Canadian Linen and Uniform Service Company Ltd. v. Dale Cowell et al., 2000 CanLII 7130

Canadian Linen and Uniform Service Company Ltd. v. Dale Cowell et al. and Ministry of Labour

3123-98-ES Canadian Linen and Uniform Service Company Ltd., Applicant v. Dale Cowell et al. and Ministry of Labour, Responding Parties.

3389-98-ES Richard Appleton, Applicant v. Canadian Linen and Uniform Service Company Ltd. and Ministry of Labour, Responding Parties.

3402-98-ES Brian Greene, Applicant v. Canadian Linen and Uniform Service Company Ltd. and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 32004267

BEFORE: Mary Ellen Cummings, Alternate Chair.

APPEARANCES: Stephen F. Wilson, Erin R. Kuzz and Bob Kupchak for Canadian Linen and Uniform Service Company Ltd., H. Kopyto for Richard Appleton and Brian Greene; Stephen Mason for the Ministry of Labour.

DECISION OF THE BOARD; October 26, 2000

1The correct name of the responding party is "Canadian Linen and Uniform Service Company Ltd." and the Board has amended the style of cause accordingly.

2These are three applications for review of an Officer's Order to Pay, issued on October 30, 1998, pursuant to the Employment Standards Act (the Act). The Order to Pay is in the amount of $612,501.46, with an administrative fee of $61.250.15. Two employees seek review on the basis that the Officer should have ordered more with respect to their claims. Canadian Linen and Uniform Service Company Ltd. ("Canadian Linen") seeks review of the Order to Pay in its entirety, on a number of basis. The Officer found that Canadian Linen did not keep accurate records of the hours its drivers worked. Moreover, the Officer concluded that Canadian Linen failed to compensate drivers for overtime worked; failed to give an eating period and failed to pay proper wages for hours worked on public holidays. The Officer made an assessment with respect to 109 employees or former employees, in varying amounts.

3Canadian Linen has raised a number of preliminary issues. The first is that the Order to pay issued on October 30, 1998 is untimely. The relevant legislative provisions are sections 82.1(1) and 82.4:

82.1(1) No proceeding under the Act shall be commenced more than two years after the facts upon which the proceeding is based first came to the knowledge of the Director.

82.4(1) The facts upon which a proceeding or prosecution is based shall be deemed to have first come to the knowledge of the Director on the following date in the following circumstances:

1. In the case of an employee who files a complaint under this Act, the date on which the Ministry receives the complaint in a written or electronic form approved by the Director.

2. In the case of an employee whose entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another employee, the date on which the employee's entitlement comes to the Officer's attention.

4At the risk of oversimplifying, at issue is when did the facts on which this Order to Pay is based first come to the attention of the Director. Did the facts with respect to all employees come to the attention of the Director when the first claim was filed, or only the facts with respect to the first claimant, William Cuthill? In other words, can the employees on whose behalf the Order to Pay was issued rely on subsection 82.4(1) 2 and subsequent events, to render the Order to Pay timely.

5Counsel for the Ministry of Labour (the "Ministry") appeared on behalf of the Employment Standards Officer. Canadian Linen was represented by counsel and Mr. Greene and Mr. Appleton appeared with their legal representative. None of the other employees appeared.

6The substantive dispute centres around Canadian Linen's practices with respect to recording and paying for hours worked. Canadian Linen's drivers are responsible for delivering linens over a particular route. A tachometer situated in the truck, records in detail the movements of the truck over the day. The employer relies exclusively on the "tach" records to determine hours worked, a practice explicitly acknowledged in the collective agreement to which the employees' are bound. It is the position of a number of employees, and ultimately, the Ministry of Labour that the tach records do not record all the time worked and are not an appropriate substitute for tracking hours worked in a day or week. Again, at the risk of oversimplifying matters, the Employment Standards Branch of the Ministry of Labour undertook an investigation, reviewed tach records for a number (but by no means all) of the employees, and issued an Order to Pay that, essentially added one hour to the tach time for every day worked for 109 of the approximately 700 employees who work in Ontario. I will have more to say about the testimony of the Officer, Lesia Fadalti, later, but by way of background, she testified that the Ministry did not investigate the circumstances of other employees because it simply ran out of time and the investigation was time-consuming, laborious, and hampered by the limited resources of the Ministry, as well as the employer's methods of retaining information. To be clear, though, there is no allegation that the employer hampered the investigation or was uncooperative. There is, in part, a philosophical difference between the employer and the Ministry about what is required to meet the record-keeping obligations of section 11. Section 11 provides:

11. (1) An employer shall,

(a) make and keep in Ontario or in a place out of Ontario authorized by the Director for a period of twenty-four months after work is performed or services are supplied by an employee complete and accurate records in respect of the employee showing,

(i) the employee's name and address,

(ii) the employee's date of birth, if the employee is a student under eighteen years of age,

(iii) the number of hours worked by the employee in each day and week,

(iv) the employee's wage rate and gross earnings,

(v) the amount of each deduction from the wages of the employee and the purpose for which each deduction is made,

(vi) any living allowance or other payment to which the employee is entitled,

(vii) the net amount of money being paid to the employee, and

(viii) any documents or certificates relating to pregnancy leave under Part XI; and

(b) make and keep in Ontario or in a place out of Ontario authorized by the Director for a period of five years after work is performed by an employee complete and accurate records in respect of the employee showing,

(i) the employee's name and address,

(ii) the date of commencement of employment and the anniversary date thereof, and

(iii) the employee's wages during each pay period and the vacations with pay or payment under section 30.

(2) Subclause (1) (a) (iii) does not apply in respect of the salaried employees of an employer who perform work of a clerical or administrative nature where the employer makes and keeps a record showing the number of hours worked by such employees in excess of eight hours a day and forty-four hours a week.

7It is useful to start by briefly outlining the positions of the parties. Canadian Linen maintains that the initial claim of William Cuthill (the Cuthill claim) made on June 12, 1996 furnished the facts upon which this proceeding is based, with the result that the Order to Pay of October 30, 1998 is untimely, because it was issued more than 2 years after the facts came to the attention of the Director. It is the position of the Ministry, Richard Appleton and Brian Greene, that the Cuthill claim did not bring to the knowledge of the Director, the breadth and depth of the problem. That only came later; in November of 1996 as a result of the fact-finding meeting conducted in the Cuthill claim, and as a result of a complaint filed by the bargaining agent of the employees at Canadian Linen. It is worth noting at this time, that the union later withdrew the complaint. The bargaining agent was given notice of these proceedings and a specific direction to indicate if it intended to participate. The Board received no response and the union did not appear.

The evidence

8Perhaps the most important piece of evidence is the text of the Cuthill claim. I will set out all of it. Mr. Cuthill completed a four page form, to which is attached an additional sheet. Mr. Cuthill did not testify, but it appears that he prepared an additional sheet of paper which someone in the intake area of the Kitchener office, where he made his claim, included with the 4 page form.

9Mr. Cuthill first identified himself, his employer, his position, and his bargaining agent. In answer to the question "are your hours of work regular?", he answered "No", with the explanation "Must work until deliveries on route are completed each day".

10On the page where claimants are asked to detail their claim, Mr. Cuthill wrote:

In the 8 years and 8 months that I have been an employee of Canadian Linen, I have never been paid overtime. With the exception of occasional special deliveries when I use my own personal vehicle and complete the delivery on my way home. The company does not live up to its agreement dated March 8, 1993 between Canadian Linen Supply and the union. Which states "Overtime at the rate of time and one-half the employee's basic hourly rate shall be paid for all work performed in excess of forty (40) hours per week" (see attached copy of agreement). On March 8, 1996 I filed a grievance with my union regarding an unjust suspension. The union fought for lost wages and to have my personnel file cleared. During the grievance the union requested overtime as well. The outcome: lost wages were paid. However my personnel file was not cleared and overtime wages were denied (see attached copy of grievance). During various interaction with the Service Manager (Gary Finlay) and General Manager my job as well as other drivers has been verbally threatened, "You have a family and a mortgage to pay…jobs are hard to find".

Drivers are subjected to mental and emotional abuse as well. It has become common-place for drivers to be yelled at and sworn at during sales meetings. Along with the company's refusal to pay overtime, this is mis-treatment of human beings and a total lack of concerns for human rights.

Please note: many drivers including myself cannot take lunch breaks nor coffee breaks as the way the company has scheduled the route does not permit time for breaks.

11On the extra sheet of paper, Mr. Cuthill wrote:

Anonymous claim still employed by company [in large, bold letters]

Please note:

At the moment all drivers are concerned mainly that overtime begins to be paid immediately. At a future date, we may choose to file a claim(s) for back wages.

Thank you for your assistance.

12Mr. Cuthill's claim was settled. It is common ground among the parties that at the time Mr. Cuthill's claim was settled, Canadian Linen had not seen his claim form. The claim form was only recently produced by the Ministry to the employer as a result of a production order of the Board. It is also common ground that when Mr. Cuthill's complaint was settled, the employer did not know that other employees had filed complaints. The employer was not advised for 10 months. The reasons why that information was not disclosed in a timely way is not relevant to this preliminary issue. It is also agreed that the Narrative to the Order to Pay mentions Mr. Cuthill's complaint and its settlement.

13In any event, I heard evidence about what went on at the Cuthill fact-finding on November 22, 1996 from the Officer, Lesia Fadalti; Mr. Appleton, who was there as a witness for Mr. Cuthill; and from then counsel to Canadian Linen, Elizabeth Keenan. Ms. Keenan was called on a point that, by the end of the hearing of the preliminary issue, has become irrelevant, so I do not propose to review her evidence.

14On the issue of when facts upon which the proceeding is based first came to the knowledge of the Director, it is the testimony of Ms. Fadalti that is the most important because it is the knowledge of Ms. Fadalti that is deemed to be the knowledge of the Director. I do not mean to suggest that Ms. Fadalti's evidence is determinative, only that the testimony of Ms. Keenan and Mr. Appleton is not particularly helpful on this point.

15Ms. Fadalti testified that although Mr. Cuthill made his complaint in June of 1996 and it was transferred to her office in July 1996, it was not assigned to her until September 1996. She said that her first step was to convene a fact-finding meeting which took place on November 26, 1996. Ms. Fadalti testified that going into the fact-finding meeting, she was only investigating the complaint of Mr. Cuthill. He had kept records of the hours he worked, and she expected the employer to arrive with its records of hours worked. In cross-examination, Ms. Fadalti testified that although Mr. Cuthill's complaint referred to others, she was focused on what was important to him, getting him money. Ms. Fadalti testified that she had asked the employer to bring records of Mr. Cuthill's hours. In the course of the fact-finding meeting, Ms. Fadalti learned from the company's representative that it did not keep records of hours worked in a day or in week, but paid each employee for a 40 hour week and relied on the tach readings and audits of the length of time necessary to complete a particular route. She said that the union representative, who also attended the fact finding, told her that there had been earlier complaints about non-payment of overtime. At the same time, Ms. Fadalti was told that an arbitrator's award had upheld the fairness of the employer's method of establishing a 40 hour work week, relying on both tach cards and timing of the routes.

16Ms. Fadalti testified that when the employer's representative told her that it did not keep daily and weekly records of hours worked, in her mind, the investigation expanded to employees beyond Mr. Cuthill. Ms. Fadalti said that she concluded from the information gained at the fact finding that hours over 40 in a week were not being tracked, and that there was a good possibility others were working overtime for which they were not being paid.

17In response to the question about when she became aware of individual entitlements, Ms. Fadalti testified that it was very late in the investigation, after she had reviewed the individual tach cards. She testified, however, that at the fact-finding meeting she realized that there was a violation of the Act in respect of other employees because the employer had admitted that it was not keeping daily and weekly records of hours worked. She said that when an employer tells her that people are only paid for 40 hours and hours worked are not tracked daily and weekly, it raises questions about how employers deal with employees in general.

18The only other evidence that it germane to the issue is the contents of a letter sent to the Employment Standards Branch on November 28, 1996 by counsel to the trade union. After identifying himself, and setting out the workplace locations, counsel wrote:

On behalf of our client, we wish to register a complaint that employees, particularly CSR [Customer Service Representatives] drivers, who are working at those locations, have been consistently required to work overtime without receiving an overtime rate of pay as required by the Employment Standards Act.

We would ask your office to investigate this matter in order to ensure that all of the employees are properly compensated.

Analysis and Decision

19Rather than set out the arguments of the parties separately, I will incorporate them into my analysis and reasoning.

20The leading cases in this area are Miller Transit Limited (ES 2962, December 30, 1991, McCamus); Re Grant Development Corp. (ESC 97-63, June 3, 1997, Randall) and General Motors of Canada Ltd. ([1998] O.E.S.A.D. No. 198, January 13, 1998, MacDowell). All three decision determined when facts come to the knowledge of the Director for the purpose of determining the statutory time limits.

21The facts in Miller Transit are remarkably similar to the facts in the case before me. A transit driver made a complaint that transit drivers were not being paid overtime. The claimant requested anonymity and indicated that other drivers were similarly affected. The Officer conducted the investigation as one concerning transit drivers, in general. The employer ultimately agreed to change its overtime pay practices but there remained a dispute about how far back the drivers could go to seek compensation. That time limit is also determined by the dates the facts that form the basis of the proceeding come to the attention of the Director.

22The referee determined that "facts" should be given a narrow meaning:

In response to the Employer's submissions, counsel for the Ministry has urged that the event which triggers the two limitation periods in section 63 [now section 82] is the awareness of the Director that an alleged contravention of the Act is occurring. On February 2, 1989, it was in fact the case that the employer was conducting its affairs in violation of the Act. The employee who complained on his own behalf and on behalf of the other transit drivers drew this to the attention of the Director on that date. Under section 63(1) the Director then has two years within which to initiate a proceeding or prosecution. Under section 63(2) the employee's claim for arrears is limited to the preceding two years.

23In rejecting the argument that knowledge of the facts should be interpreted to mean all of the detailed facts, the referee reasoned that such an interpretation was open to manipulation by both the Ministry and the employer. An uncooperative employer could reduce its own liability, while a dilatory investigation by the Ministry would extend the limitation period, contrary to the interests of employers. Actual knowledge of all the facts would also, the referee wrote, be a difficult standard to apply, because it would not often be clear when that point has been reached.

24The themes in Miller Transit were picked up in Re Grant Development. An employee (Loranger) filed a claim for termination and severance pay, which for unclear reasons was "shelved" by the Ministry. A further complaint (Seymour) came forward, raising similar issues to the first. The Ministry revived the first, investigated the new ones and conducted an audit with respect to all similarly situated employees. The Order to Pay for Seymour, Loranger and employees who had not filed claims was issued within 2 years of the Seymour complaint but more than two years after the Loranger claim was made. And the referee found that the entitlements of the non-claiming employees had arisen more than 2 years before the Ministry began its investigation. The employer successfully argued that the Order to Pay was untimely. At paragraph 32 to 35, the referee wrote:

The starting point for an analysis of the myriad issues raised in this matter is obviously the Divisional Court in Gerber [Gerber Garment Technology (1994) 6 C.C.E.L. (2d) 44]. While the case was primarily about the applicability of the common law "post box rule", it now stands for two simple propositions in a section 68 proceeding. First, the facts upon which the proceeding is based come to the attention of the Director when the claim is filed with the Ministry. This judicially endorsed view is also Ministry policy. As importantly, it is also a "bright line"; it is a simple formal inquiry that does away with a fact-based one concerned with the sufficiency of facts as set out in the claim form. Put differently, even the most skeletal of facts in a claim are deemed to be sufficient for triggering the time-limits in section 82 [now 84].

The second proposition is that in a section 68 [sic], the proceeding commences with the issuance of the Order to Pay. This view, which is also Ministry policy, is attractive for the same reasons of form and simplicity.

On the basis of those two propositions, I can only find that Mr. Loranger's claim is out of time; through absolutely no fault of his own, the Order to Pay was issued more that 2 years after he filed his claim and it, therefore, offends ss. 82(1)[now 82.1(1)]. Whatever view I take of the Ministry's position in this matter generally and of the concept of sheltering, specifically, I am convinced that the Ministry cannot shelter earlier claims under a subsequent one.

The Ministry is also attempting to save the 16 non-filing Claimants by extending the logic of the formal analysis in Gerber to the facts before me. Essentially, it argues that this multi-claimant proceeding was triggered by the Seymour claim, which appears, in fact, to be an accurate characterization of events. Because it is one proceeding, it should have one triggering date. While there is a certain attraction to the argument- it appears to have the same formal simplicity as the to propositions set out above- I am not persuaded for many of the reasons set out in the Applicants' argument. Put simply, the dates are too subject to gerry mandering: both in terms of the claim chosen and the number of Orders to Pay issued; there is no good reason, for instance, why the Loranger claim should not have been the triggering date for this proceeding. Moreover, aside from Mr. Klein's reading of section 82 [now 84], fuelled by the elision of "the proceeding" with the "Order to Pay", there is nothing in the statute which supports the concept of sheltering proposed by the Ministry. Having said that, I should point out that I agree entirely with the reasons and result in Miller Transit. Where the originating claim identifies an employer, an alleged systemic violation and a defined group of affected employees, all claimants in the group can shelter under that claim.

25In the General Motors case, the referee began by placing the limitation period issues within the context of legislation that it intended to be remedial and work as an informal and efficient collection system. To that end, the referee wrote at paragraph 101:

… The administration of the statute (i.e. the assertion of rights by employee and any follow-up by the Ministry) would benefit from a clear benchmark- a so-called "bright line test" so that everyone will know how to count time. Where rights can be lost with the passage of time, it is important to have a clear reference point.

26After citing Miller Transit and Grant Development, the referee adopts their approach, not only because it is the dominant one in the case law, but because it provides the "bright line" test that facilitates the administration of the statute and balances the rights of employers and employees. He concludes;

Accordingly, so long as the application to the Ministry identifies the basic nature or central assertions of the claim, the clock starts running. It is not necessary that the Director "know" the detailed facts that might become evident at the end of the investigation, or that might be necessary to calculate the precise amount owing.

27Counsel for the Ministry submitted that this case law is no longer relevant because of the statutory amendments. At the time these cases were decided, he noted, section 82.4(1) 2 was not available. Although set out above, I will repeat it:

In the case of an employee whose entitlement under the Act comes to the knowledge of an employment standards officer when he or she is investigating the complaint of another employee, the date on which the employee's entitlement comes to the Officer's attention.

28Counsel for Canadian Linen argued that this provision should not be applied in the circumstances of this case. This amendment came into force on December 1, 1996. Counsel for Canadian Linen submitted that substantive amendments, including limitation periods, cannot be applied retrospectively, except to the extent spelled out in statute. An example of such an explicit statement is the transition provision in section 82.3(6). It allows employees to collect monies that became due up to two years before the facts came to the knowledge of the Director (rather than due no more than 6 months before, the new provisions) provided the knowledge comes to the Director within 60 days of proclamation of the amendment. Conversely, he argued, there is no transitional provision for 82.4(1) 2. It is only available with respect to claims filed after December 1, 1996. Otherwise, counsel argued, I would be giving retrospective effect to a new limitation period, to the detriment of the employer. While Canadian Linen's argument is compelling, I do not have to decide the matter because I conclude that section 82.4(1) 2 is not relevant to the case before me. In my view, the amendment does not assist in circumstances where the initial claim identifies a defined group of employees and an alleged systemic violation. In other words, where the initial claim, rather than the subsequent investigation, brought the essential nature of the dispute to the attention of the Officer I am satisfied then, that the Miller Transit line of cases continues to be relevant for those.

29Mr. Greene and Mr. Appleton's representatives argued that it was unfair to his clients to treat the Cuthill claim as "starting the clock" for his clients' claims when they had no knowledge of Cuthill's actions, and had certainly given him no authority to represent them. But with respect, that is not the principle that Miller Transit stands for. The cases have tried to set a "bright line" test to establish the very important point at which we start counting how long the Employment Standards Branch has to investigate before the claim becomes stale, and how far back an employee can seek unpaid wages. In a similar vein, Mr. Greene's and Mr. Appleton's representative argued that Mr. Cuthill did not file a "group claim" but only raised general issues, that did not become particular to Mr. Greene and Mr. Appleton until they filed their complaints. Again, with respect, that argument misconstrues the principles in Miller Transit and the cases that followed. The question is not whether a claimant specifically wrote that he or she was making a group complaint, but whether, as the referee put it in Re Grant Development, whether the originating claim identifies an employer, an alleged systemic violation and a defined group of affected employees. In my view, the Cuthill complaint did just that: it identified the employer; an alleged systemic violation of the overtime and break provisions of the Act, and a defined group, the drivers. In fact, the additional sheet of paper Mr. Cuthill added to his complaint confirms, that the concerns Mr. Cuthill raised on the Ministry form affected all the drivers. I will repeat what Mr. Cuthill wrote:

Anonymous claim still employed by company [in large, bold letters]

Please note:

At the moment all drivers are concerned mainly that overtime begins to be paid immediately. At a future date, we may choose to file a claim(s) for back wages.

Thank you for your assistance.

30After hearing the evidence, counsel for the Ministry argued that it was the union's complaint on November 28, 1996 that should be considered the date when the facts upon this proceeding was based came to the attention of the Director. Counsel noted that the status of the union as bargaining agent was satisfactory to indicate that it represented all the drivers, and hence the Officer could expand her inquiry and investigate the issues for all the employees. But as I set out above, the relevant question is not when (or whether) a claimant, be it an individual or a group, has the authority to represent others, but whether the initial claim provides sufficient facts to identify the employer, the group of affected employees and the basic nature or central assertions of the claim. It is also critical to remember that the "clock" does not start running from the time that a claim is made; an Officer does not have to wait for a claim to take the jurisdiction to investigate. No doubt that is one of the reasons why the limitation period depends on when the information came to the attention of the Director, not the filing of a claim.

31Viewed from that perspective, the union's letter provides less information about the concern than did the Cuthill complaint. Or put another way, the union's letter provided no information that the Ministry did not already have. Consequently, I reject the argument that the union's letter of November 26, 1996 started the clock running.

32In the alternative, counsel for the Ministry argued on the basis of Ms. Fadalti's evidence, that it was only at the fact-finding on November 22, 1996 that she appreciated she was investigating more than Mr. Cuthill's individual claim. It was the employer's acknowledgement that it was not recording hours worked in a day and a week that caused Ms. Fadalti to conclude that there had been a violation of the Act, with the potential that other employees had worked overtime without pay. That may well have been how Ms. Fadalti proceeded. But the case law does not require that an Officer be satisfied that there is a breach of the Act before the "clock" starts to run. That approach was expressly rejected in Miller Transit. I mean no disrespect or criticism of Ms. Fadalti. However, as counsel for Canadian Linen noted, the law in the area has been well-settled for some time, and in those decisions, it has often been the Ministry that has urged a "bright line" test that is not capable of manipulation. For that reason, it is the content of the initial claim that is most significant.

33Counsel for the Ministry submitted that it would be unreasonable to require the Ministry to investigate everything that an individual sets out in his or her complaint. And in this case, counsel argued, the two lines in which Cuthill raises issues about other drivers cannot be interpreted as enough to start the clock ticking with respect to the more than 700 employees of Canadian Linen in Ontario.

34I agree that the Ministry is not obliged to investigate every mention of any other employee that is raised in a claim. But, at the risk of repetition, the leading case law establishes that if the initial claimant identifies a group of affected individuals, the Ministry has two years from the date of that claim to investigate the issues raised. The Ministry is not obliged to investigate, but if it does so, it must do it, and issue an Order to pay where appropriate, within two years.

35I also agree with counsel for Canadian Linen that it is irrelevant that the Cuthill matter was settled, and that Cuthill was not a beneficiary of the Order to Pay. Again, the central issue is whether the Cuthill claim provided the facts upon which the Order to Pay is based. Mr. Greene's and Mr. Applet's representative submitted that the gap between the settlement of the Cuthill claim and the investigation of further claims is indicative that the Cuthill claim was not significant to what followed. Ms. Fadalti's evidence is inconsistent with this argument, and in any event, my focus must be on the relationship between the original complaint and the Order to Pay. I am not looking at how the Ministry managed the investigation; I am trying simply to determine a date when a limitation period starts to run. Did the claim provide the facts on which the Order to Pay is based?

36I conclude that it did. Mr. Cuthill identified the employer, the group of affected employees and the main issue, non-payment of overtime on a systemic basis. That information meets the test set out in Miller Transit and the cases following; Mr. Cuthill outlined the basic nature and central assertions on June 12, 1996. The Ministry had 2 years from that date to investigate the issues and determine whether or not to issue an Order to Pay.

37I recognize that this result means that the Order to Pay of October 30, 1998 will be revoked and that 109 employees, including Mr. Appleton and Mr. Greene, who filed their own complaints, will not be able to argue about the merits of their claim. However, the limitation periods in the Act are intended to strike some balance between the rights of employers and employees. Having regard to the detail provided in Mr. Cuthill's initial claim, it is not unreasonable to expect the Ministry to have completed its investigation within two years.

DISPOSITION

38For the reasons set above, I find that the Order to Pay issued on October 30, 1998 is untimely and therefore, I revoke it. As a result, I direct that the monies being held in trust, any interest earned thereon and the administration fee should be returned by the Director to Canadian Linen as soon as practical.

"Mary Ellen Cummings"

for the Board