3401-99-ES Deborah Frances Boswell A Director of West Machinery Co. Limited, Applicant v. Winnifred Woods et al and Ministry of Labour, Responding Parties.
Employment Practices File Number: 53000307
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; June 19, 2001
1By decision dated May 17, 2001, the Board directed the applicant and the Ministry of Labour (“the Ministry”) to file submissions concerning the amount of monies set out in the Employment Standards Officer’s (“the Officer”) order to pay, and their distribution. The Board is now in receipt of these submissions, in addition to further reply submissions filed by the Ministry on June 7, 2001.
2The order to pay was in the amount of $28,819.88. Both the applicant and the Ministry agree that the appropriate amount of the order to pay that I should make is $28,541.33 (reflecting the payment of $278.55 received by the Director of Employment Standards (“the Director”) from the applicant’s spouse pursuant to his proposal to creditors of Tobac Curing Systems Limited, referred to hereinafter as “Tobac”), less the $100.00 paid by the applicant in trust in respect of this matter. The applicant takes no position in response to the Ministry’s submission that my order to pay should direct that the monies be paid to the Director in trust for distribution.
3The applicant raises two concerns. First, there were only 26 authorizations conferring authority on the Ministry to file a proof of claim on behalf of Tobac employees. That proof of claim listed 27 individuals. Secondly, the applicant points out that there may be difficulties in locating all the employees entitled to receive a portion of the distribution. It therefore requests written confirmation of authorization of all 27 employees, the distribution list (presumably a list that is or will be created by the Ministry) of all 27 employees and their addresses, and the return of any undistributed monies.
4To the extent the applicant seeks to have its request incorporated in a final decision of the Board, I decline to do so. An Employment Standards Officer can make an order to pay in favour of persons who have not filed a complaint, pursuant to an investigation: see Rainbow Concrete Industries Ltd. v. Ontario (Director of Employment Standards), [1999] O.J. No 3922 There is no dispute that the Officer in this case did so, and that is apparent from the proof of claim filed by the officer on behalf of 27 employees of Tobac against the estate of West Machinery Co. Ltd. It is not necessary that all 27 employees file authorizations in order for the proof of claim to have issued as it did.
5In addition, there is nothing in the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”) that requires the Director to account to the applicant for the distribution of the funds. I decline to incorporate such a requirement in this decision.
6The application is dismissed.
7Pursuant to section 68(20) of the Act, the Board hereby orders the applicant to pay forthwith to the Director of Employment Standards in trust for the benefit of the 27 employees of Tobac identified in the proof of claim dated November 8, 1999 the sum of $28,441.33 for wages owing.
“Patrick Kelly”
for the Board