1430-00-ES Mary B. MacNay, a Director of MacNay’s General Store Ltd., Applicant v. MacNay’s General Store Ltd., Robert A. MacNay (Director), Bill Graham (Director), Naomi Powell et al (Employees), Debra Kokovai, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 60007240
1431-00-ES Robert A. MacNay, a Director of MacNay’s General Store Ltd., Applicant v. MacNay’s General Store Ltd.; Mary B. MacNay (Director), Bill Graham (Director), Naomi Powell et al (Employees), Debra Kokovai, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 60007240
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; May 24, 2001
Counsel for the applicants in these two applications, in a letter to the Registrar dated May 17, 2001, seeks clarification of the notice of hearing he had received in the application in Board File No. 1431-00-ES. Counsel indicates that he acts for both Robert MacNay (the applicant in Board File No. 1431-00-ES) and for Mary MacNay (the applicant in Board File No. 1430-00-ES). Counsel also states that both Robert MacNay and Mary MacNay “…have been named in separate matters before the Ontario Labour Relations Board concerning the non-payment of employees of MacNay’s General Store Limited.”
The proceeding in Board File No. 1431-00-ES is an application for review of Order to Pay No. D 03831 issued by Employment Standards Officer Debra Kokovai on June 26, 2000. The Board, differently constituted, by decision dated October 16, 2000 found it appropriate to extend the time for making that application for review. It had been filed on August 14, 2000, four days after the expiry of the 45 day time limit found in section 68(3) of the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the “Act”).
The proceeding in Board File No. 1430-00-ES is an application for review of Order to Pay No. D 03833 issued by Employment Standards Officer Debra Kokovai on July 24, 2000. That application for review had also been filed on August 14, 2000, well within the 45 day time limit under the Act.
Although the Board issued a Confirmation of Filing of Application for Review under Section 68 of the Act (Form B-78) on November 2, 2000 in both proceedings and appointed a Labour Relations Officer to endeavour to effect a settlement of both applications, the Officer’s Report that no settlement was reached after his meeting of March 16, 2001 related only to the application in Board File No. 1431-00-ES, and for that reason the Notice of Hearing (Form B-90) that the Board issued on April 19, 2001 only related to that application.
Following receipt of counsel’s May 17, 2001 letter, the Registrar reviewed both files and has now issued a Notice of Hearing (Form B-90) in Board File No. 1430-00-ES together with a covering letter indicating that the application in Board File No. 1430-00-ES will be heard together with the application in Board File No. 1431-00-ES.
Counsel for the applicants advised that none of the respondents had attended at the Officer’s meeting in March and asks whether the matter will proceed or be adjourned should they not attend the hearing on June 5, 2001. Whether the matter proceeds at that time and what the result will be should the respondents not attend the hearing is a matter for determination by the panel of the Board assigned to hear the matter. The Board cannot make a ruling as to the disposition of the matter prior to the hearing by reason of section 68(8) of the Act.
Finally, counsel requests a copy of any documents filed by the respondents. I note that counsel for the applicants, by letter dated April 23, 2001 requested that the Officer provide him with copies of the materials filed by the claimants. There is no indication in the file whether counsel received a response to that request.
It appears from a review of the file material that only the Ministry of Labour has filed material relating to the individual claims of the four claimants. In addition, the trustee in bankruptcy of the estate of William Graham filed material with the Board relating to the assignment in bankruptcy that had been filed by William Graham on December 14, 1999. There does not appear to have been any material filed with the Board by any of the four individual claimants. If counsel for the applicants wishes to obtain the documents or material, if any, that the Employment Standards Officer or the Ministry of Labour may have received from the individual claimants, than that is a matter that counsel for the applicants may address to them.
These two applications will therefore proceed to hearing before the Board in accordance with the Notices of Hearing issued by the Registrar.
This panel of the Board is not seized with these matters.
“Harry Freedman”
for the Board