Court File and Parties
File No.: 1924-01-ES Employment Practices Branch File No.: 41010215 Date: 2001-10-26 Ontario Labour Relations Board
Applicant: White Oak Cleaners (2001) Ltd. Responding Parties: Judy Rutledge; Nancy Walters, Employment Standards Officer; and Ministry of Labour
Before: Harry Freedman, Vice-Chair
Decision of the Board
1Employment Standards Officer Nancy Walter issued Order to Pay No. 47196 dated August 28, 2001 (the "Order") directing the applicant to pay $4,596.00 in respect of unpaid wages and statutory administration costs. The applicant, on October 12, 2001 purported to file an application for review of that Order with the Board under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as am. (the "Act"). The applicant also transmitted a letter to the Board on October 11, 2001 in which it set out a number of reasons for challenging the Order. The applicant did not, however, make the requisite payment to the Director. Rather, the applicant in its application form stated:
Need extension to arrange for letter of credit as funds are on hold or to make arrangements with the Board to allow us to pay in installments.
The applicant, in its letter to the Board, stated:
We need an extension to submit the application for review. The extension is required as to [sic] arrange for letter of Credit, as my funds are on hold, or make arrangements with the board to allow us to pay in installments.
The applicant appears to believe that the Board has some ability to make arrangements to allow the Order to be paid in instalments while proceeding with the application for review or can extend the time for making the application to allow the applicant to arrange for a letter of credit.
2An application for review of an order to pay issued under the Act 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.
3Although 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 to permit the applicant's 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, it 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.
4Furthermore, 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 November 19, 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.
5This panel of the Board is not seized with this matter.
"Harry Freedman"
for the Board