Ontario Labour Relations Board
File No.: 3566-00-ES Employment Practices Branch File No.: 43002665
Donato Salon & Spa, Applicant v. Shannon Wilson; Laura Virdo; Frank Germana; Lisa Carnevale; Gerry V. Mulligan, Employment Standards Officer and Ministry of Labour, Responding Parties.
Before: Harry Freedman, Vice-Chair.
Decision of the Board; May 17, 2001
1Gerry V. Mulligan, Employment Standards Officer issued Order to Pay No. 55180 against the applicant on October 13, 2000 (the “Order”). It was addressed to the applicant at 100 City Centre Drive, Mississauga. On January 31, 2001, Mr. Mulligan signed a letter addressed to Intertechnique Hair Salons Incorporated, 2133 Royal Windsor Drive, Mississauga (“Intertechnique”) advising that the Order was amended to name Intertechnique. On March 5, 2001, the applicant sent an application for review of the Order under section 68 of the Employment Standards Act, R. S. O. 1990, c. E. 14, as amended (the “Act”) to the Board by facsimile transmission. Subsequently, on March 28, 2001 that same material was delivered to the Board. Intertechnique, by cheque dated February 19, 2001 in favour of the Director, paid the amount required by the Order.
2The Board, by letter to the applicant dated May 2, 2001, advised the applicant that it appeared its application for review of the Order was untimely and invited the applicant either to seek an extension of time within which to file the application or, if it believed the application was timely, to set out the basis for its position.
3The applicant by letter to the Registrar dated May 8, 2001 (delivered to the Board on May 14, 2001) submitted that its application (which it says was made on March 5, 2001) was timely because the Order was amended on January 31, 2001 but was only received by the applicant on February 19, 2001 after it was sent a second time by facsimile transmission. The applicant’s letter suggests that the January 31, 2001 letter was sent by the Registrar. That is incorrect. The sender of the letter was someone within the Ministry of Labour, not the Board’s Registrar.
4In any event, whether the application was filed on March 5, 2001 when it was sent to the Board by facsimile transmission (contrary to Rules 9 and 17 of the Board’s Rules of Procedure) or when it was delivered to the Board by courier on March 28, 2001, the application was untimely if the date of the Order was October 13, 2000. If, however, the amendment to the Order on January 31, 2001 is taken as the date of Order to Pay No. 55180, then if the application is treated as having been filed on March 5, 2001 it was timely, but if it was filed on March 28, 2001 when it was properly delivered, it was untimely.
5In my view, the Board’s Rules are quite clear. Rule 9 requires that all filings with the Board be made in the proper form and in the way required by the Rules. Rule 17 provides that applications may not be filed by facsimile transmission. Rule 107, which relates specifically to applications under the Act, suggests that Rules 9 and 17 apply to applications under the Act. Thus, I am satisfied that this application was made when it was delivered to the Board on March 28, 2001. Thus, regardless of whether the date of the Order was October 13, 2000 or January 31, 2001 when it was amended, the application was untimely.
6The Board may, under section 68(4) of the Act extend the time for applying for a review of an order to pay if the Board considers it appropriate to do so. In this case, it is not at all apparent that the applicant was aware of the Order since it was not addressed to the applicant’s offices, as indicated in the application. Furthermore, the applicant asserts that it did not receive the letter amending the Order until February 19, 2001. Upon receipt of that letter, Intertechnique immediately made the payment to the Director.
7While it is unclear what the relationship is between the applicant and Intertechnique and it is also unclear how the Order was amended by the Employment Standards Officer (i.e., was the applicant removed from the Order and replaced by Intertechnique or was Intertechnique simply added to the Order so that two employers became responsible to pay the Order), it is obvious that Intertechnique has paid the Order so that this application filed by the applicant can proceed and that the applicant wishes to proceed with the application for review.
8The applicant moved promptly once it received the correspondence from the Ministry of Labour about the amended Order and also responded immediately to the letter from the Registrar. The applicant also appears to have substantial grounds for challenging the basis of the Order, which appears to have awarded termination pay to four former employees of the applicant. The applicant takes the position that those four employees had given notice of resignation because they were opening their own salon business and ceased their employment. (It is not clear if the applicant terminated their employment after they gave notice that they were resigning or if those four employees resigned immediately and voluntarily terminated their employment on the day they gave the applicant notice. That issue will, of course, have to be determined should the matter proceed to a hearing.)
9Under these circumstances, the Board is satisfied that it is appropriate to extend the time for applying for review to March 28, 2001, the date upon which the application material was filed with the Board in accordance with the Board’s Rules.
10This matter is referred to the Registrar.
11This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board