2270-99-ES Supply Chain Management Inc., Applicant v. Attila Abri and Ministry of Labour, Responding Parties.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; January 13, 2000
This is an employer request for review of an order to pay issued by an Employment Standard Officer on September 13, 1999. The application is made pursuant to section 68 of the Employment Standards Act as amended.
The Board is in receipt of a letter from counsel for the applicant employer regarding the Registrar’s letter of December 16, 1999 advising the applicant employer that the application was untimely. Counsel submits that the application is timely for the reasons set out below and in the alternative that if the application is untimely the Board should exercise its discretion under section 68(4) of the Act to extend the time for filing its application.
Section 68 of the Employment Standards Act as amended provides in part as follows:
(3) An application for a review must be made,
(a) in the case of an application for a review of an order, within 45 days after the date of the order;
(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).
(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.
(5) In the case of an order that requires the payment of money to the Director in trust, the Board may not extend the time for applying for a review if the Director has paid the money to an employee or employees under subsection 72 (2).
(6) An application for a review must be in writing.
(7) An application for a review of an order requiring the applicant to pay an amount is not properly made and the Board shall not proceed with the review unless, within the time for applying for the review, the applicant pays the amount to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.
The Board file contains an order to pay dated September 13, 1999 and a second order to pay dated September 27, 1999. Both documents have the same Order to Pay No. being 47725.
The application for review is timely based on the date contained in the second order but untimely based on the date contained in the first order.
Assuming without deciding that the date of the first order to pay was the applicable date, this is an appropriate case for the exercise of the Board ‘s discretion under section 68(5) to extend the time for applying to November 8, 1999.
The second matter raised by counsel in the December 20, 1999 correspondence is another letter forwarded by the Registrar on December 16, 1999 requiring the applicant to provide the “Breakdown of Statutory” deductions required in order to process this application. This information is contained in the letter from counsel and accordingly the application for review is complete.
Having regard to the above, the Registrar is directed to process this application in the normal course.
“Marilyn Silverman”
for the Board