Bay City Sound & Vision v. Barrault, 2000 CanLII 6543

File No.: 3784-98-ES Date: January 12, 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. 52602 issued by Employment Standards Officer Dolores Dumontier. At the time the application was made, the applicant stated in a letter to the Registrar dated December 20, 1999 (received by the Board on January 22, 1999) that the reason for the “appeal” was “…to wait for the ruling of a civil matter brought against Brendon Barrault by Bay City Sound & Vision”. The applicant also stated that it was requesting in its civil action that the money held in trust in this matter be returned to the applicant.

2The applicant, by letter dated January 5, 2000 advised the Registrar that it had obtained judgment against Mr. Barrault in an amount which far exceeds the amount the applicant was required to pay under Order to Pay No. 52602. The applicant also attached to her letter a document purporting to be the trial judge’s endorsement in the civil action. The applicant did not include a certified copy of the formal judgment of the Ontario Court General Division in the civil action against Mr. Barrault. The applicant’s January 5, 2000 letter concludes: “I ask that these funds be returned to Bay City Sound & Vision and bring this matter to a close.”

3It appears that the applicant believes that the successful civil action and judgment obtained by the applicant is sufficient to dispose of the application for review under the Act. It does not. The applicant refused to pay Mr. Barrault his final pay because of the circumstances that ultimately led to the applicant obtaining judgment against him in a civil action in the Ontario Court General Division. The Officer found that the applicant, at the time, was not entitled under the Act to withhold Mr. Barrault’s final pay.

4It appears to me that the real issue in this case, as far as the applicant is concerned, is how the applicant can obtain the money it paid to the Director in trust in respect of unpaid wages. In addition to Mr. Barrault’s final pay, the Order to Pay also required the applicant to pay $100.00 to the Director in statutory administration costs. It is not clear if the applicant is also claiming repayment of that $100.00.

5If the applicant is content to withdraw its application for review, then the amount held in trust by the Director would be payable to Mr. Barrault. That is, the amount of the Order to Pay, less the $100.00 statutory administration costs. Since the applicant has obtained judgment against Mr. Barrault in a civil action, there may well be legal procedures available to the applicant to have the Director pay to the applicant the money that would other wise be payable to Mr. Barrault. The Board, however, in this application for review under the Act does not have the authority to make such an order.

6The applicant may withdraw its application for review without the consent of any other party. If the applicant does not want to proceed with the hearing and wishes to have the money held in trust by the Director paid directly to it without taking any further steps to enforce the judgment obtained in its civil action, then the applicant, Mr. Barrault and the Ministry of Labour must enter into a settlement pursuant to section 69.1 of the Act.

7In the circumstances, the Board could adjourn the hearing in this matter scheduled for Thunder Bay on February 15, 2000 in order to allow the applicant to contact counsel for the Ministry of Labour to determine how the monies the Director is holding in trust that would be payable to Mr. Barrault if this application were withdrawn can be secured by the applicant. Alternatively, this matter could proceed to hearing as scheduled to allow the applicant the opportunity to argue that the Board should rescind the order issued by the Employment Standards Officer.

8Under the circumstances, the Board is of the view that this application should be adjourned sine die to permit the applicant to contact counsel for the Ministry of Labour or to request a Labour Relations Officer be appointed to endeavour to effect a settlement.

Disposition

9This matter is adjourned sine die for a period not exceeding one year but will be listed for hearing at the request of any of the parties. If the Board does not receive a request to list this matter for hearing within one year from the date of this decision, it will be deemed dismissed.

10This panel of the Board is not seized with this matter.

“Harry Freedman”

for the Board