................ $ 716.22

George Kish ................................ $2356.64

Herman Lam ................................ $ 527.74

Brian Murchie ................................ $ 712.00

Phuong Nguyen ................................ $ 483.00

Cynthia Strachan ................................ $ 483.00

Yang Jian Tan ................................ $ 184.00

9. Statutory deductions may be deducted from the amounts listed above. The other three claimants have no substantiated claim against Mr. Lockwood.

10. The one hundred dollar ($100.00) letter of credit held by the Director in Trust should be returned to Mr. Lockwood, together with any interest owing.

“Stephen Raymond”

for the Board