Steve Bryant operating as Vacumart v. David Dietrich, 2001 CanLII 11965

0681-01-ES Steve Bryant operating as Vacumart, Applicant v. David Dietrich, and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 61005561

BEFORE: David A. McKee, Vice-Chair.

DECISION OF THE BOARD; August 1, 2001

1This is an application for a review of a decision of an employment standards officer pursuant to section 68 of the Employment Standards Act, R.S.O. 1990 ch. E-14 ("the Act"). The Board earlier advised the applicant that it would be necessary to provide some basis for his request for an extension of the time to file the application. The applicant’s submissions were received on July 25, 2001.

2The applicant gives several reasons. First he says the Ministry failed “to ensure delivery with regard to the initial claim in an accurate and timely fashion”. He provides no details of what this statement means. The Ministry does not respond to this assertion that the initial materials were somehow not delivered in a proper manner, but points out the Order to Pay was delivered by courier. It is the Order to Pay which the applicant seeks to review, and it is that document which triggers the commencement of the 45-day period to file the application. Accordingly, that submission does not cause the Board to extend the time limits.

3The applicant states that the follow-up letter dated April 12, 2001 (still within the 45‑day period) delivered to him by mail was not addressed to his personal attention but simply “Dear Sir/Madam”. He states that this led the letter to be placed with the non-urgent, general mail to await his return from a business trip. As the Board said in Lion on the Beach (unreported, September 24, 1999, Board File No. 1301-99-ES):

The applicant has either ignored the notices that were sent to his place of business or arranged his affairs so that his employees would not accept documents delivered to his place of business that required a signature acknowledging receipt. In either case, the applicant is the author of his own difficulties. It is clear that the applicant’s failure to make a timely application for review stemmed entirely from the applicant having his employees refuse to accept registered mail when he is not at his place of business. The applicant also did not appear at the initial meeting with the Employment Standards Officer even though notice of that meeting was sent to his place of business.
The applicant’s only basis for seeking an extension of time for applying for review is his not being aware of order to pay number 52432 issued on April 19, 1999 until he received the letter from the Ministry of Labour collections officer. He does not dispute that the order to pay was forwarded to his place of business. He says that his employees did not accept registered mail and that was the reason he did not have notice of the order to pay in sufficient time to file a timely appeal. In my opinion, the applicant, in having his employees refuse delivery of registered mail except when he is present at his place of business, must live with the consequences that flow from not responding to notices in a timely way. …

4Similarly here the applicant is responsible for how he organizes his affairs. The fact is he received, within the time set out for an application, a further reminder of the need to act if he wished to make an application for a review of the Order to Pay. The Ministry was under no obligation to send the reminder in any event.

5Third, the applicant states he did become aware of the reminder letter until April 30 and spoke to someone at the Ministry office on that date. Nonetheless, this application was not filed until May 30, 2001. No explanation for the delay is given.

6The applicant complains that “The Ministry had the opportunity and authorization to provide an extension” and that it “failed to provide any information with regard to an extension”. The Ministry may have the power to extend the time for payment of an Order to Pay, but has no authority to extend the time for filing an application for review. Only the Board does. That information is contained on the Order to Pay itself, a copy of which the applicant filed with his application.

7Finally, the applicant states that his business premises are a five-minute drive from the nearest offices of the Ministry and that “ an officer could have provided service to this claim and ongoing information via a personal appointment”. The Ministry is under no obligation to do so. In any event, once the Order to Pay is issued, the Ministry can do nothing further. It is up to the applicant to follow the advice on the Order to Pay about filing an application for review if he chooses to do so.

8The Board is not satisfied that there exist reasons which would cause the Board to extend the time limits provided for in the Act for filing an application for review. This application is untimely and is therefore dismissed.

“David A. McKee”

for the Board