0292-01-ES Nedco, a Division of Westburne Industrial Enterprises (W.I.E.L.) Ltd. Applicant v. Fred Leblond; E. Robert Unger, Employment Standards Officer and Ministry of Labour, Responding Parties.
Employment Practices Branch File No. 11001114
BEFORE: Harry Freedman, Vice-Chair.
DECISION OF THE BOARD; June 5, 2001
This is an application under section 68 of the Employment Standards Act, R.S.O. 1990, c. E. 14, as amended (the “Act”) for review of Order to Pay No. 56504 dated March 7, 2001 issued by Employment Standards Officer E. Robert Unger (the “Order”). The application was filed with the Board on April 24, 2001. Section 68(3)(a) of the Act provides that an application for review of an order to pay must be made within 45 days after the date of the order. Thus, the last day for filing a timely application was April 23, 2001 (April 21 being the 45th day after the date of the Order, falling on a Saturday) as it was the first day after the 45th day on which the Board’s offices were open.
The applicant, by its counsel, was advised by the Registrar by letter dated May 15, 2001 that it appeared that the application had not been filed in a timely manner and that the applicant could either seek an extension of time within which to make the application or advise the Board why the application was timely. Counsel for the applicant, by letter to the Registrar dated May 25, 2001 filed comprehensive submissions for seeking to have the Board exercise its discretion under section 68(4) of the Act to extend the time for applying for review of the Order. He points out that on April 23, 2001 a messenger was given both the cheque and the application to deliver on that day. The messenger attended first at 400 University Ave to deliver the cheque to the Director and then proceeded to the Board’s offices at 505 University Ave. arriving at 5:00 p.m. He was not able to get access to the Board’s offices as the elevators had been locked. The messenger stated in his affidavit attached to the submissions of counsel that he had been given the application material on April 23, 2001 to file with the Board but had been unable to do because the elevators had been shut down when he arrived. The messenger returned the next morning to the Board’s offices and delivered the application material before 9 a.m.
The applicant’s cheque in payment of the Order was dated April 9, 2001 while the application for review of the Order in Form A-69 was dated April 23, 2001. The applicant also responded promptly to the Registrar’s letter of May 15, 2001 about the timeliness of the application and filed detailed submissions together with a supporting affidavit in support of his request to have the Board exercise its discretion to extend the time for making the application.
Section 68(4) of the Act permits the Board to extend the time for applying for a review if it considers it appropriate to do so. The application was filed on April 24, 2001, one day after the date for making a timely application. In view of the short time that has elapsed between the last day for making the application and the date when the application was filed, the applicant’s intention to have filed a timely application as evidenced by the date it prepared the application for review of the Order and cheque and the absence of any prejudice an extension of time would cause the other parties to the application when balanced against the prejudice to the applicant that would result in refusing to extend the time, the Board, pursuant to section 68 (4) of the Act, extends the time for making this application for review to April 24, 2001, the date upon which the application was received by the Board.
DISPOSITION
The time for making this application for review is hereby extended to April 24, 2001, the date upon which the application was filed with the Board.
This panel of the Board is not seized with this matter.
“Harry Freedman”
for the Board