Insta Print Centre v. Lorraine Willard and Ministry of Labour, 2001 CanLII 13455

Insta Print Centre v. Lorraine Willard and Ministry of Labour

0690-01-ES Insta Print Centre, Applicant v. Lorraine Willard and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 13003273

BEFORE: Christopher J. Albertyn, Vice‑Chair.

DECISION OF THE BOARD; June 21, 2001

Decision

1. The applicant appears to want to have the Board review the Order to Pay No.55577 of April 19, 2001. A request for review, which did not comply with the Board’s Rules, was submitted to the Board on May 31, 2001. The Registrar of the Board wrote to the applicant on that date advising of the need to comply with the Board’s Rules and fill out the correct Form. The necessary documents and the Rules were sent to the applicant. A fresh application was filed on the proper form. It was received on June 7, 2001. However the applicant has not paid the money into trust that is required by section 68 of the Employment Standards Act as amended by the Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c. 8. The applicant appears to be under the impression that its application can proceed without paying into trust the sum of $4,246.53, required by the Order to Pay. That is not so, as is apparent from the provisions of section 68 of the Employment Standards Act, as amended (‘the Act’).

2. Section 68, provides in part, as follows:

3. (3) An application for a review must be made,

(a) in the case of an application for a review of an order, within 45 days after the date of the order;

(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67(2).

(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.

(5) In the case of an order that requires the payment of money to the Director in trust, the Board may not extend the time for applying for a review if the Director has paid the money to an employee or employees under subsection 72(2).

(6) An application for a review must be in writing.

(7) An application for a review of an order requiring the applicant to pay an amount is not properly made and the Board shall not proceed with the review unless, within the time for applying for the review, the applicant pays the amount to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.

3. Subsection 68(3) of the Employment Standards Act as amended, requires that an application for review be made within 45 days after the date of the Order to Pay. Subsection 68(7) states that an application for review of an Order to Pay is not properly made unless the monies are paid into trust.

4. The essence of those provisions is to require the payment into trust of those monies directed by an Order to Pay as part of the application for review. An application for review is not complete unless the monies have been paid into trust. The Board's available discretion under subsection 68(4) is to extend the time for applying for a review, not to extend the time for paying monies into trust. In order to exercise that discretion, the conditions precedent to making an application need to be met in order to determine whether the late filing of that application may be appropriate. It is inconsistent with the statute to effectively extend the 45 day time limit where a complete application for review has not yet been filed. Such an approach is also more consistent with the prohibition set out in subsection 68(5). Once an application is properly filed the Board may consider whether it is appropriate in the circumstances to extend the time for applying and allow the matter to proceed.

5. There is no request before the Board at present for an extension of time for this application to proceed. No request for an extension will be considered unless payment in full is made as required by section 68(7) of the Act. Unless a proper request for an extension is made within 10 days of the date hereof, this application will be deemed to be terminated.

“Christopher J. Albertyn”

for the Board