North Park Dental Centre operated by Dr. Dilshad Hirji v. Lisa Allen and Ministry of Labour
File No.: 4145-98-ES Applicant: North Park Dental Centre operated by Dr. Dilshad Hirji Responding Parties: Lisa Allen and Ministry of Labour
Before: D. L. Gee, Vice-Chair.
Appearances: no one appearing on behalf of the applicant; Joyce Weinman for Lisa Allen; Bridget Lynett for the Ministry of Labour.
Decision of the Board; February 7, 2000
1This matter is an application for review of an order to pay issued by an employment standards officer in favour of Lisa Allen. The applicant challenged the order to pay on the basis that Ms. Allen was not an employee and was not terminated contrary to the provisions of the Employment Standards Act, (the “Act”). The applicant further challenged the quantum of damages determined by the officer.
2The hearing commenced on November 12, 1999. At the commencement of the hearing, it was determined that the Board would first determine the issues of whether Ms. Allen was an employee and whether she was terminated in contravention of the Act. At the conclusion of the November 12, 1999 hearing, Ms. Allen was directed to provide counsel for the applicant with specified documents. Counsel for applicant was directed to advise the Board, no later than seven calendar days following receipt of the documents, as to whether he intended to call any further evidence arising out of the documents. Further hearing dates of December 21, 1999 and February 4, 2000 were set orally by the Board at the hearing. The December 21, 1999 date was set to hear any evidence the applicant wished to adduce arising out of the documents produced by Ms. Allen. The February 4, 2000 date was set to deal with the issue of damages.
3Counsel for the applicant did not inform the Board of whether the applicant wished to call any further evidence as per the Board’s November 12, 1999 direction and accordingly the Board issued a decision on December 14, 1999 stating that the evidentiary portion of the hearing with respect to the issues of whether Ms. Allen was an employee and whether she had been terminated contrary to the provisions of the Act was concluded and directed that final submissions be made in writing. The Board’s decision finding Ms. Allen to be an employee and to have been terminated contrary to the provisions of the Act issued on January 31, 2000.
4As scheduled by the Board at the hearing on November 12, 1999, a hearing was held on February 4, 2000 to consider the applicant’s appeal with respect to the quantum of damages ordered by the officer. No one appeared at the hearing on behalf of the applicant. Counsel for Ms. Allen requested that the Board issue a decision directing that the funds presently held in trust by the Director be released to Ms. Allen along with all accumulated interest. In addition, counsel for Ms. Allen requested that the Board award Ms. Allen interest on the amount of the order to pay from the date of the order to pay, April 14, 1997, until May 1, 1999 when the amount of the order to pay was paid into trust. The award of interest to Ms. Allen in these circumstances is appropriate (see: Re Glover, [1992] O.E.S.A.D. No. 210). In order for Ms. Allen to be fully compensated for the loss she suffered she is to be paid interest on the amounts owing. The appropriate rate to apply is 3.3% which was the pre-judgment interest rate in effect for April, 1997, prescribed by the Courts of Justice Act R.S.O. 1984, c. 11 and used by the courts for the calculation of pre-judgment interest in all civil proceedings. Accordingly, the applicant will be ordered to pay to Ms. Allen the further sum of $1,383.74.
5Having regard to the foregoing, the Board hereby orders that twenty thousand eight hundred dollars ($20,800) of the total of twenty-two thousand eight hundred and eighty dollars ($22,880) held in trust by the Director be disbursed to Ms. Allen. The administration fee of two thousand and eighty dollars ($2,080) is to be retained by the Government of Ontario Consolidated Revenue Fund. The interest accumulated on the amount held in trust by the Director is to be paid to Ms. Allen and the Government of Ontario Consolidated Revenue Fund on a pro-rata basis. North Park Dental Centre operated by Dr. Dilshad Hirji is hereby ordered to pay to Ms. Allen, forthwith, the amount of one thousand three hundred and eighty-three dollars and seventy-four cents ($1,383.74).
6Pursuant to section 69.1(5) of the Act, this application is hereby terminated.
“D. L. Gee”
for the Board