3853-99-ES George Luca, Applicant v. Tecmotiv (1992) Inc. and Ministry of Labour, Responding Parties.

BEFORE: Christopher J. Albertyn, Adjudicator/Referee.

APPEARANCES: Michael O’Connor and George Luca for the applicant; J. Van Wiechen for the employer; no one appearing for the Ministry of Labour.

DECISION; September 27, 2000

1This is an employee appeal under the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”) against the refusal by an Employment Standards Officer to issue an Order to Pay in the applicant's favour.

2This decision provides the reasons for the rulings I made at the hearing of this matter on September 22, 2000.

3It has a long history. Mr. Luca, the employee, left his employment with the employer on about October 25, 1993 after over 23 years service. He brought a claim before an Employment Standards Officer. The Officer declined to issue an order in his favour. The Officer concluded that he had quit, and not been terminated. Mr. Luca brought an application to review the Officer’s decision. The review was heard by Adjudicator Muir (as he then was). He issued a decision on November 8, 1996 (Decision No. ESC 96-219). He determined that Mr. Luca had been terminated without notice. Adjudicator Muir found that Mr. Luca was entitled to termination and severance pay. He left the determination of quantum to the parties and remained seized to address the matter if the parties could not come to terms.

4Mr. Muir is no longer an adjudicator. He is now employed by the Ministry, which is a party to this application. The parties accept that it is not appropriate for him to remain seized to deal with the remaining issues in the application. It has been passed to me for determination.

5At the hearing of the matter to determine what remains in this application, the employer’s counsel argued that I should entertain a claim by the employer that Adjudicator Muir’s determination should be reconsidered in light of the fact that Mr. Luca performed his work in New York, not Ontario, and accordingly that he should not be entitled to make a claim under the Act. The employer had not been represented by counsel and, through no fault of its own, rather a lack of a full appreciation of its rights, it had failed to raise this jurisdictional challenge before Adjudicator Muir. Counsel suggested that he was not seeking to re-open the case; his submission was made in the context of a continuing matter because the hearing was not yet complete. Notice of the employer’s intention to raise the jurisdictional challenge was given to the other parties in advance of the hearing and accordingly, counsel submitted, there was no prejudice to them. Counsel referred to two cases, in which adjudicators permitted a party to change the basis of its claim during the course of the proceedings, as authority for why I should do so: Reflections International Furniture Company, Ltd. (re. Order to Pay No. 01013; File #05-177) (decision of March 9, 1986) (Baum); Barbara L. Whitaker Ltd. (re. Order to Pay No. 04005) (decision of November 8, 1989) (Gorsky).

6Mr. Luca’s counsel pointed to the considerable prejudice Mr. Luca would suffer if the merits of this matter were re-opened at this stage. He lost his job nearly 7 years ago. If I were to investigate the issue now raised by the employer and find that Mr. Luca’s claim is enforceable in New York and not Ontario, he would be time barred from pursuing an action in New York. Had the issue been raised in a timely manner (when, in counsel’s submission, it should have been raised), as part of Adjudicator Muir’s inquiry, and if there were merit in it (which counsel did not concede), then Mr. Luca might still have been able to pursue the matter. To have the inquiry now can only add to the delay in Mr. Luca realizing his successful claim.

7Mr. Luca’s counsel referred to the policy reasons why a case, which has been finalized, should not be re-opened. Parties have an interest in finality. The Board’s Rules concerning reconsideration requests require that they be brought within 20 days of the decision being challenged (Rule 107 read with Rule 96). That time limitation is to ensure finality and certainty: Hair Trends [1999] O.E.S.A.D. No. 271. Adjudicator Muir’s decision was issued on November 8, 1996. The New York challenge to the decision has been raised recently by the employer’s counsel although it was available to the employer as an argument at the time of the hearing before Adjudicator Muir.

8In order to address the employer’s request it is necessary to explain my role and powers in this matter. I hear this case not as a vice-chair of the Board, but as an adjudicator. This case was brought in the first instance before Adjudicator Muir well before the amendments to the Act brought about by Bill 31 (the Economic Development and Workplace Democracy Act, 1998). Under Bill 31 the jurisdiction to consider appeals and reviews under the Act was transferred from adjudicators appointed by the Minister of Labour to the Board. However, extant appeals and reviews were to continue to be heard and determined by the adjudicator to whom they had been assigned. This application is of that sort. I step into the shoes of Adjudicator Muir as the adjudicator in the matter. I have no greater powers than he possessed.

9Bill 31 brought about certain amendments to the Act. As part of the transfer of appellate powers to the Board in respect of Employment Standards Officers’ decisions, subsection 68(11) empowered the Chair of the Board to make rules governing the Board’s practice and procedure and the exercise of its powers. By virtue of that power the Chair has seen fit to provide in Rule 107 of the Board’s Rules of Procedure how requests for reconsideration of the Board’s decisions under the Act will be dealt with. Specifically that Rule provides: “For greater certainty, Rules 94-96 [those dealing with requests for reconsideration] apply to applications under the Employment Standards Act.”

10The Statutory Powers Procedure Act (as amended by the Government Process Simplification Act (Ministry of the Attorney General), 1996) (“the SPPA”) provides, at subsection 21.2(1), that a tribunal has the power to reconsider its decisions if its rules make provision for it to do so. Since the Board has such rules, the Board has accepted that it may reconsider the decisions it has made under the Act.

11There were no rules, such as are contemplated in subsection 21.2(1) of the SPPA, which applied to adjudicators. Hence adjudicators had no power to reconsider their decisions. Once a decision was made, the adjudicator concerned was functus in relation to what he or she had decided.

12Despite the employer’s counsel’s submission that Adjudicator Muir was not functus because he had retained jurisdiction to determine quantum, that is not so in relation to the merits of the case. Adjudicator Muir finally determined the merits of the application in his decision of November 8, 1996. He had no power to reconsider that determination, even had he wanted to.

13I am in no better position than Adjudicator Muir. I have no jurisdiction to re-open consideration of the merits of Mr. Luca’s application. Nevertheless, if I had jurisdiction to reconsider Adjudicator Muir’s decision, I would not do so. It is untimely. The argument the employer seeks to infuse into the matter was available to it at the time the matter was heard by Adjudicator Muir. By the exercise of reasonable diligence it could have raised it then. Its failure to use counsel at that stage of the proceedings was its choice. It assumed all of the risks of conducting its case in the absence of legal guidance. Furthermore, Mr. Luca would be considerably prejudiced were this matter not brought to finality now, some seven years after he was fired. As his counsel pointed out, he has incurred significant legal costs over the course of those years and he would be faced with more were this application to be re-opened.

14Accordingly, I ruled at the hearing that I was not willing to allow the employer to present a case that Mr. Luca worked in New York , and not Ontario, during the period relevant to the application.

15Upon informing the parties, at the hearing, of this ruling I was informed by them that they had resolved the question of quantum. They had agreed that Mr. Luca was entitled to eight weeks’ pay as termination pay and that he was not entitled to receive severance pay.

DISPOSITION

16I make the following declarations and orders and I issue the following directions:

(1) the employer shall pay eight weeks’ pay to the applicant in respect of termination pay;

(2) the said payment will be made within 30 days of this decision;

(3) the said payment shall include interest thereon from Novemer 1, 1993 to date of payment, as agreed or at the prescribed rate under the Courts of Justice Act.