Equifax Canada Inc. v. Sandeep Bandhu
3048-99-ES Equifax Canada Inc., Applicant v. Sandeep Bandhu, Anthony Pierre, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 34001943
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; March 20, 2000
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. 48899 dated December 1, 1999 issued by Employment Standards Officer Anthony Pierre. The applicant filed a timely application for review and made the requisite payment to the Director in trust as required by section 68 (7) of the Act. By letter dated February 15, 2000, the employee on behalf of whom the Order to Pay was issued advised the Board that he was withdrawing the claim he had filed against the applicant. The applicant in a letter to the Board dated February 17, 2000 requested the return of the funds paid to the Director because the employee’s claim had been settled.
2The Board, by decision in this matter dated February 21, 2000 interpreted what the applicant was seeking from the Board as a request for an order allowing its application for review in its entirety, with the consent of the claimant employee, and a return to it of the entire payment of $2668.82 it had made to the Director in trust. The Board, at paragraph 4 of its decision, stated:
The Board is satisfied in the circumstances before it, based on the material filed, that the claimant no longer has any interest in this matter and would therefore be content to have the application for review allowed in its entirety with the payment made by the applicant returned to it. The Board is of the view that this matter may be dealt with in writing at this stage to determine whether any party is opposed to having the application allowed and directing the return to the applicant of the payment it had made to the Director.
Counsel for the applicant, by letter to the Board dated February 25, 2000, in response to the Board’s direction to make submissions with respect to how the Board should deal with this matter stated:
…we respectfully submit that there would be no purpose served in proceeding with our client’s Application for Review. As such, we submit that our client should be permitted to discontinue its Application for Review and as such all monies paid to the Director…in connection therewith, be returned.
Subsequently, counsel for the applicant advised the Board that he wished to clarify his earlier request to discontinue the application (which, of course, would have resulted in the monies paid to the Director in trust being distributed to the employee and the administration costs being retained in accordance with the Order to Pay) by stating:
…our client recently negotiated a “global settlement” of all issues in dispute with Mr. Bandhu. [the claimant employee] As such, we respectfully submit that our client’s Application for Review be allowed and, as such, an Order should be issued by the Board directing that all monies paid to the Director, Employment Standards Branch, In Trust, be returned to the Applicant, Equifax Canada Inc. In addition, we submit that the Board should direct that as a result of the foregoing, a hearing into the merits of the Application for Review would serve no purpose, and is therefore no longer required.
3Counsel for the Ministry of Labour and the Employment Standards Officer advised the Board by letter dated March 8 that the Ministry was opposed to the return of the administration costs to the applicant. Counsel said nothing about the return of the wages that were paid to the Director and therefore the Board assumes that the Ministry and the Employment Standards Officer are content to have the Board make an order requiring the Director to return $2281.32 to the applicant with the administration fee of $387.05 retained by the Director and paid to the Consolidated Revenue Fund. Counsel’s position in its entirety on this issue was set out in the following terms:
The Ministry takes the position that the employer had withdrawn its appeal and that the Order to Pay was not rescinded. Under these circumstances the Board does not have the jurisdiction to return the Administration fee.
Neither the applicant nor its counsel expressly stated that its application for review was withdrawn. It was the claimant employee, Sandeep Bandhu who has withdrawn his employment standards claim which gave rise to the Order to Pay and to this application to review that Order to Pay. Counsel for the applicant requested that the Board permit his client “discontinue its Application for Review” and subsequently clarified what he meant when he advised the Board that his client wanted the application for review allowed in its entirety because the employee affected by the Order to Pay wanted to withdraw his claim under the Act. Under these circumstances, there is no basis, in my view, to conclude that the application was withdrawn by the employer.
4The Board now has before it an application for review in which the affected employee has abandoned any claim to payment through the Order to Pay, the Ministry and the Employment Standards Officer do not appear to oppose the return of the monies paid by the applicant in respect of wages to it and the applicant seeks to have its application allowed. The opposition to allowing the application as requested by the applicant rests entirely upon the assertion by counsel for the Ministry that the Board does not have the jurisdiction to order the return of the administration fee. The absence of jurisdiction appears to be premised on the assumption that the applicant had withdrawn its application.
5The applicant suggests, not unreasonably, that no useful purpose would be served in listing this application for hearing in these circumstances. While it would appear that this application does not warrant the expenditure of the parties’ and the Board’s resources to schedule and attend a hearing, section 68 (8) of the Act is quite clear. That subsection provides:
Subject to the rules under subsection (12), the Board shall hold a hearing for the purposes of the review.
There have been no rules promulgated under section 68 (12) of the Act that would permit the Board to allow this application for review without a hearing and, in any event, I have considerable doubt about the Board’s power to make a rule that would permit the Board to dispense with a hearing in this situation. Of course, if all of the parties affected agreed to waive the hearing, then the Board would be able to proceed to dispose of this application without a hearing. It is clear that both the applicant and the claimant are content to have the Board allow the application without a hearing, provided all of the money paid by the applicant to the Director is returned to the applicant. The Ministry and the Employment Standards Officer also appear to be unopposed to the Director returning to the applicant the amount paid by the applicant less the administration costs of $387.05.
6In order to expedite the resolution of this matter, I am satisfied that it is appropriate to make an interim order pursuant to section 16.1 (1) of the Statutory Powers Procedure Act, R. S. O. 1990, c. S. 22, as amended, requiring the Director to return to the applicant the sum of $2281.32, being the difference between the amount paid pursuant to the order to pay ($2668.82) and the administration costs of $387.05 since there does not appear to be any dispute over the applicant’s entitlement to repayment of that amount. While I am satisfied that the Board has the jurisdiction under sections 65, 68 (19) and 68 (20) of the Act to require the Director to return the administrative costs to a successful employer if an application for review is allowed (see Continental Poultry Equipment Limited, [1999] OLRB Rep. Sept./Oct. 808), the application for review in this case cannot be allowed without a hearing by reason of section 68 (8) of the Act unless the Ministry of Labour and the Employment Standards Officer also waive their right to a hearing of the application. If the applicant wishes to pursue its claim for the return of the administration costs it has paid to the Director by having the Board conduct a hearing to determine whether to allow its application in its entirety, it must advise the Board within 15 days of the date of this decision that it wishes to have this matter listed for hearing. If no request is received to list this application for a hearing within 15 days of the date of this decision, the parties will be deemed to have consented to the Board dismissing the application for review in respect of the administration costs paid by the applicant to the Director.
DISPOSITION
7The Board, by way of an interim order, orders the Director to remit to the applicant as soon as practicable the sum of $2,281.32 together with accrued interest.
8This panel of the Board remains seized with this matter.
“Harry Freedman”
for the Board