3774-00-ES George Neufeld, Applicant v. Peter Hiebert, John Hiebert, Abe Hiebert Sr., Elizabeth Hiebert, Abe Hiebert, Tony London, Employment Standards Officer and the Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 62004829

BEFORE: Harry Freedman, Vice-Chair.

DECISION OF THE BOARD; June 1, 2001

1. This is an application for review of Order to Pay No. 55332 dated February 8, 2001 issued by Employment Standards Officer Tony London (the “Order”). This 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”) was filed with the Board on March 21, 2001. The applicant also provided a cheque payable to the Ministry of Labour in payment of the Order, but the cheque was post-dated April 30, 2001.

2. An application for review of an order to pay must be made in accordance with the process established by section 68 of the Act. The provisions of section 68 of the Act that establish the application for review process provide, in part:

(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;

(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.

The application in the proper form was filed more than 45 days after the date of the Order and therefore was untimely. In addition, as the cheque payable to the Director was post dated to April 30, 2001, the application was not properly made, in any event, until April 30, 2001.

3. The Registrar, by letter to the applicant dated April 5, 2001 advised the applicant that it appeared that his application was untimely and that if he believed his application was timely or wished to seek an extension of time within which to file the application, he was required to advise the Board within 10 days of the date of that letter, setting out in detail why the application should be considered timely or why an extension of time for filing the application should be granted.

4. The applicant, by letter to the Registrar dated April 10, 2001, but mailed, according to the postmark on the envelope, on April 24, 2001 and received by the Board on April 26, 2001 takes issue with the calculation made by the Employment Standards Officer and provides his own calculations of the amounts owing to the employees. That letter says nothing about the timeliness of his application.

5. In addition, the Board was advised by the Ministry of Labour by letter dated May 14, 2001 (which was only brought to my attention on May 29, 2001) that the applicant’s cheque used to pay the amount required by the Order was returned by the bank due to insufficient funds. Thus, it appears that in fact the amount required by the Order was not paid by the applicant. While the applicant had filed the proper form to make an application for review, the payment required by the Act in order for this application for review to proceed has not been made by the applicant since the cheque it used to make the payment had been returned by its bank due to insufficient funds in the account on which the cheque was drawn.

6. In view of the applicant’s failure to make any submissions with respect to having the Board extend the time for making the application together with the applicant’s failure to pay amount required by the Order, this application for review is not properly made and must, in the circumstances, be dismissed.

Disposition

7. This application for review is dismissed as it was not made within 45 days of the date of the Order and the applicant has failed to provide the Board with a basis on which the Board could consider it appropriate to extend the time for making the application.

“Harry Freedman”

for the Board