Ontario Labour Relations Board
File No.: 3412-99-ES Applicant: Veriana Verburg o/a The Port Colborne Shopper Responding Parties: Kim Wilson Piper, Employment Standards Officer and Ministry of Labour
Before: Harry Freedman, Vice-Chair.
Decision of the Board: February 24, 2000
Decision
1Meriana Verburg, the publisher and owner of the Port Colborne Shopper, was directed by Employment Standards Officer Kim Wilson Piper to pay wages to a former employee. Ms. Verburg disagrees with the Ms. Piper’s determination and, by letter addressed to the Registrar of the Board dated February 21, 2000, seeks to have the Board, in her words: “…grant a delayed appeal in this matter without my having to advance the amount of the order to pay”.
2It appears from the material filed that an Order to Pay was issued by the Employment Standards Officer under the Employment Standards Act, R. S. O. 1990, c. E.14, as amended (the “Act”), some time after November 5, 1999. The actual date of the Order to Pay is not indicated in the material. Ms. Verburg sets out in some detail the grounds she has for objecting to the decision made by the Ms. Piper. It is clear that Ms. Verburg seeks to bring an application for review of the Order to Pay under section 68 of the Act for the purpose of having the Board, under section 68 (20) of the Act, rescind the Order to Pay.
3An 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 provisions of section 68 of the Act that establish the application for review process state:
“(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;
(4) …the Board may extend the time for applying for a review if it considers it appropriate to do so.
(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 or provides the Director with an irrevocable letter of credit acceptable to the Director.”
While the Board may extend the time within which an application for review may be made, section 68 (7) of the Act is quite clear. The Board “shall not proceed with the review” and an application for review “is not properly made” unless the applicant either pays the amount required by the order to pay to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.
4Ms. Verburg seems to be of the view that the Board has the authority or discretion to waive the requirement imposed by section 68 (7) of the Act to pay the amount required by the order to pay to the Director. There is nothing in the Act that confers that kind of authority on the Board. It is the statute that imposes that obligation on an employer who wishes to challenge an order to pay and the Board is prohibited by the statute from proceeding until that obligation is met.
5Ms. Verburg in her letter to the Registrar appears to recognize that she has an obligation to pay the amount required by the order to pay before proceeding with an application for review. She stated in her letter: “The appeal procedure requires that the employer, as though he or she were guilty, forward the amount of the claim plus an administration fee, to validate the appeal.” She also asserts that it is impossible for her to do so. At the conclusion of her letter, she requests that the Board “arrange to have the enforcement efforts stayed immediately during this period of consideration….” In the same way that the Board does not have the power or authority to proceed with an application unless the amount required by the order to pay is remitted to the Director (or a letter of credit is arranged which is acceptable to the Director) by reason of section 68 (7) of the Act, the Board does not have the power to order a stay of the enforcement processes used by the Ministry of Labour to collect wages that have been found by an employment standards officer to be owing to an employee. That is, in my view, up to officials within the Ministry of Labour.
6Ms. Verburg’s requests contained in her letter of February 21, 2000 are dismissed because the Board does not have the jurisdiction to grant the remedies she seeks.
7If Ms. Verburg wishes to have the order to pay that was issued against her reviewed by the Board, she must comply with the requirements established by the Act and the Board’s Rules of Procedure for making an application for review of an order to pay. Should Ms. Verburg does not make the application for review in accordance with the Act and the Board’s Rules of Procedure on or before March 27, 2000, this proceeding will be deemed terminated at that time. Should she make an application for review on or before that date, the Board will consider, at the time her application is made, whether her application is timely. If her application is not made within the time stipulated by section 68 (3) (a) of the Act, the Board will determine at that point whether it is appropriate to extend the time for applying for review pursuant to section 68 (4) of the Act.
8The Registrar is directed to provide Ms. Verburg with a copy of an application form on which to file an application for review and a copy of Information Bulletin No. 23 (Application for Review under the Employment Standards Act).
9This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board