0710-00-ES Engineered Solutions Corp., Applicant v. Yvon Aubertin and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43002116
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; July 27, 2000
This is an employer’s request for a review of an Order to Pay issued by an Employment Standards Officer on March 31, 2000. The application is made pursuant to section 68 of the Employment Standards Act (‘the Act’).
From the material filed it appears that the application has not been filed in a timely manner, that is, within 45 days of the date of the Order to Pay.
The Act provides that the Board may extend the time for applying if it considers it appropriate to do so.
Section 68 of the Act as amended provides in part as follows:
- (1) A person who considers himself, herself or itself aggrieved by an order made under subsection 13.1 (14) or section 45, 48, 51, 56.2, 58.22, 58.23 or 65 or by the refusal of an employment standards officer to issue such an order may apply to the Board for a review of the order or refusal.
(2) A person may not apply for a review of a refusal to issue an order against a director.
(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 Order to Pay was issued on March 31, 2000. The application for review was filed on June 1, 2000. The Ministry of Labour’s receipt of the payment in trust is dated May 29, 2000, however the payment was received and stamped on May 15, 2000. The 45th day was May 15, 2000.
The applicant employer requests an extension of time by letter dated July 25, 2000 and received by the Board on that same date. It asserts that in error both the payment and the application for review were forwarded to the Ministry of Labour rather than the application being sent to the Board.
Having regard to the reasonableness of the explanation advanced, the fact that the applicant did by its actions evidence an intention to file the application on time and the fact that the application was filed shortly after the deadline, I am prepared to extend the deadline for filing of this application to June 1, 2000.
“Marilyn Silverman”
for the Board