Steven McJannet v. Piconeri Contractors Limited
3724-00-ES Steven McJannet, Applicant v. Piconeri Contractors Limited; E. Robert Unger (Employment Standards Officer) and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 10004299
BEFORE: Harry Freedman, Vice-Chair
DECISION OF THE BOARD; May 14, 2001
This is an application for review under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act") for review of the refusal of Employment Standards Officer E. Robert Unger to issue an order to pay. The letter advising the applicant of Mr. Unger’s decision was dated January 26, 2001. The applicant filed his application for review with the Board on March 16, 2001, the day it was received by the Board. The applicant had sent his application for review by registered mail on March 13, 2001. The last day for filing a timely application was March 12, 2001. The Registrar of the Board, by letter to the applicant dated March 26, 2001, advised the applicant that the application appeared to be untimely as it had not been filed within 45 days of the date of the letter advising of the refusal to issue an order, but that he could seek an extension of time for making the application from the Board.
The applicant filed his response to the Registrar’s letter on April 6, 2001 by letter dated April 3, 2001. Unfortunately, the applicant’s letter was not brought to my attention until Friday afternoon, May 11, 2001.
Section 68 (4) of the Act permits the Board to extend the time for making an application for review if the Board considers it appropriate to do so. The applicant’s letter of April 3, 2001 seeks an extension for making the application. The applicant indicates that he believes that he had filed the application “before the 45 day request.” He also states that he has other reasons for being granted an extension of time. He submits that he had called the toll free number to the Ontario Labour Relations Board to seek information with request to completing the application in form A-69. In his application for review, he stated that he had tried to obtain information a month prior to filing the application but had not received a return call. He also indicates that when he did speak to a person directly, he was assisted in completing the form and it was filed the next day.
Although the applicant suggests that the application was timely, the last day for filing a timely application for review of the Officer’s refusal to issue an order to pay was March 12, 2001. I note that the application was filed on March 16, 2001, four days after the expiry of the 45 day period for making a timely application, but was given to the post office to mail by registered mail on March 13, 2001. Furthermore, the applicant had been endeavouring to make the application well before the 45 day time period had elapsed. I am satisfied that the applicant had formed the intention to make the application for review and had taken steps consistent with that intention within the time for making the application.
The application also appears to raise serious issues. The applicant claims that he had kept accurate records of his work activities with respect to Piconeri Contractors Limited (“Piconeri”) as well as others for whom he performed work. He indicates in his application that the principals of Piconeri had balked at paying him for all the time he worked shortly after he had started. The letter refusing to issue an order indicated that the Officer “was not able to support [the applicant’s] claim for any additional hours worked for lack of direct evidence.” Attached to the application for review were the applicant’s records. There is no indication in the letter refusing to issue an order why the applicant’s records and his statements to the Officer about when he worked were not “direct evidence”. It is also unclear from the Officer’s letter of January 26, 2001 whether Piconeri had provided records that contradicted the claim of the applicant.
Based on the circumstances described in paragraphs 4 and 5, the Board considers it appropriate to extend the time for making this application. Therefore, the Board hereby extends the time for applying for review of Employment Standards Officer E. Robert Unger’s decision refusing to issue an order to pay dated January 26, 2001 to March 16, 2001, the date the application was made. Therefore this application for review is now timely and is referred to the Registrar.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board