0522-00-ES Impact Tool & Mould Inc., Applicant v. Robert Pigeon, and Ministry of Labour, Responding Party.

Employment Practices Branch File No. 62004473

BEFORE: Brian McLean, Vice-Chair.

DECISION OF THE BOARD; May 28, 2001

1This is a request for reconsideration of the Board’s oral decision dated April 10, 2001 (confirmed in writing on April 20, 2001). All parties have filed submissions with respect to the request.

2The Board’s decision of April 10, 2001 was a decision dismissing the application. That decision was made because the applicant did not appear at the hearing.

3Counsel for the employer wrote to the Board on April 20, 2001 explaining that its failure to attend the hearing was through inadvertence. Counsel filed an affidavit of his secretary which explained that counsel’s secretary entered the wrong date into counsel’s calendar. There is no dispute that that is what in fact happened, although there has been no explanation for why Impact Tool & Mould Inc., which had also been served with a notice of the hearing, was not in attendance.

4Mr. Pigeon asserts that the Board ought not to reconsider its decision because both counsel and the employer made the same error, and he spent time, energy and expense in attending the scheduled hearing date.

5The Ministry of Labour also opposes the request for reconsideration. It relies on the principle that decisions of the Board should generally be final and that the notice of hearing specifically states that if a party does not attend, the Board may decide the application.

6The Board has on several occasions dealt with circumstances which are identical to the one before the Board in this case. In Floorco [1999] O.E.S.A.D. No. 230, the Board refused to reconsider its decision dismissing the application when the applicant failed to appear at a hearing. See also the Corporation of the City of Sault Ste. Marie, [1987] OLRB Rep. Oct. 1319 and Roma Moulding [1997] O.E.S.A.D. No. 530 which came to similar conclusions.

7I agree with those decisions.

8The Employment Standards Act covers minimum standards for employees. There is a $10,000 limit on most claims, and in fact frequently cases under the Act involve much less money. The Board has no authority to award costs. Therefore, from a purely economic perspective, it is unfair to the other parties to burden them with the added expense to rehear a case where all parties have proper notice. It is also a waste of the Board’s limited resources.

9In addition, the explanation offered by the applicant for its failure to attend the hearing is not a particularly compelling one. Parties who incorrectly diarise a hearing date must suffer the consequences of that, when to do otherwise would penalize careful parties, Mr. Pigeon and the Ministry.

10Accordingly, the Board will not reconsider its decision.

11In view of the Board’s decision, there is no need for the Board to deal with the applicant’s submissions under section 82.3 (1) of the Act.

DISPOSITION

12This application is dismissed. The Board hereby orders the director to disburse the funds held in trust as wages to Mr. Pigeon. The administrative fee paid therein is to be paid to the Government of Ontario Consolidated Revenue Fund.

“Brian McLean”

for the Board