Mitra Mohed Arangeh v. Galaxy Holidays, and Ministry of Labour
File No.: 1701-01-ES, Employment Practices Branch File No. 34 003013 Date: November 20, 2001 Before: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD
1The Board is in receipt of a request for reconsideration of its decision dated September 25, 2001 in this matter. In that decision, the Board noted that the application was filed beyond the forty-five (45) day deadline for filing an application for review and determined that this is not an appropriate case in which to exercise its discretion under section 68(4) of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the "Act").
2In making this determination, the Board had regard to the length of the delay and the contradictory explanation offered for it. That decision reads, in part, as follows:
- The Order to Pay was issued on June 21, 2001 and the forty-five (45) day deadline for filing an application for review ended on August 7, 2001. The applicant explains her delay in filing this application as follows:
The order* was issued on June 21, 2001, when I was on a 2.5 months trip from June 14, 01 till Sep 02, 01 to overseas* (the copy of the ticket is attached).
At my absence my sister faxed the application form of the appeal with the Labor Relations Board on July 09, 01, which unfortunately was not filed and submitted personally. The form was not found by the secretary and the related staff of the board. Therefore, we were not able to follow the case with the board at the determined period. The order was sent to my sister's address who had not received it until it was faxed to her office on September 06, 01* (the attached copies of the order shows her address and date of the faxed letter). Therefore, we had not been informed about the 45 days due time for the appeal.
- On the one hand, the applicant states that she and her sister had not been informed of the forty-five (45) day deadline for filing an appeal until September 6, 2001 when the Order was faxed to her sister's office on that date. On the other hand, however, the applicant suggests that the Order was sent to her sister's address during her absence and that during that absence, her sister "faxed the application form of the appeal with the Labor Board on July 9, 2001". It appears from this latter statement that the applicant (or her sister in her absence) must have had notice of the Order to Pay on or prior to July 9, 2001 if an attempt was made at that time to file an application for review.
3In the request for reconsideration, the applicant's sister clarifies that the applicant had contacted the Ministry of Labour before embarking on a trip on June 14, 2001 and that, at that time, the "...officer of the ministry informed her of the order rendered by the ministry." In response, the applicant apparently provided the officer with her sister's name and address and asked the officer to contact her sister during her absence.
4The Order to Pay was, in fact, issued on June 21, 2001, after the applicant's departure. The Ministry maintains in its response to the request for reconsideration that "[o]n June 21, 2001, a letter was sent to the applicant's sister denying her claim". The applicant's sister, however, maintains that she did not receive the written decision at that time and that the first time she received it was on September 6, 2001 when the Ministry sent her a copy of it to her office by fax at her request. As a consequence, she states that, neither she nor the applicant were aware of the 45 day time limit for filing an application for review until September 6, 2001.
5The applicant's sister also notes that she had contacted the Ministry on or about June 26, 2001 to inquire about an appeal of the Ministry's decision and had spoken to a manager at the Employment Practices Branch, Ms. Chan, who faxed her a blank application for review form. The applicant's sister states that she then attempted unsuccessfully to file an application for review on July 9, 2001 by fax.
6In response to the request for reconsideration, the Ministry objects to the granting of the request. It "...takes the position that if the claimant and/or her sister were not aware of the decision why would they inquire about an appeal." The Ministry also notes that the application for review form clearly sets out the time limitations.
7Having carefully considered the submissions made in respect of the request for reconsideration, the Board is persuaded that it should reconsider its decision in this matter and exercise its discretion to extend the time limits for filing an application for review to September 19, 2001.
8It appears from the further submissions filed in support of this request that the applicant's sister inquired about an appeal having regard to the officer's verbal notification to the applicant (prior to the applicant's departure on June 14, 2001) of the officer's determination of her claim. Although the applicant was aware of the officer's decision prior to her departure, she states that the first time she or her sister received a copy of the officer's decision was on September 6, 2001. The applicant seeks an extension of the deadline for filing an application for review on the basis that neither she nor her sister were aware of the deadline for filing an application for review until the Order to Pay dated June 21, 2001 was received by them on September 6, 2001.
9In response, the Ministry correctly points out that the application for review form sent by fax to the applicant's sister on or about June 26, 2001 clearly notes that the deadline for filing an application for review is 45 day from the date of the Order. It appears, however, from the submissions filed by the applicant in support of her request that neither she nor her sister were aware of the date from which that 45 day time limit was to commence until September 6, 2001 when the officer's decision dated June 21, 2001 was received by them for the first time. This application for review was filed with the Board shortly thereafter on September 19, 2001.
10In all of the circumstances, the Board is persuaded to reconsider its decision and to exercise its discretion to extend the deadline for filing an application to September 19, 2001. This application should accordingly be processed in the ordinary course.
"Caroline Rowan"
for the Board