Alphonse William Brodeur (a director) v. Cassidy’s Ltd. et al.
0822-01-ES Alphonse William Brodeur (a director), Applicant v. Cassidy’s Ltd., Price Waterhouse Coopers, Victoria Biocca, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 43-002462
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; August 30, 2001
1The Board, by decision in this matter dated July 30, 2001 directed the applicant to provide the Director with an irrevocable letter of credit that is acceptable to the Director (or if he wished to do so, to pay the requisite amount to the Director in trust) on or before August 21, 2001 and provide the Board with proof that such an irrevocable acceptable letter of credit (or payment) has been given to the Director by that date. The Board also noted the consequences that would result should the applicant fail to do so. The Board stated at paragraph 9 of that decision:
If however, the applicant fails to provide the Board with proof of providing the Director with the requisite letter of credit (or of payment of the Order) by August 21, 2001, this application for review will be dismissed.
The Board has not received the requisite proof of payment or provision of a letter of credit as of this date.
2The Board, on August 22, 2001, in a facsimile transmission from the solicitors for the Interim Receiver of Cassidy’s Limited (the employer of which the applicant was alleged to be a director) (“the Receiver”) addressed to six persons including the Registrar, received a copy of an Order relating to Cassidy’s Limited issued by the Superior Court of Justice In Bankruptcy dated August 22, 2001 (the “Order”). Paragraph 15 of the Order states:
This Court requests the aid and assistance of provincial and federal governmental authorities and administrative bodies responsible for the employment-related matters in carrying out the terms of this Order and requests that any enforcement proceedings relating to the Employee Claims be suspended including, without limitation, proceedings against the directors of the Debtors to enforce their liability for Employee Claims be suspended.
There was no other material from the solicitors for the Receiver to explain why the Board had received that Order and what, if anything, that Order had to do with this proceeding before the Board. Neither they nor the solicitors for the applicant have filed any submissions with the Board concerning what the Board should do or refrain from doing as a result of that Order.
3The solicitors for the applicant, by letter to the Registrar dated August 17, 2001, had advised the Board that the Receiver would be making a motion the next week seeking an order establishing a procedure to determine claims against Cassidy’s Limited and providing for the payment by the Receiver of all employee priority claims. That letter stated in part:
We believe that this will cover all of the claims that are subject to the proceeding against Mr. Brodeur. The Ministry has asserted that amounts in excess of the priority claim of $2,000 for each employee may be owing to certain employees. However, we note…that there are concerns with respect to the claims of some of the employees…. As a result, the order that will be obtained from the Ontario Superior Court of Justice will request the assistance of the Ministry of Labour and the Labour Relations Board in dealing with the situation through the claims’ process. In the circumstances we trust that no further action will be taken as against the directors and Mr. Brodeur will not be required to post security by August 21, 2001 as per your July 30, 2001 decision.
4It seems that the solicitors for the applicant have misapprehended this proceeding and the Board’s role in it. The Board has not taken any action against any of the directors of Cassidy’s Limited and the applicant. Indeed, it was the applicant who commenced this proceeding before the Board seeking to review the order to pay issued by Employment Standards Officer Victoria Biocca. The Board, in its July 30, 2001, decision was simply providing the applicant with an opportunity to complete his application for review and comply with the statutory requirements established by section 68(7) of the Employment Standards Act, R.S.O. 1990, c. E. 14, as am. (the “Act”) for making an application for review. The applicant has chosen for reasons best known to him and his solicitors not to make arrangements with the Director for the provision of a letter of credit that would allow his application to proceed further before the Board.
5As the Board noted in its July 30th decision, section 68(7) of the Act expressly limits the Board’s ability to deal with an application for review of an order to pay when the applicant fails to pay the requisite amount to the Director or fails to provide the Director with an irrevocable letter of credit acceptable to the Director. The Order obtained by the Receiver does not, in my view, affect the Board’s ability to deal with this application. The Order requested that “any enforcement proceedings…be suspended including, without limitation, proceedings against the directors….” This application before the Board is neither an enforcement proceeding nor a proceeding against the applicant. It is a proceeding commenced by the applicant to review an order to pay. It appears to me that there is therefore nothing in the Order that relates to this proceeding before the Board.
6In view of the applicant’s failure or refusal to provide the Board with the requisite proof of payment or provision of an acceptable letter of credit, and as the application for review of Order to Pay No. D 04314 dated May 4, 2001 has still not been properly made and the time for making such an application expired more than two months ago, the Board, in accordance with its July 30th decision, dismisses this application for review.
Disposition
7This application for review of Order to Pay No. D 04314 is dismissed.
“Harry Freedman”
for the Board