1474-00-ES All In One Canada Inc., Applicant v. Katherine Blais, Mark Shurvin and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 52006606

BEFORE: Harry Freedman, Vice‑Chair.

DECISION OF THE BOARD; September 26, 2000

1. This 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. 58394 dated June 30, 2000 issued by Employment Standards Officer Mark Shurvin. The application was filed with the Board on August 17, 2000. Section 68(3)(a) of the Act provides that an application for review of an order to pay must be made within 45 days after the date of the order. Thus, the last day for filing a timely application was August 14, 2000.

2. The applicant was advised by the Registrar by letter dated September 18, 2000 that it appeared that the application had not been filed in a timely manner and that the applicant could either seek an extension of time within which to make the application or advise the Board why the application was timely. The applicant, by letter to the Registrar dated September 19, 2000 advised that it had sent the application form and supporting documents by courier on August 14^th and the cheque was sent out “over-night versus straight delivery”. The applicant also enclosed a copy of the courier invoice to substantiate its assertions. The application form and material were sent to the Director of Employment Standards at the Employment Practices Branch of the Ministry of Labour instead of the Board. Those documents, according to the applicant’s notes on the invoice appear to have been sent on August 14^th and were received by the Employment Practices Branch on August 16^th. The cheque appears to have been sent on August 15^th according to the information filed by the applicant and was received by the Director on August 15^th. Based on the material filed by the applicant with its letter of September 19^th and the dates that the material was received by the Ministry of Labour, it is likely that the applicant first forwarded the cheque in payment of the Order to Pay to the Director on August 14, 2000 which was received by the Ministry of Labour on August 15^th and later sent the application form and supporting material on August 15^th which was received by the Ministry of Labour on August 16^th. The applicant does not explain why the application for review was not delivered directly to the Board. The applicant states: “We were not aware that the payment and application needed to be sent separately, and we apologize for that. It was strictly an administrative error by one of my staff.”

3. The applicant’s cheque in payment of the order to pay and the application form itself are dated August 14, 2000. The applicant also asserts that its president had spoken with Mr. Shurvin who the applicant says understood that the applicant would be “appealing” Mr. Shurvin’s decision. The applicant also responded promptly to the Registrar’s letter of September 18, 2000 about the timeliness of the application.

4. Section 68(4) of the Act permits the Board to extend the time for applying for a review if it considers it appropriate to do so. The application was filed on August 17, 2000, three days beyond the date for making a timely application. I note that the application was delivered to the Ministry of Labour and it was the Ministry of Labour that forwarded the application material to the Board with the Board having received it on August 17, 2000. The application was not made until it was delivered to the Board on August 17, 2000. Nevertheless, in view of the short time that has elapsed between the last day for making the application and the date when the application was filed, the applicant’s intention to have filed a timely application as evidenced by the date it prepared the application materials and cheque and the unlikely prejudice an extension of time would cause the other parties to the application when balanced against the prejudice to the applicant that would result in refusing to extend the time, the Board, pursuant to section 68 (4) of the Act, extends the time for making this application for review to August 17, 2000, the date upon which the application was received by the Board.

DISPOSITION

5. The time for making this application for review is hereby extended to August 17, 2000, the date upon which the application was filed with the Board.

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

“Harry Freedman”

for the Board