Ontario Labour Relations Board

3867-00-ES 1347397 Ontario Inc. o/a Willee D’s Restaurant, Applicant v. Joel Bannister; Pam Yuhasi; Marla Leadston; Mark McGinnis; Andrew Steepe, Employment Standards Officer and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 61005118

BEFORE: Harry Freedman, Vice‑Chair.

DECISION OF THE BOARD; May 17, 2001

1. 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. 55332 dated February 8, 2001 (the “Order”) issued by Employment Standards Officer Andrew Steepe. The application was filed with the Board on March 28, 2001. The applicant also provided a cheque payable to the Ministry of Labour in payment of the Order. It appears therefore that the applicant had made a timely application for review.

2. The Ministry of Labour advised the Board by letter dated April 30, 2001 (which was only brought to my attention on May 16, 2001) that the 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.

3. 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.

Section 68 (7) of the Act is quite clear. The Board “shall not proceed with the review” and an application for review “is not properly made” unless the applicant either pays the amount required by the order to pay to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.

4. 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 there being insufficient funds in the account to cover the cheque.

5. The applicant is therefore directed to pay to the Director on or before May 31, 2001 the amount required by the Order and to provide the Board with a copy of the proof of payment by that date. In addition, since the requisite payment was not made within the time stipulated by section 68(3)(a) of the Act, if the applicant still wishes to proceed with its application for review, it must, on or before May 31, 2001, file with the Board together with the copy of the proof of payment, a request that the Board extend the time for applying for review of the Order and set out in its request all of the facts and circumstances it relies upon for seeking that extension. Should the payment not be made to the Director by May 31, 2001 or should the proof of payment and the request for an extension not be filed with the Board by May 31, 2001, this application will be dismissed. Should the payment, proof of payment and request for an extension be filed within the time fixed by the Board, the Board will consider whether, in the circumstances, it is appropriate to extend the time for applying for review of the Order .

6. This panel of the Board is not seized with this matter.

“Harry Freedman”

for the Board