1333518 Ontario Inc. o/a Casa D’or Restaurant v. Julie DePatie, Josephine Darou, Employment Standards Officer and Ministry of Labour
File No.: 3215-99-ES Date: February 25, 2000
Before: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD
1The applicant purported to file 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. 54330 dated January 20, 2000 issued by Employment Standards Officer Josephine Darou. The purported application was filed with the Board on the correct form on February 1, 2000.
2The applicant also sent a copy of the Order to Pay with his application and on the portion of the order headed “payment information slip” indicated “nil” in the space in which the applicant is required to state the amount enclosed. The Order to Pay makes clear that the amount of the order must be paid in order to bring the application for review before the Board. Furthermore, the application form completed by the applicant states “You must either pay the amount ordered to the Director of Employment Standards, who will hold the money in trust and issue a receipt, or provide an irrevocable letter of credit acceptable to the Director.” The form also states “Your application will not be processed without proof of payment from the Director of Employment Standards.”
3When the Board’s Registrar received the purported application in this matter, he requested the applicant, by letter dated February 3, 2000, to provide a copy of the receipt or proof of payment of the Order to Pay. The letter goes on to state “Until the receipt is provided the application will be treated as incomplete and will not be processed further. Unless the Board grants an extension of time for making the application in accordance with Section 68 (4), payment made more than 45 days after the date of the Order will be untimely and the application will be dismissed.”
4The Order to Pay was dated January 20, 2000. The last day for making a timely application for review is March 6, 2000. The applicant has not as yet filed a proof of payment of the Order to Pay and it appears that he has not made the payment as of the date of this decision.
5An 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 provisions of section 68 of the Act that establish the application for review process provide:
“(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;
(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.
6While the applicant had filed the proper form to make an application for review, the applicant has not yet made the payment required by the Act in order for this application for review to proceed.
7If the applicant fails to either make the required payment or provide the Director with a new letter of credit acceptable to the Director on or before March 6, 2000, this application will be dismissed.
8This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board