2034-00-ES Mar-Mac Holdings (St. Thomas) Ltd. o/a McDonald Mail Services, Applicant v. Melissa Boulerice and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 21 103972
BEFORE: Gail Misra, Vice‑Chair.
DECISION OF THE BOARD; December 7, 2000
The Board has received a request for reconsideration of its decision of November 8, 2000 in which it terminated this application for failure to pay the amount of the Order to Pay into trust.
However the applicant has still not paid the monies into trust as is required by section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c. 8. The applicant requests an extension in order to pay the funds into trust.
Section 68 of the Employment Standards Act as amended, provides in part, as follows:
(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;
(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67(2).
(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.
(5) In the case of an order that requires the payment of money to the Director in trust, the Board may not extend the time for applying for a review if the Director has paid the money to an employee or employees under subsection 72(2).
(6) An application for a review must be in writing.
(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.
Subsection 68(3) of the Employment Standards Act as amended, requires that an application for review be made within 45 days after the date of the order to pay. Subsection 68(7) states that an application for review of an order to pay is not properly made unless the monies are paid into trust.
The essence of those provisions is to require the payment into trust of those monies directed by an order to pay as part of the application for review. An application for review is not complete unless the monies have been paid into trust. The Board's available discretion under subsection 68(4) is to extend the time for applying for a review, not to extend the time for paying monies into trust. In order to exercise that discretion, the conditions precedent to making an application need to be met in order to determine whether the late filing of that application may be appropriate. It is inconsistent with the statute to effectively extend the 45 day time limit where a complete application for review has not yet been filed. Such an approach is also more consistent with the prohibition set out in subsection 68(5). Once an application is properly filed the Board may consider whether it is appropriate in the circumstances to extend the time for applying and allow the matter to proceed.
I therefore decline to reconsider the November 8, 2000 decision.
"Gail Misra"
for the Board