Ontario Labour Relations Board
File No.: 0822-01-ES Employment Practices Branch File No.: 43-002462
Alphonse William Brodeur (a director), Applicant v. Cassidy’s Ltd., Price Waterhouse Coopers, Victoria Biocca, Employment Standards Officer and Ministry of Labour, Responding Parties.
Before: Harry Freedman, Vice-Chair.
Decision of the Board: July 30, 2001
Decision
1Counsel for the applicant forwarded an Employment Standards Act Application for Review (Form A-69) to the Board with a copy of a letter dated June 13, 2001 that was addressed to Victoria Biocca, the Employment Standards Officer who issued Order to Pay No. D 04314 on May 4, 2001 (the “Order”) against the applicant, as a director of Cassidy’s Limited. The Board treated the receipt of Form A-69 as an application for review of the Order under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as am. (the “Act”).
2The letter to Ms. Biocca (and copied to the Board) indicated that the applicant and Ms. Biocca had reached an understanding about taking steps to enforce the Order and that the Ministry of Labour had “agreed to consent to an extension of the period within which the [Order] may be appealed.” Counsel for the applicant, by letter dated June 14, 2001 addressed to Ms. Biocca and copied to the Board referred to a letter he had received from Ms. Biocca and then stated:
We confirm that we are in agreement that you will not oppose an extension. We have filed our appeal with the Board. The sole issue relates to the provisions of security. In light of the facts that you ought to have been aware of when the Director Order to Pay was issued it would seem that you “jumped the gun” in issuing the Order. It would have been appropriate for the Ministry to have taken reasonable steps to determine what the status of the insolvency proceedings was before issuing the Order. If you wish, we would be happy to make a Motion to the Board seeking an order that our appeal be permitted on the basis of the fact that the interim receiver is holding sufficient money and will not release this money without a Court Order.
3The application form filed by the applicant indicates that the applicant is objecting to the Order and that section 58.22 of the Act applies to this application. This application for review is made pursuant to section 68 of the Act. Section 68(1) of the Act provides:
A person who considers himself…aggrieved by an order made under…section…58.22…may apply to the Board for a review of the order….
The application form was received by the Board on June 13, 2001, within the time prescribed by section 68(3)(a) of the Act for making an application for review of an order to pay, but the applicant has not paid the amount required by the Order to the Director nor has the applicant provided the Director with an irrevocable letter of credit acceptable to the Director.
4It appears to me, based on the letter from his counsel to Ms. Biocca dated June 14, 2001, that the applicant seems to believe that the Board can deal with a “Motion…seeking an order that our appeal be permitted on the basis of the fact that the interim receiver is holding sufficient money and will not release this money without a Court Order.” and allow the application for review to proceed without either the requisite amount paid to the Director in trust or an irrevocable letter of credit acceptable to the Director provided to the Director.
5Section 68(7) of the Act, in my view, 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. That section of the Act provides:
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.
That section is clear. The Board cannot proceed with the review of an order to pay if there has not been a proper payment to the Director or if an irrevocable letter of credit acceptable to the Director has not be given to the Director.
6The time for filing an application for review of the Order has now expired. Because the applicant has neither paid the amount required by the Order to the Director nor provided the Director with an irrevocable letter of credit acceptable to the Director, the application for review of the Order has not yet been properly made. Although it seems from the copies of the correspondence between counsel for the applicant and Ms. Biocca that the parties have some understanding as to how this matter is to proceed, unless the Board receives evidence that the necessary conditions for properly making an application for review have been satisfied, this application will have to be dismissed.
7If the applicant and the Director can agree upon this form of an irrevocable letter of credit and advise the Board that the applicant has given the Director an acceptable irrevocable letter of credit, then the Board will, at the request of the applicant, determine whether, under section 68(4) of the Act, to extend the time for making the application for review of the Order. Unless that is done, this application will not have been properly made and will therefore have to be dismissed.
8The Board directs the applicant to provide the Director with an irrevocable letter of credit that is acceptable to the Director within 15 working days of the date of this decision (or if it wishes to do so, pay the requisite amount to the Director in trust), that is, 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 within that time. If the applicant does so, he may then request that the Board extend the time for the making of his application for review of the Order and provide the Board with the grounds for his request.
9If the applicant requests that the Board extend the time for making this application, once the condition set out in section 68(7) of the Act has been satisfied, the Board will consider the applicant’s request at that time and determine whether to extend the time or dismiss the application. 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.
10This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board