Ontario Labour Relations Board
0647-00-ES Century Brick Limited, Applicant v. Robert Murray and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 50009127
BEFORE: M. A. Nairn, Vice-Chair.
DECISION OF THE BOARD; July 18, 2000
Decision
1This is an application for review of an Order to Pay brought pursuant to the Employment Standards Act (the "ESA"). The applicant asserts that the application is timely or, in the alternative, that the time for filing the application be extended in the circumstances.
2The Order to Pay is dated March 29, 2000. This application for review was filed on May 29, 2000 with the accompanying monies paid into trust at that time. The applicant takes the position that the word "day" is not defined in the ESA and that it relied on the Board's Rules to conclude that "day" excluded weekends and statutory holidays. In other words, the applicant calculated the 45-day time limit on the basis of working days, rather than calendar days. On that definition, the application would be timely.
3The time limit for filing an application for review is set out in section 68(3) of the ESA:
(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).
4The ESA sets out a statutory time limit for the filing of an application for review. The ESA deals with the application of minimum employment standards. Delay generally acts to the detriment of workplace parties. It is not surprising therefore that the Legislature has provided for a relatively short period in which a person or entity subject to an Order to Pay or subject to the denial of such an Order need formalize their challenge. The Order to Pay makes reference to the 45-day time limit for filing. Counsel for the applicant advises that the letter from the Employment Standards Officer also makes reference to a 45-day time limit.
5In the normal course, the words of a statute must be given their ordinary meaning. Where calendar days is not intended, the Board's Rules, for example, make that clear. In Idlewood Inn, unreported decision of the Board dated November 8, 1999 (request for reconsideration dismissed December 6, 1999) the Board, in the request for reconsideration stated:
... The applicant simply reiterated its previous position that the reference to days in section 68 should be qualified by reading the word "working". A general proposition with respect to statutory interpretation is that a tribunal like the Board must give effect to the ordinary meaning of words in the general context of the statute and in light of the purpose or object of the legislation. A tribunal may read in words which it considers to be necessarily implied by words which are already in the statute, and it has a limited power to add to, alter or ignore statutory words in order [to] prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable or totally irreconcilable with the rest of the statute. The power to add, modify or fill in words is extremely limited because a tribunal only has the power to interpret legislation, not amend it.
6Interpreting the word as "working" days modifies the word "day" contrary to the word's normal meaning and contrary to the apparent intent of the statute to provide for relatively expeditious dispute resolution. See similarly the Board's comments in The Sarnia Construction Association [1999] O.L.R.B. Rep. Sept./Oct. 884, particularly at paragraphs 9-23 (request for reconsideration dismissed [1999] O.L.R.B. Rep. 1091).
7The ESA does not define "day". The applicant relies on the Board's Rules. Rule 3 states that the Rules apply to all cases before the Board including cases under, inter alia, the ESA. Those Rules define "day" as working days. However the definitions in the Rules are preceded by the advice that the definitions pertain to those Rules. The Rules do not and cannot speak to a time limit found in a statute.
8I note that there is no indication that any inquiry was made to either the Registrar of the Board or to the Ministry as to any understood interpretation of the term. On a review of the material available to the applicant, there would have been no doubt as to the calculation. In Appendix B of the Board's Rules, apparently available to the applicant, the time limit for the filing of an application for review is specifically identified as 45 calendar days after the date of the Order to Pay or the letter refusing to issue an Order. The application for review was filed on an old form. The proper form (Form A-69) sets out the time limit in bold print as "45 calendar days". The Board's Information Bulletin #23, dealing specifically with applications for review, again identifies the time limit in bold print as "45 calendar days".
9In summary, the word "days" in section 68(3) of the ESA is properly interpreted as calendar days. The 45-day time limit for filing an application for review is calculated on the basis of 45 calendar days from the date of the Order to Pay or the date of the Officer's letter refusing to issue an Order.
10Having regard to the material available to the applicant, the decision in Idlewood Inn, supra, and the explanation before me, I see no basis for properly extending the time for the filing of this application for review. The application is untimely. It is therefore dismissed.
"M. A. Nairn"
for the Board