Rainbow Concrete Industries Limited v. Darren Carniello and Ministry of Labour
0936-01-ES Rainbow Concrete Industries Limited, Applicant v. Darren Carniello and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 10004371
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; August 16, 2001
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. 56530 issued by Employment Standards Officer Diana Rawlick-Bradley on May 4, 2001 ("the Order").
2The application was filed with the Board on June 25, 2001. It should have been filed on June 18, 2001 to have been timely. The Order clearly states that if the employer intended to seek review of it, the application for review 'must be made with 45 days of the date of this order'.
3The applicant explains the reason for the late filing. It received a covering letter from the Employment Standards Officer dated May 4, 2001 with the Order which stated that the application could be filed within 45 days 'from the date of service' of the Order. This is, of course, incorrect and different from what the Order itself says, that the 45 days runs from the date of the Order. The applicant says it also sought advice from the Employment Standards Officer who confirmed the 45 days begins to run from the date of receipt of the Order, not the date of the Order itself. On the basis of the covering letter and the Employment Standards Officer's advice the applicant estimated it had to file its review application by June 20, 2001.
4The applicant says it filed its application and the cheque it was required to pay on June 18, 2001 in the Ministry of Labour in Sudbury. No explanation is given why the applicant chose this method for filing its application. It is not in compliance with the requirements for the filing of an application. The Order states any review application must be filed with The Registrar, Ontario Labour Relations Board, 505 University Avenue, 2nd Floor, Toronto, Ontario M5G 2P1.
5The application is untimely. The applicant asks for an extension of time in order to make it timely. It suggests, correctly in my view, that no prejudice has been occasioned by the brief period in the filing of its application. The applicant made an earlier attempt to challenge the Employment Standards Officer's decision before the Order was issued and it seems clear that the applicant had a clear intention to file an application for review from the time the Order was issued. Its errors in calculation of the time was due, in part, to mistaken advice it received. Its delivery of the application to the wrong office is not so serious an error as should deprive the applicant of the opportunity to pursue the application where, as here, the applicant intended to appeal the decision and made reasonable efforts to do so in an expeditious manner.
6In these circumstances an extension of time is granted to the applicant for the filing of its application until June 25, 2001.
"Christopher J. Albertyn"
for the Board