AJP Marketing Inc. v. Marc Borenstein, Michael J. O’Keeffe, Employment Standards Officer and Ministry of Labour
3647-00-ES AJP Marketing Inc. Applicant v. Marc Borenstein, Michael J. O’Keeffe, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 20035330
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; July 30, 2001
1Employment Standards Officer Michael J. O’Keeffe issued Order to Pay No. 59084 dated January 25, 2001 (the “Order”) requiring the applicant to pay $2652.60 to the Director in Trust. The applicant, on March 12, 2001 filed an Application for Review (Form A-69) with the Board by which it seeks to review the Order pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as am.. The applicant did not, at the time it filed the Form A-69 provide the Board with proof that the amount required by the Order was paid to the Director.
2Section 68(3) of the Act provides:
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.
While the proper form for an application for review was filed March 12th, the 45th day after the date of the Order, there was nothing filed by the applicant to indicate that it had paid the requisite amount to the Director in trust by that date. As a result, by reason of section 68(7) of the Act, the application for review had not been properly made on March 12, 2001. Section 68(7) of the Act provides:
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
3The Registrar, by letter dated May 8, 2001 requested the applicant provide the Board with a receipt or proof of payment of the Order. That letter also stated:
Until the receipt is provided the Application will be treated as incomplete and will not be processed further. Unless the Board grants an extension of time for making the application in accordance with section 68(4), payment made more than 45 days after the date of the Order will be untimely and the Application will be dismissed.
The Board was advised by the Ministry of Labour that a collection agency had obtained payment of the Order from the applicant. There was no indication from the applicant when it had made the payment. As a result of having received that information, the Registrar advised the applicant by letter dated June 28, 2001 that it appeared that the application for review was untimely. That letter went on to advise the applicant that if it believed its application was timely or if it wished to seek an extension of time for making the application, it had to provide the Board within 10 days of the date of the Registrar’s letter with its submission as to why its application should be considered timely or why an extension of time for making the application should be granted. As of the date of this decision, the applicant not responded to the Registrar’s June 28th letter.
4Although the applicant had filed a Form A-69 seeking review of the Order within the time prescribed by the Act, there is nothing before the Board to indicate that the requisite payment was made within that time. Therefore, pursuant to section 6(7) of the Act, the application had not been properly made within 45 days of the date of the Order. As the applicant has not provided any submissions with respect to whether its application was timely, or provided the Board with grounds for extending the time within which to make this application, the Board, based on the material before it, finds that this application for review was not made within the time prescribed by section 68(3)(a) of the Act.
DISPOSITION
5As this application for review was made more than 45 days after the date of the Order, it is untimely and therefore is dismissed.
“Harry Freedman”
for the Board