Harry Margel v. Shirley Hayley, Caroline Burke, Employment Standards Officer and Ministry of Labour
File No.: 1454-00-ES Employment Practices Branch File No.: 30010154 Before: Harry Freedman, Vice-Chair. Decision of the Board: September 28, 2000
1Employment Standards Officer Caroline Burke issued Order to Pay No. 44532 dated December 30, 1996 (the “Order”) against Harry Margel and Grower Direct North York in the amount of $1,940.22. On August 17, 2000, Harry Margel filed 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 Order. Although the Order was issued under the Act prior to its amendment by Part II of the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c. 8 (“Bill 31”), as the application for review was made after Bill 31 came into force, the review procedure under the current Act, including the time within which an application for review must be made and the Board’s power to extend the time for applying for review, is applicable by virtue of section 48(1)(b) of Bill 31. Thus, the application for review is determined by the Board and the Board, under section 68(4) of the Act, has the discretion to extend the time for applying for a review if the Board considers it appropriate to do so.
2After receiving the application, the Registrar requested that the applicant provide a copy of a receipt or proof of payment of the Order. The applicant provided the Board with a letter from the CIBC dated July 19, 2000 in which that bank confirmed that “the third party demand against Harry Margel, File No. 30010154 in the amount of $2,328.26 has been paid in full and payment submitted to the Ministry of Labour, Employment Standards.” (The File Reference Number of the Order was 30-010154.) Furthermore, the Employment Practices Branch, in a memorandum to the Registrar’s Office, confirmed that the applicant had made the payment required by the Order and had made an application for review of the Order. Thus, the application for review was made on August 17, 2000 as the application had been received by the Board on that date and the payment of the Order had been received by the Director by that date.
3An application for review of an order to pay under the Act must be made within 45 days of the date of the order pursuant to section 68(3)(a) of the Act unless the Board extends the time for making the application pursuant to section 68(4). Section 68(4) of the Act provides, in part:
…the Board may extend the time for applying for a review if it considers it appropriate to do so.
As the application was made on August 17, 2000 in respect of the Order that was dated December 30, 1996, the application was filed about three and a half years late. There was nothing in the application to indicate why the applicant had waited more than 42 months after the Order was issued to apply for review of the Order, nor does the applicant even request that the Board extend the time for applying for review of the Order.
4Although the Board can extend the time for applying for review, an applicant must request that the Board do so and in addition, set out the grounds on which the applicant relies to have the Board exercise its discretion under section 68(4) of the Act. Under the circumstances the Board is prepared to permit the applicant to request that the Board extend the time for making his application for review of the Order.
DISPOSITION
5The applicant may, if so advised, request that the Board extend the time for making an application for review of Order to Pay No. 44532 dated December 30, 1996. The request must be filed with the Board, together with a statement of all facts upon which the applicant relies in support of that request, within 10 working days of the date of this decision, that is on or before Friday October 13, 2000. Upon receipt of that request and statement of facts the Board will determine whether to extend the time for making the application, request submissions in response to the request from the Ministry of Labour or refuse the request and dismiss the application. Should the applicant fail to file the request and statement of facts on or before Friday, October 13, 2000, this application will be dismissed because it was made after the expiry of the time for making an application for review established by section 68(3)(a) of the Act.
6This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board