2712-99-ES 1286839 Ontario Ltd. o/a Innovative Business Centers, Applicant v. Anna McKinnon, Glen Howard, Employment Standards Officer and Ministry of Labour, Responding Parties.

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; February 9, 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 Order to Pay No. 48819 issued on October 15, 1999 by Employment Standards Officer Glen Howard. The applicant attempted to deliver a letter dated November 30, 1999 to the Board at the address for the Board contained in the Order to Pay form (400 University Ave., 4th Floor) together with the requisite payment to the Director in trust. The Board did not receive the letter until December 1, 1999. Subsequently, after being advised by the Registrar’s office that the application had to be filed on the proper form, the applicant filed its application with the Board on the proper form on December 23, 1999.

2The Registrar advised the applicant that it appeared that its application was untimely and directed the applicant to advise the Board if it believed that its application was timely or if it wanted an extension of the time for making the application and to advise the Board of the reasons why the Board should consider the application timely or why an extension of time for making an application ought to be granted.

3The applicant submitted, by letter filed with the Board dated February 7, 2000, that it had attempted to deliver the application to the Board on November 30, 1999 but was unable to do so as the Board had moved its offices from the address provided to the applicant in the Order to Pay. It was ultimately successful in delivering its application to the Board on December 1, 1999 and filed a document entitled “certificate of delivery” which the applicant says is proof of that attempt and delivery. The applicant also suggested that the attempted delivery on November 30 and the actual delivery on December 1, 1999 came within the 45 day period. The applicant stated in its February 7, 2000 submission: “We understand that both of these deliveries fall within the 45 day period.” The applicant did not set out the basis for its understanding nor did it request that the Board extend the time for filing its application for review.

4The Order to Pay was dated October 15, 1999. A timely application for review of that order, pursuant to section 68 (3) (a) of the Act, had to be made “within 45 days after the date of the order.” Forty-five days after October 15, 1999 is November 29, 1999, not November 30, 1999 as the applicant seems to believe. The Board is prepared to assume that the application, even though filed in the form of a letter on December 1, 1999 and only later in December on the correct form, was filed with the Board on December 1, 1999, at the earliest. It is clear, however, that the application in the proper form was not filed with the Board until December 23, 1999.

5Both the application letter and the cheque are dated November 30, 1999. It is clear therefore that the applicant attempted to bring its application for review on November 30, 1999 and not any earlier than that date.

6The Order to Pay form, in addition to providing the applicant with the wrong address for the Board also states “The Application for review … must be forwarded to the Registrar, Ontario Labour Relations Board … within 45 days of the date of the delivery or service of this order.” [emphasis added] The information contained in the Order to Pay about the time within which to make an application is also wrong. The Act is clear. The time for making the application for review of an Order to Pay is based not on when it was delivered or served on the applicant but rather on its date.

7As the Ministry of Labour and Employment Standards Officer provided the applicant with the wrong information about applying for review of the Order to Pay when it used an outdated form, the Board, pursuant to section 68(4) of the Act, considers it appropriate to extend the time for making the application.

Disposition

8The time for making the application is extended to December 23, 1999, the date when the application on the proper form was filed with the Board.

9This panel of the Board is not seized with this matter.

“Harry Freedman”

for the Board