0522-01-ES Randy Keller o/a R. Keller and Sons Logging, Applicant v. Rick Pinion; Brian Kasprick; Darren Dooley; Dolores Dumontier, Employment Standards Officer; and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 13003255
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; May 17, 2001
1. Counsel for the applicant, by letter to the Board dated May 10, 2001 filed an application for review of Order to Pay No. 55540 issued by Dolores Dumontier on March 28, 2001 (the “Order”) under the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the “Act”). Counsel states in that letter:
We understand that the Applicant is required to put the money into trust with the Labour Board but the applicant currently is not able to pay the amount into trust as he is a seasonal forest-industry work [sic] and currently has little if any excess income beyond his requirements for living.
We ask that the Application be processed in order that the 45-day time limit is met, and ask whether other arrangements can be made with the applicant for the amount required to be placed in trust.
2. An application for review of an order to pay must be filed with the Board under section 68 of the Act. Section 68 of the Act sets out the procedural requirements an applicant must meet in order to have an application for review of an order to pay proceed. Section 68 provides, in part:
(1) A person who considers himself…aggrieved by an order … may apply to the Board for a review of the order ….
(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;
(4) …the Board may extend the time for applying for a review if it considers it appropriate to do so.
(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.
It is clear that the Board, by reason of section 68(7) of the Act, cannot proceed with the application unless the amount required by the Order is either paid to the Director in trust or an irrevocable letter of credit acceptable to the Director is provided to the Director. Indeed, in the absence of either a payment or an irrevocable letter of credit acceptable to the Director being provided to the Director, the application for review has not yet been made.
3. Although the proper form to make an application for review has been filed with the Board, the applicant has not yet made the payment required by the Act (or provided the Director with an irrevocable letter of credit) that is necessary in order for this application for review to proceed. If the applicant does wish to proceed with its application, it must within 15 working days of the date of this decision either pay to the Director in trust the amount required by the Order or provide an irrevocable letter of credit acceptable to the Director. If the applicant does wish to proceed with its application for review, he must provide the Board with proof of the requisite payment (or provision of the acceptable letter of credit) within 15 working days of the date of this decision.
4. Furthermore, since the time for making the application for review has now expired, the applicant must also request that the Board, pursuant to section 68(4) of the Act, extend the time for applying for review of the Order (as the review has not as yet been properly made) and set out the grounds for such an extension. If the payment is not made (or irrevocable letter of credit not provided) and proof of payment (or proof of provision of the irrevocable letter of credit acceptable to the Director) is not provided to the Board on or before June 8, 2001, this application will be dismissed. If the payment is made (or irrevocable letter of credit acceptable to the Director provided) and proof of payment (or provision of the irrevocable letter of credit) is delivered to the Board and an extension for applying for review is sought by that date, the Board will determine at that time whether to extend the time for applying for review of the Order or dismiss the application.
5. This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board