Douglas Quirt v. The King’s Health Centre Corporation
0763-01-ES Douglas Quirt, Applicant v. The King’s Health Centre Corporation, King’s Health Centre Ltd., Trina Abrams, Hanna Adler, Ivy Alajar et al (Employees), Lesia Fadalti (Employment Standards Officer) and Ministry of Labour Responding Parties.
Employment Practices Branch File No. 32007238
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; July 3, 2001
Douglas Quirt was named as an employer in Order to Pay No. 57733 issued by Employment Standards Officer Lesia Fadalti on May 2, 2001 (the “Order”) together with The King’s Health Care Corporation and King’s Health Services Ltd. Ms. Fadalti served Mr. Quirt with the Order and described him as the President and Administrator. In the narrative report accompanying the Order, Ms. Fadalti named the employer as King’s Health Care Corporation and King’s Health Services Ltd. and Douglas Quirt. Although all three persons were named as the employer, the narrative report prepared by Ms. Fadalti does not make any reference to section 12 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as am. (the “Act”) nor are there any findings in the material filed with the Board suggesting that those three persons carried on associated or related activities or businesses. In any event, the Order requires the employer (King’s Health Care Corporation, King’s Health Services Ltd. and Douglas Quirt) to pay $1,477,025.12 to the Director in respect of termination pay, vacation pay and statutory administration costs.
Mr. Quirt, on June 25, 2001 filed a Form A-69 with the Board in which he purports to apply under section 68 of the Act for review of the Order. Mr. Quirt had filed material with the Board on June 8, 2001 by which he expressed his intention to apply under the Act to the Board for review of the Order.
The material filed by Mr. Quirt on June 25, 2001 also included an application for judicial review of the decision of Ms. Fadalti and the affidavit of Mr. Quirt in support of that judicial review application filed by Mr. Quirt in the Divisional Court.
Mr. Quirt included in his material filed with the Board on June 25, 2001 a request that the “Ontario Labour Relations Board, pursuant to s. 68(4) of the Employment Standards Act, R.S.O. 1990, c. E. 14 extend the time for applying for the review provided for in s. 68 until the application to Divisional Court for Judicial Review has been concluded.”
Section 68 of the Act sets out the procedural requirements an applicant must meet for an application for review of an order to pay to 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.
Mr. Quirt is clearly a person aggrieved by the Order and is therefore entitled under section 68(1) of the Act to apply to the Board for review of the Order. It is also clear that the Board, by reason of section 68(7) of the Act, cannot proceed with the application for review unless the amount required by the Order is paid to the Director of Employment Standards (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 delivered to the Director, the Act expressly provides that the application for review “is not properly made and the Board shall not proceed with the review”.
Although Mr Quirt filed the proper form for making an application for review he has not, quite understandably, yet made the payment required by the Act or given the Director an acceptable irrevocable letter of credit that is necessary in order for this application for review to proceed. Under the circumstances, the Board is precluded from even considering whether it is appropriate to extend the time for making an application for review until either the payment or an arrangement for an irrevocable letter of credit acceptable to the Director is made. If Mr. Quirt does wish to proceed with this application for review and have the Board consider whether it is appropriate to extend the time for making the application, he must provide the Board with proof of the requisite payment or provision of the acceptable letter of credit within 30 working days of the date of this decision.
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 filed with the Board on or before August 16, 2001, this application will be dismissed. If the payment is made or irrevocable letter of credit acceptable to the Director is provided and proof of payment or provision of the irrevocable letter of credit is filed with the Board and an extension for applying for review is sought by that date, the Board will determine at that time whether it is appropriate to extend the time for applying for review of the Order or dismiss this application for review.
While the Board is not in a position to comment upon the merits of the application for review under the Act, in the circumstances, the Board has some sympathy for the situation faced by Mr. Quirt who has been named as the employer in the absence of any findings by the Officer under section 12 of the Act and who appears to be jointly and severally liable personally to satisfy the Order that requires a payment of almost 1.5 million dollars when there was nothing in the material giving rise to the Order to suggest that Mr. Quirt was even a director of the two corporations that were also named as the employer. Indeed, Mr. Quirt’s affidavit filed in the application for judicial review states: “Roman (Ron) Koval was the sole Director of the King’s Health Centre Corporation and King’s Health Services Ltd.” Perhaps the Director may be prepared to make some arrangement with Mr. Quirt to accept an irrevocable letter of credit for an amount that is considerably less then the amount of the Order so as to allow Mr. Quirt to proceed with this application. That, however, is not a matter for the Board but rather a matter for the Director and Mr. Quirt.
Should it become necessary to consider this matter further, either because the application for judicial review by Mr. Quirt is unsuccessful or because Mr. Quirt has either paid the requisite amount to the Director or provided the Director with an acceptable irrevocable letter of credit, the panel of the Board assigned to the matter at that time will determine whether it is appropriate to extend the time for making the application for review of the Order.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board