1455-00-ES 976395 Ontario Inc. o/a Moonfleet, Applicant v. Justin Burry, Roan Burry, Cheryl Starr, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 61004978
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; September 29, 2000
On July 5, 2000, Employment Standards Officer Cheryl Starr issued Order to Pay No. 58236 (the "Order") requiring the applicant to pay a gross assessment of $3,356.97 and statutory administration costs of $335.69 for a total amount of $3,692.66. The applicant by its counsel purported to apply for review of the Order under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") on August 17, 2000 by filing an application with the Board and remitting payment to the Director in trust in the amount of $1,901.28.
The Board, by letter dated August 25, 2000, advised counsel for the applicant that a breakdown of the statutory deductions for each employee was required. Counsel for the applicant, by letter dated September 1, 2000 provided that breakdown, which showed statutory deductions for the two claimants totalling $1,455.69. The applicant has, quite properly, deducted from its payment to the Director the amount of the statutory deductions applicable to each of the claimants. However, the applicant failed to pay the statutory administration costs of $335.69. The applicant, in calculating the amount it was going to pay to the Director, clearly deducted the amount of the statutory deductions from the gross assessment, but did not include in its calculation the additional $335.69 assessed for statutory administration costs. The applicant has not provided any explanation or justification for not paying the statutory administration costs.
An application for review of an order to pay issued under the Act must be made in accordance with the process established by section 68 of the Act. The relevant parts of section 68 of the Act that establish the application for review process provide:
(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;
(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 ....
Although the applicant had filed the proper form to make an application for review, the applicant has not yet made the payment required by the Act in order for this application for review to proceed, since the applicant has failed to pay the statutory administration costs set out in the Order. If the applicant does wish to proceed with its application it must pay to the Director in trust the statutory administration costs of $335.69 and provide proof of that payment to the Board within 10 working days of the date of this decision. Furthermore, since the time for making the application for review has now expired, the applicant must also request that the Board, pursuant to section 68(4) of the Act, extend the time for applying for review of the Order (as the review has not as yet been properly made because the entire amount of the Order was not paid) and set out the grounds for such an extension. If the payment is not made and proof of payment not provided to the Board on or before October 16, 2000, this application will be dismissed. If the payment is made and proof of payment is provided to the Board and an extension for applying for review is sought by that date, the Board will determine at that time whether to extend the time for applying for review of the Order or dismiss the application.
This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board