Rajeev K. Dhirar v. APA Precision Machine & Tools Ltd.
File No.: 1155-01-ES Employment Practices Branch File No.: 41009843
Before: Harry Freedman, Vice-Chair.
Decision of the Board: July 24, 2001
Decision
1The applicant, on July 18, 2001, purported to file an application for review under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as am. of the refusal of Employment Standards Officer Nancy Walters to issue an order to pay. The applicant was advised of Ms. Walter’s decision by letter dated April 3, 2001.
2The agent representing the applicant, Basra & Basra (Paralegal) Associates, wrote to Ms. Walters by letter dated May 10, 2001 advising that they represent the applicant and they wish to have a review of her decision. On July 18, 2001, the applicant’s agent, by letter to the Registrar dated July 12, 2001 filed 6 pages of documents with the Board that purported to be the application in this matter. Those six pages of documents were: the covering letter of July 12^th^, the April 3^rd^ letter advising of the refusal to issue an order, the May 10^th^ letter to Ms. Walters, a letter dated July 6, 2001 to Ms. Walters asking about a response to the letter of May 10^th^ from the applicant’s agent and pages 3 and 4 of Form A-69 (Application for Review Employment Standards Act).
3Section 68(3)(b) of the Act provides, in part:
(3) An application for a review must be made,
(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal.…
It is clear that if what the applicant’s agent filed with the Board on July 18^th^ was an application for review, it was untimely as it was filed well after the time prescribed by section 68(3)(b) of the Act. The last day for filing a timely application for review of Ms. Walter’s refusal to issue an order was May 18, 2001, that is, 45 days after the date of Ms. Walter’s letter of April 3^rd^ advising the applicant of her refusal.
4The letter of July 12^th^ from the applicant’s agent requested an extension of time and set out the reasons for the request. That letter stated:
We now represent Mr. Rajeev K. Dhirar.
On May 10^th^, 2001 we wrote a letter to Nancy Walters the Employment Standards Officer of York District Office informing her that we studied in detail officer #282’s narrative report pertaining to our client.
We told her that the report is vague, un substantiated [sic], questionable and erroneous.
We, therefore, requested her for review [sic] of her decision. (A copy of said letter is attached with this application.)
Unfortunately, we did not receive any communication from Nancy Walters.
On July 6^th^ 2001 we wrote back to her for our May 10^th^ letter’s response. A copy of said letter is attached) [sic] It was only today that Nancy Walters called us and told us that she had sent us Form A69 around 15^th^ May 2001. Unfortunately we did not received [sic] it.
We, therefore, have run short of time. Our 45 days of appeal time has transpired.[sic] We, therefore, request you to allow us an extension so that we are able to successfully appeal the decision according to an acceptable process.
Enclosed please find Form A69 fully completed. Thanking you in anticipation.
As noted above, the applicant’s agent filed only pages 3 and 4 of Form A-69. Pages 1, 2 and 5 were not filed. In addition, although page 3 of the form identifies the applicant and his representative correctly, page 4 of the form, which requires the applicant to provide the name and address of the Officer, sets out the name and address of the applicant. Page 4 of the application also states that the applicant “must include a concise statement of the facts and events upon which you rely to support your request for review.” In response, the applicant’s agent has stated: “Please see the attached letter.” The attached letter is the letter of May 10, 2001 in which the applicant’s agent advised that they have studied the Officer’s report and then stated: “It is vague and un substantiated [sic]. The result of your audit is also questionable and erroneous.”
5This application for review was filed with the Board two months late. Section 68(4) of the Act provides:
…the Board may extend the time for applying for a review if it considers it appropriate to do so.
The essence of the explanation for the late filing of the application was that the applicant’s agent had written to the Employment Standards Officer seeking a review and had not heard back from her until well after the time had expired for making an application for review. In my opinion, the applicant’s agent knew or should have known that an application for review of the Officer’s decision is governed by the Act. The letter from the officer advising the applicant of the refusal to issue an order informed the applicant of the right to apply for review within 45 days of the date of the letter providing the employee with the Officer’s decision and stated: “The Employment Standards Act states that an employee may apply for a review if dissatisfied with the decision of the Officer.” Had the applicant or his representative done even a cursory review of the Act, it would have been obvious that an application for review must be filed with the Board. In my view, the failure of the applicant (who is responsible for the actions of the agent he retained) to file a timely application seems to have resulted from a belief that the Employment Standards Officer who refused to issue an order is also the person to whom an application for review was to be addressed. The applicant’s agent did not provide any explanation for waiting until he had heard back from the Employment Standards Officer before contacting the Board.
6Although the applicant had not filed the application in the proper form (as three of the five pages of Form A-69 were not sent to the Board by the applicant’s agent) and therefore the Board, under Rules 9 and 39 of the Board’s Rules of Procedure, might have refused to process and therefore have dismissed the application because it was not filed in the proper form, the Board does have the power under Rule 44 to relieve against the strict application of the Rules. Since the name of the applicant, the applicant’s agent, and the applicant’s employer were included in the material filed, and as the name of the Officer and the nature of the application were apparent from the letters that the applicant’s representative had filed with the two pages of Form A-69, the failure to file the complete Form A-69 is not, in my view, a basis for dismissing the application or refusing to extend the time for making an application.
7One of the factors the Board will, however, consider in determining whether it is appropriate to extend the time for making the application is the basis of the application. Where an application for review is untimely but has considerable merit based only on a review of the grounds set out in the application the Board is more inclined to extend the time for making the application. Where an untimely application does not disclose the facts upon which the applicant relies in support of the application, then in my opinion, the Board should be loathe to extend the time for what may be an unmeritorious proceeding. In this case, the applicant (by his agent) has merely asserted that the Officer’s report was vague, unsubstantiated, questionable and erroneous. Despite the direction in Form A-69 to “include a concise statement of the facts and events upon which you rely to support your request for review”, the application (and the letters attached to it) contain no facts to support the conclusions asserted by the applicant. The Board therefore cannot assess what merit, if any, there may be to the application. Since it is the applicant who seeks to have the Board exercise its discretion to extend the time, the consequence of the Board’s inability to assess the merits of the application because of the failure to provide any factual grounds for seeking a review of the Officer’s decision must fall on the applicant.
8In view of the applicant’s failure to provide a justifiable explanation for filing this application for review two months late together with a complete absence of any factual grounds for asserting that the Officer’s decision refusing to issue an order was incorrect, the Board does not consider it appropriate to extend the time for applying for review of the refusal of Employment Standards Officer Nancy Walters to issue an order.
Disposition
9This application for review is dismissed.
“Harry Freedman”
for the Board