3546-99-ES Ernest Anderson A Director of Stirling Building Products Limited, Applicant v. Glen Hillier et al and, Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 52005964
BEFORE: D. L. Gee, Vice-Chair.
APPEARANCES: William E. Mathers and Ernest Anderson for the applicant;
J. Anthony Bowden, Glenn Hillier, Michael Hillier and Samantha Cervino for the respondents; Alicia Gordon-Fagan for the Ministry of Labour.
DECISION OF THE BOARD; August 21, 2000
1This matter is application for review of director Order to Pay No. D04388 issued on September 29, 1999.
2At the hearing in connection with this matter the Board heard evidence from Ernest Anderson and J. Bowden. The evidence establishes that J. Bowden and James McCormack were directors of Stirling Building Products Limited until June, 1998 when they sold the company to Ernest Anderson. The company was in serious financial trouble at the time of the sale. Upon the sale of the company, Messrs. Bowden and McCormack resigned as directors. Mr. Anderson became the company’s sole director. Following the sale, Mr. Bowden held the title of Vice-President Finance and Administration. Mr. Bowden no longer had signing authority or had access to the company’s financial statements. Mr. Anderson signed all cheques and all financial statements were sent directly to him. Mr. Bowden made deliveries and worked on the assembly line. He, under the instruction of Mr. Anderson, issued disciplinary notices to employees. Mr. Bowden reported to Mr. Anderson. Mr. McCormack was responsible for the day to day operations of the business. Mr. Anderson did not have an office at the premises.
3The basis for the appeal is two-fold. The applicant disputes that he is liable for monies owing to J. Bowden and James McCormack on the basis that, although they had officially resigned as directors, they remained “defacto directors”. In addition, the applicant asserts that Messrs. Bowden and McCormack should be jointly and severally liable for the amount of the Order to Pay on the basis that they were defacto directors.
4It is my determination that this appeal cannot succeed. Assuming, without finding, that an individual who is not a registered director but acts in the capacity of a director is exempt from the entitlement provisions of the Employment Standard Act and can be held liable as a director, the evidence before me does not establish that, following the sale of the business and their resignation as directors, Messrs. Bowden and McCormack acted as directors. The evidence simply does not support the proposition that the applicant advances.
5This application is hereby dismissed and the Order to Pay is affirmed.
“D. L. Gee”
for the Board