1154-00-ES 1354493 Ontario Limited o/a The Pool Guy, Applicant v. Barry McIsaac, Bernie Marcoux, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 52006639
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; August 14, 2000
1On March 31, 2000, Employment Standards Officer Bernie Marcoux issued Order to Pay No. 58336 (the “Order”) against the applicant. By letter dated June 30, 2000, the applicant wrote a letter to the Ministry of Labour offices in Hamilton which appeared to object to the Order and set out the reasons for that objection. The applicant also enclosed a cheque in the amount of $25.00 with that letter. The Ministry of Labour offices forwarded that letter to the Board, which received it on July 12, 2000. The Registrar treated the letter as an attempt to make an application under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of the Order.
2The Registrar, by letter to the applicant dated July 19, 2000 advised the applicant that the application appeared untimely and that to make an application for review of an order to pay, the amount of the order must be paid to the Director in trust.
3The applicant, by letter to the Registrar dated July 28, 2000 set out the reasons why the Order was not properly issued. The applicant also claims that he was not aware of the Order until a collection agent told him about the existence of the Order. The applicant suggests that he had not been properly served with the Order and therefore the time for filing the application has not yet started.
4The time for filing an application for review of an order to pay is fixed by section 68 3 (a) of the Act. That section provides:
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;
Thus, the time for making the application is based, not on when the applicant receives the order, but rather on date of the order. It is clear that the applicant became aware of the Order by June 30, 2000. The Order was dated March 31, 2000. Thus, the time for making an application has long expired. Nevertheless, section 68 (4) of the Act permits the Board to extend the time for making the application. That section provides, in part:
…the Board may extend the time for applying for a review if it considers it appropriate to do so
If the applicant does intend on making an application for review of the Order, the applicant must also have regard to section 68 (7) of the Act which provides:
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.
5There is no proper application for review of the Order before the Board as of the date of this decision. If the applicant does wish to proceed with this matter, an application for review in the correct form must be filed with the Board, the requisite payment must be made to the Director and an extension of time for making the application must be requested accompanied by the reasons for seeking the extension within 15 days of the date of this decision. The Board, upon receiving that material by August 29, 2000 will determine whether it should exercise its discretion under section 68 (4) of the Act to extend the time for making the application.
6If the material is not filed and the payment is not made on or before August 29, 2000 this application will be dismissed and it may be dismissed in any event should the Board decide that it is not appropriate to exercise its discretion to extend the time for making the application.
7This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board