1005-00-ES Rapid Refrigeration Manufacturing Company Limited, Applicant v. Jian-Bo Huang and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 34002257
BEFORE: Marilyn Silverman, Vice-Chair.
APPEARANCES: K. Triantafillopoulos for the applicant; Jian-Bo Huang on her own behalf; Margo MacKinnon for the Ministry of Labour.
DECISION OF THE BOARD; December 27, 2000
1. This is an application filed pursuant to section 68 of the Employment Standards Act (‘the Act’) requesting review of the Order to Pay No. 56560 dated May 15, 2000. The hearing was scheduled for December 19, 2000 by notice of hearing dated October 12, 2000.
2. At the date and time scheduled for hearing counsel for the applicant (the “employer”) attended at the hearing and renewed an earlier request he had made for an adjournment of the hearing. It should be noted that counsel amended his request at the hearing and requested an adjournment for a shorter period of time.
3. Counsel advises that its witnesses are not available and that some are in Florida. He initially requested the adjournment from the responding employee, Mr. Jian-Bo Huang (“Mr. Huang”) on November 7, 2000 after receiving the notice of hearing. When refused by Mr. Huang, the request was made to the Board. By decision dated November 29, 2000 the Board (differently constituted), denied the request. Paragraphs 4 and 5 of that decision reads as follows:
4. The Board has a long-standing practice to grant adjournments only on agreement or in circumstances that are generally beyond control of the party seeking the adjournment. The initial hearing dates are set by the Registrar. Travel plans, business or personal, made by a party to the proceeding are not “extraordinary circumstances” that would cause the Board to adjourn a hearing over the objections of one of the other parties.
5. A four months’ adjournment in the circumstances is not reasonable. The request for an adjournment is denied.
6. By letter dated December 12, 2000 counsel for the employer once again advised that it would request an adjournment on the day of hearing and advised that its request would now be for an adjournment for a two-month period.
5. At the hearing the request was made for an adjournment until January 27, 2000 as counsel learned that Mr Huang was leaving the country on January 28, 2000. Counsel advised that by that date some of his witnesses could be present.
6. The request was opposed by Mr Huang and the Ministry of Labour.
7. After hearing submissions from the parties, I issued the following oral ruling:
Counsel for the applicant employer requests an adjournment of today’s hearing because its witnesses are not available and that some of them are out of the country. The request is opposed by the responding employee and the Ministry of Labour. The request is denied. The Board reiterates its position as set out in paragraph 4 of the November 29, 2000 decision. The responding employer knew that the matter would proceed and did not attend prepared to do so at its peril.
8. Mr Huang is entitled to have this matter heard without undue delay. As was stated in the Board’s November 29, 2000 decision, these circumstances are not normally ones for which the Board grants adjournments. The fact that the request to adjourn is now for a shorter period of time does not lead me to deviate from the Board’s normal practice or from the earlier decision.
9. After hearing my ruling, counsel for the employer reiterated that he was not in a position to make argument. Counsel for the Ministry of Labour’s position was that the onus was on the employer and that onus was not met by there being no evidence proffered on the employer’s behalf.
10. Having regard to these circumstances, the application is therefore dismissed and the Order to Pay is confirmed.
11. I therefore order the amount of $1,815.06 to be paid to the employee from the amount held by the ‘Director in trust” in relation to this matter. The remaining amount held in trust in relation to this matter of $181.51 for the administration fee is to be retained by the Government of Ontario Consolidated Revenue Fund.
“Marilyn Silverman”
for the Board