3401-99-ES Deborah Frances Boswell A Director of West Machinery Co. Limited, Applicant v. Winnifred Woods et al and Ministry of Labour, Responding Parties.
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: Matthew Moloci, Deborah Boswell and John Barzo for the applicant; Emil Hofbauer, Jay Stewart, James R. Follington Jr. and Stephen Reynolds on their own behalf; Murray Klein for the Ministry of Labour.
DECISION OF THE BOARD; October 27, 2000
- This matter is an application for review of Director Order to Pay No. D04397 dated January 6, 2000. The applicant, Deborah Boswell, raised two preliminary issues that, if successful, would dispose of this appeal. Accordingly, the Board directed that it would heard the parties’ submissions with respect to the two preliminary issues, and render a determination thereon, prior to hearing evidence and submissions going to the merits of the application. The parties were agreed as to the facts necessary to argue the preliminary issues.
Preliminary Issues
- The applicant submits that the Employment Standards Officer had no authority to issue a Director Order to Pay under section 58.23 of the Employment Standards Act (the “Act’) because no order to pay was issued against an employer. Secondly, the applicant submits that the trustee in bankruptcy dealt with the merits of the instant matter when he disallowed a proof of claim filed on behalf of the employees such that this matter is res judicata.
Facts
The form that an Employment Standards Officer completes in order to issue a Director Order to Pay requires the Officer to check off whether the Order to Pay is pursuant to section 58.22 or 58.23 of the Act. In the instant case, the Employment Standards Officer checked the box for section 58.23. The instant Director Order to Pay could not have been issued pursuant to section 58.23. It could only, subject to the applicant’s preliminary argument, have been issued pursuant to section 58.22.
The Director Order to Pay at issue is in respect of wages and vacation pay owing to employees of Tobac Curing Systems Limited (“Tobac”). Tobac went into bankruptcy on January 9, 1998. The sole director of Tobac was Robert John Boswell, Deborah Boswell’s spouse. Robert declared personal bankruptcy at or about the same time as Tobac. The employees to whom wages and vacation pay were owing at the time of Tobac’s bankruptcy were represented by a union. The union filed a proof of claim on the employees’ behalf with the trustee in bankruptcy of the estate of Tobac.
Deborah Boswell was the sole director of a company by the name of West Machinery Co. Limited (“West”). West went into bankruptcy at the same time as Tobac. West and Tobac were both represented by the same trustee in bankruptcy.
The Employment Standards Officer assigned to the matter sent a letter to the estate of West care of its trustee in bankruptcy on April 24, 1998, advising that the Ministry had received representation or evidence that West may be a related or associated employer to Tobac and sought representations with respect to the issue. On June 12, 1998, the Officer sent a letter to Deborah Boswell advising her of the fact that an investigation was ongoing with respect to whether Tobac and West were related and placing her on notice that she may, as a director of West, be liable for some of the wage entitlements owed to former employees. The letter indicates that, in the event a finding is made that section 1