The Hardwood Flooring Centre Inc. v. Stephane Veilleux, 2000 CanLII 5282

File No.: 1906-00-ES Employment Practices Branch File No.: 43002686 Date: December 6, 2000

Before: Harry Freedman, Vice-Chair

Decision of the Board

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. 55069 dated June 14, 2000 (the "Order") issued by Employment Standards Officer M. Victoria Biocca. The application was filed with the Board on October 12, 2000, the day the Board received the application in the mail. (The solicitors for the applicant had sent the application material to the Board by facsimile transmission on September 28, 2000. Rule 17 (a) of the Board's Rules of Procedure expressly provide that applications may not be filed with the Board by facsimile transmission.)

2Section 68(3)(a) of the Act provides:

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;

3The time for applying for review of the Order expired, at the latest, on July 31, 2000. Thus, this application is untimely as it was filed with the Board well beyond 45 days after the date of the Order, even if the Board were to treat the application date as September 28, 2000 rather than the actual application date which was October 12, 2000. Nevertheless, the Board may extend the time for making an application for review pursuant to section 68 (4) of the Act. Section 68 (4) of the Act provides:

Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.

4The Registrar, by letter to the parties dated October 16, 2000 requested certain material from both the Ministry of Labour and the applicant. The applicant was asked to provide some proof of payment of the Order. The Board received the requisite material from the Ministry of Labour, including proof of payment of $1632.10. The Order required payment of $2954.97. As a result of receiving that additional material from the Ministry of Labour, the Registrar wrote two letters to the solicitors for the applicant dated November 14, 2000; one requesting breakdown of the deductions that had been made and a second letter advising the solicitors for the applicant that it appeared that the application was untimely as it had not been filed within 45 days of the date of the Order. That second letter from the Registrar also advised the solicitors for the applicant that if they believed that the application had in fact been filed in a timely manner or if the applicant wanted the Board to extend the time for making an application, they must advise the Board in writing within 10 days of the date of the letter of the reasons for considering the application timely or why the Board should extend the time for making the application.

5The solicitors for the applicant, by letter dated transmitted to the Board on November 23, 2000, provided a breakdown and explanation for the statutory deductions the applicant had made in respect of its payment of the Order. That letter also states that the payment was contemporaneous with the application having been made and seeks to have the application accepted. The solicitors for the applicant have neither made submissions as to why the application is timely nor have they requested that the Board extend the time for making the application or provided any basis for the Board to consider it appropriate to extend the time under section 68(4) of the Act. Simply put, there is nothing from the applicant or its solicitors addressing the timeliness issue despite the Registrar's letter directing the applicant or its solicitors to advise the Board why it should consider the application timely or why the Board should extend the time for making the application.

6The Order was dated June 14, 2000. The time for making the application to review the Order expired 45 days from June 14, 2000 that is, July 31, 2000 (as the 45th day after the date of the Order was a day the Board was closed). The applicant has not sought an extension of time to make the application nor has it within the time fixed by the Registrar's letter of November 14, 2000 suggested why the Board should extend the time for making the application. Under these circumstances, there is no basis for the Board exercising its discretion under section 68(4) of the Act to extend the time for applying for review of the Order.

Disposition

7This application for review of Order to Pay No. 55069 is dismissed as it was made after the time established by section 68(3)(a) of the Act for making an application had expired.

"Harry Freedman"

for the Board