Ontario Labour Relations Board
1703-00-ES Scott Evans, Applicant v. AFV Multimedia, Joe Small, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43002070
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; October 31, 2000
1This is an application for review under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of the refusal of Employment Standards Officer Joe Small to issue an order to pay. The letter advising the applicant of Mr. Small’s decision was dated July 10, 2000. The applicant filed a letter on September 8, 2000 that was dated August 28, 2000 seeking to review Mr. Small’s decision. The Board, in two letters to the applicant dated September 21, 2000, advised the applicant that the application could not be processed because it was not filed on the proper form and that it appeared that the application was untimely. The application for review was filed on the correct form with the Board on October 4, 2000, well beyond the time stipulated in section 68 (3) (b) of the Act for making a timely application for review of a refusal to issue an order.
2The Registrar’s September 21, 2000 letter advised the applicant that his application appeared to be untimely but that he could seek an extension of time from the Board. The applicant in the submissions attached to his formal application indicated that he understood from a conversation that he had had with Mr. Small in early July that he would be continuing with his investigation because the applicant had more information to provide Mr. Small. The letter refusing to issue an order was sent a week later. The applicant attempted to contact Mr. Small by both leaving voice mail messages for him and sending him e-mails. When Mr. Small did reply, the applicant learned that Mr. Small had been on vacation.
3Section 68 (4) of the Act permits the Board to extend the time for making an application for review if the Board considers it appropriate to do so. Although the applicant had received the letter advising the applicant of the Officer’s decision to refuse to issue an order to pay in July, the applicant attempted to contact the Officer before seeking to apply for review. While it would have been more prudent for the applicant to have filed the application within the time required when he did not get a prompt reply from the Officer, I am satisfied that the applicant had wanted to have the Officer change his decision as soon as the applicant had received the decision. Attempting to contact the Officer before making the application was understandable. The applicant’s first letter to the Board dated August 29, 2000 in which he asks that it be treated as an application for review was filed with the Board on September 8, 2000; it was also two weeks past the time for the filing of a timely application for review.
4The applicant’s application also appears to raise serious issues. It appears that the Officer’s refusal to issue an order was based on a determination that the applicant’s claim related to holiday weekends in 1998, well beyond the period within which a claim can be commenced under the Act. It appears that the applicant relies on other instances that might come within the limitation period prescribed by the Act. It is simply not clear at this point whether that is the case. Furthermore, I am satisfied that the applicant acted promptly in seeking an extension of the time for making the application and had formed the intention to apply for review shortly after receiving the Officer’s decision, but did not do so until he had once again spoken with the Officer. In these circumstances, the Board considers it appropriate to extend the time for making this application.
5The Board hereby extends the time for applying for review of Employment Standards Officer Joe Small’s decision refusing to issue an order to pay dated July 10, 2000 to October 4, 2000, the date the application was made. Therefore this application for review is now timely and is referred to the Registrar.
6This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board