1372715 Ontario Inc o/a Niagara Shoe Manufacturing v. Reid, 2001 CanLII 17849

File No.: 0567-01-ES Employment Practices Branch File No.: 51078400 Date: June 28, 2001

Between: 1372715 Ontario Inc o/a Niagara Shoe Manufacturing, Applicant v. Kari Reid, Kim Wilson Piper, Employment Standards Officer and Ministry of Labour, Responding Parties.

Before: Harry Freedman, Vice‑Chair.

1This is an application for review under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the "Act") of Order to Pay No. 61102 issued by Employment Standards Officer Kim Wilson Piper on March 22, 2001 (the "Order"). The application was filed with the Board on May 15, 2001 after having been forwarded to the Board by the Ministry of Labour. It is not clear how the application material came to be in the possession of the Ministry of Labour, but it seems that the application was signed by the applicant on May 3, 2001 and was sent to the Ministry of Labour together with a cheque in the amount of $387.37. The cheque was also dated May 3, 2001.

2I note that the Order named two different entities: the applicant and 459239 Ontario Ltd. o/a Niagara Shoe Factory Outlet. The application asserts that the applicant did not employ Karen Reid, the person on behalf of whom the Order was issued, and further that the companies named in the Order "are of no relationship therefore no monies are owed by Niagara Shoe Manufacturing." I also observe that the Employment Standards Officer in her narrative report did not make any findings with respect to the relationship between the applicant and 459239 Ontario Ltd o/a Niagara Shoe Factory Outlet and therefore did not make any finding under section 12 of the Act. Whether there is any merit to the application is not a matter on which I need to comment as the application has not yet been properly made.

3An application for review of an order to pay must be made within 45 days of the date of order by reason of section 68(3)(a) of the Act. As the Order was dated March 22, 2001, the last day for filing a timely application was May 1, 2001. The application was filed with the Board on May 15, 2001. Therefore it is untimely. Nevertheless, the Board does have the discretion under section 68(4) of the Act to extend the time for applying for review of an order if the Board considers it advisable to do so.

4The Order required the applicant to pay a total of $1,891.51 comprised of gross wages of $1,719.55 and statutory administration costs of $171.96. The applicant has purported to deduct $1,504.13 as statutory deductions from the gross wages portion of the Order. The applicant included a summary of statutory deductions in its material that suggests that the applicant has calculated the statutory deductions for EI and CPP based on the Ms. Reid's total earnings from 1998 to 2000. In my view, that is wholly improper.

5While the applicant may make statutory deductions from the gross assessment of wages and pay the net amount in satisfaction of an order to pay, the amount of the statutory deductions must relate to the amount of the assessment contained in the order to pay, not some other amount that the applicant considers appropriate. The applicant points out in the summary of statutory deduction that the deduction for EI is 2.4% of earnings and the deduction for CPP is 3.9% of earnings for the year 2000. Therefore, the maximum statutory deduction permitted would be 6.3% of the gross wages portion of the Order, that is 6.3% of $1,719.55 or $108.33.

6Section 68(7) of the Act requires that an applicant seeking to review an order to pay must pay the Director the amount set out in the order before an application for review is properly made. Section 68 (7) states:

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 ....

Thus, it is clear that applicant has not properly made it application for review.

7Although the applicant had filed the proper form to make an application for review, the applicant has not yet made the entire payment required by the Act in order for this application for review to proceed, since the applicant has failed to pay the amount set out in the Order. If the applicant does wish to proceed with its application, it must within 10 working days of the date of this decision pay to the Director in trust an additional $1395.80 being the difference between correct amount of the statutory deductions ($108.33), according to the deduction rate set out by the applicant and the amount it purported to withhold for statutory deductions ($1,504.13) and must provide the Board with proof of the requisite payment within 10 working days of the date of this decision.

8Furthermore, since the time for making the application for review had expired before the application form was received by the Board and in any event, by reason of section 68(7) of the Act, has not yet been properly made since the amount required by the Order has not yet been paid, 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 and set out the grounds for seeking such an extension. If the payment is not made and proof of payment is not provided to the Board on or before Friday July 13, 2001, this application will be dismissed. If the payment is made to the Director and proof of payment is provided 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.

9This panel of the Board is not seized with this matter.

"Harry Freedman"

for the Board```