Robert A. Lanciault operating as the Online Creator and Online Creator Inc. v. James Heinrich and Ministry of Labour
0855-01-ES Robert A. Lanciault operating as the Online Creator and Online Creator Inc., Applicant v. James Heinrich and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 22 023051
BEFORE: Caroline Rowan, Vice-Chair.
DECISION OF THE BOARD; December 7, 2001
1This is an application filed under section 68 of the Employment Standards Act, R.S.O. 1990 c. E-14, as amended (the “Act”) in which the applicant requests review of an Order to Pay dated June 6, 2001.
2The Order to Pay was issued on behalf of the claimant, James Heinrich, and is in the amount of $1,450.90 plus $145.09 (10% statutory administration cost) for a total of $1,595.99.
3On October 30, 2001, the responding party employee, James Heinrich, wrote to the Board advising that he is withdrawing his claim against the applicant and asked that the amount of $1,450.90 (which is currently being held in trust) be returned to the applicant.
4The Ministry of Labour (the “Ministry”), a party to this proceeding, objects to a direction from the Board for the return of the monies currently held in trust to the applicant on the basis of the responding party employee’s request for same alone. It submits as follows:
The Ministry takes the position that an employee does not have the jurisdiction to withdraw his/her claim after an Order to Pay has been issued. Only the Employment Standards Officer, the Director of Employment Standards or his/her designate can withdraw the Order to Pay.
The Ministry takes the position that the Board cannot refund the Administration Fee to the Employer in the absence of a hearing.
The Ministry takes the position that the employer must request the return of the Administration Fee from the Director of Employment Standards pursuant to section 69.1(6)(b).
5Although the applicant and the responding party employee were afforded an opportunity to file responding submissions to the Ministry’s objection set out above, neither of these parties filed any responding submissions with the Board within the time specified in the Board’s decision of November 21, 2001.
6Having considered the Ministry’s objection and having regard to the Board’s decision in Equifax Canada Inc., unreported decision dated February 21, 2000 in Board File No. 3048-99-ES, the Board is satisfied that the monies currently held in trust should not be returned to the applicant in the absence of the consent of all of the parties. The applicant employer initiated this application for review and the claimant is a responding party to this proceeding. The Ministry and the Employment Standards Officer who issued the Order to Pay are, however, also parties to this proceeding, who are entitled to oppose the application for review despite the fact that the claimant has now withdrawn his claim against the applicant.
7The Board is satisfied based on the claimant’s correspondence of October 30, 2001, that the claimant no longer has any interest in this matter and would therefore be content to have this application for review allowed in its entirety with the payment made by the applicant which is currently being held in trust returned to the applicant. The Ministry and the Employment Standards Officer have not, however, indicated at this stage whether or not they are prepared to consent to the application being allowed in the circumstances.
8The Board directs the parties to this application to advise the Board by no later than December 21, 2001 whether they consent to the Board allowing the application for review and directing the return to the applicant of the entire amount paid by it to the Director (including the statutory administration fee), which is currently being held in trust. If the Board does not receive any submissions on or before December 21, 2000, it will assume that the parties have consented to the Board issuing a decision allowing the application and directing the Director to remit to the applicant the amount received from the applicant. If a party objects to the Board issuing such a decision, it must advise the Board and the other parties of its objection and the basis of its objection by no later than December 21, 2000.
9This panel remains seized of this matter.
“Caroline Rowan”
for the Board