3404-99-ES Derrick Woodman, Applicant v. G.R.M. Contracting Ltd., 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; May 10, 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 decision of Employment Standards Officer B. James Lange refusing to issue an order to pay. The letter advising the applicant of the Officer’s decision was dated December 30, 1999. The applicant, by his counsel, filed the application for review with the Board on February 22, 2000. Section 68(2)(b) of the Act provides that an application for a review of an Officer’s refusal to issue an order must be made within 45 days after the date of the letter advising of the refusal. Thus, the last day for filing a timely application was February 14, 2000.

2The applicant and his counsel were advised by the Registrar by letter dated May 4, 2000 that it appeared that the application had not been filed in a timely manner and that the applicant could either seek an extension of time within which to make the application or advise the Board why the application was timely. Counsel for the applicant, by letter dated May 8, 2000 advised the Board that it was counsel’s “full intention to file this appeal in a timely manner.” Counsel advised that they had incorrectly counted the 45 days and requested the Board to exercise its discretion to allow this matter to proceed because counsel’s error should not prejudice the applicant. Counsel also stated: “It appears we were four days late in filing the appeal.” Counsel also pointed out that extending the time for making the application would not prejudice the employer since such a short time has elapsed between the last day for making a timely application and the date the application was made.

3Section 68(4) of the Act permits the Board to extend the time for applying for a review if it considers it appropriate to do so. The application was filed on February 22, 2000, eight days beyond the date for making a timely application. (I note that the applicant had transmitted the application to the Board by facsimile transmission on February 21, 2000 and requested that it be accepted as an application. The application was delivered to the Board the next day.) Rule 17 of the Board’s Rules of Procedure is quite specific. An application may not be filed by facsimile transmission. Thus, the application was not made until it was delivered to the Board on February 22, 2000. Nevertheless, in view of the short time that has elapsed between the last day for making the application and the date when the application was filed, the applicant’s intention (as asserted by counsel) to have filed a timely application and the unlikely prejudice an extension of time would cause the employer when balanced against the prejudice to the applicant that would result in refusing to extend the time, the Board, pursuant to section 68 (4) of the Act, extends the time for making this application for review to February 22, 2000, the date upon which the application was delivered to the Board.

Disposition

4The time for making this application for review is hereby extended to February 22, 2000, the date upon which the completed application was filed with the Board in accordance with the Board’s Rules of Procedure.

5This panel of the Board is not seized with this matter.

“Harry Freedman”

for the Board