Ontario Labour Relations Board
File No.: 0705-01-ES Employment Practices Branch File No.: 51078402
Richard Porter, Applicant v. Gayle Porter, and Ministry of Labour, Responding Parties.
Before: David A. McKee, Vice-Chair.
Decision of the Board; June 14, 2001
Decision
1This is an application for a review of a decision of an employment standards officer pursuant to section 68 of the Employment Standards Act, R.S.O. 1990 ch. E-14 ("the Act"). The officer issued an Order to Pay totalling $11,000.00 on April 20, 2001. Essentially, the officer found that the applicant, Richard Porter, was the employer of Gayle Porter (his spouse) and that he owed her $10,000.00 in unpaid wages. The applicant asks the Board to review and reverse the decision of the officer.
2However, the Act requires that a party seeking to apply for a review of a decision must pay, to the Director of Employment Standards in trust, the full amount of the Order to Pay, including the 10% Statutory Administration Costs. Section 68(7) of the Act provides as follows:
- (7) An application for a review of an order requiring the applicant to pay an amount is not properly made and the Board shall not proceed with the review unless, within the time for applying for the review, the applicant pays the amount to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.
In this case the application was accompanied by a receipt for payment in the amount of $4,272.00. By letter dated May 30, 2001, the applicant offered the following explanation:
I have paid the $11,000 order, incorrectly I fear, as I paid $4272 into your Trust Account and the remainder, $6728 directly to my wife (who is claiming this money).
3Even assuming this to be true, the Board cannot deal with this application. The Act provides as follows:
- (1) This section applies if an employment standards officer finds that an employee is entitled to wages from an employer.
(1.1) The employment standards officer may arrange with the employer that the employer pay the wages owing to the employee directly to the employee.
(1.2) The employment standards officer may order the employer,
(a) to pay the wages owing to the employee to the Director in trust; and
(b) to pay an amount equal to the greater of $100 or 10 per cent of the wages to the Director for administrative costs.
(6) Every employer to whom an order is issued under subsection (1) shall comply with it in accordance with its terms.
The Act does not contemplate a process whereby an employer may satisfy an Order to Pay by paying the employee part of the money and the rest to the Director in trust. This is particularly so when the applicant asserts that no money at all is owing. That is, he does not admit one portion of the Order to Pay is properly owing but that another portion is not. Section 65(1.1) contemplates that an employment standards officer (not the employer himself or the Director) may arrange payment directly to the employee (thus avoiding the need to issue an Order to Pay). In that case the payment would terminate the dispute in such a manner that neither of the parties could seek an application for review.
4Section 68(7) is clear and the Board has no jurisdiction to vary or modify it. The full amount of the $11,000.00 must be paid into trust before the Board can process this application. It may or may not be possible to recover the $6,728.00 on the grounds that the money has already been paid. That will have to be determined by the panel of this Board, if any, hearing the merits of the application.
5If the applicant proposes to pay the rest of the money in the Order to Pay and proceed with the application, he will have to apply for an extension of time for the filing of the application. Section 68(3) and (4) provide:
- (3) An application for a review must be made,
(a) in the case of an application for a review of an order, within 45 days after the date of the order;
(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 or the date on which the refusal was deemed to have occurred under subsection 67 (2).
(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.
6However, as the full amount of the Order to Pay has not been paid, the Board may not proceed to deal with this application. The Board is without the statutory authority to do so.
“David A. McKee”
for the Board