Employers Seeking Review of OLRB Orders Must Pay to Play

Written by Lewis Waring, Paralegal, LL.B., Articled Clerk, Editor, First Reference Inc.

In a recent ruling, an employer’s application for review of an order to pay was denied after the employer failed to provide the required deposit. The employer had stated it had no ability to pay the deposit due to the COVID-19 pandemic, but the Ontario Labour Relations Board refused to waive the deposit. The employer offered to enter a payment plan, but the Ontario Labour Relations Board also rejected this suggestion.

Under the Employment Standards Act¸ an employer can only file for a review of an order by the Board if they pay the amount owing under the order to the Director of Labour Standards in trust or provide the Director with a letter of credit in the same amount. This amount must be paid within the 30-day time period for filing the application for review. The Board has no ability to waive this requirement. Paying this amount within 30 days is considered part of the application itself and thus any failure to pay is a failure to submit a complete application. If an employer fails to pay this amount by the deadline, its application for review will be dismissed and the initial decision will stand.

Background

The employer had originally received an order to pay an employee owed compensation owed. While the reason for this order was not included in the Board’s decision, such an order is often issued to compensate an employee for unpaid wages or other amounts. Upon receiving the order, the employer had attempted to have the order reviewed, presumably based on a conviction that the worker was owed no compensation. However, the employer’s application for review was not accompanied by the amount owing under the order. Instead, the employer’s application included a letter explaining it had not paid due to financial difficulties resulting from the COVID-19 pandemic. The letter furthermore requested that the employer be permitted to pay in instalments over time.

The Board flatly denied the employer’s request and, instead, granted the employer ten days from the date of its decision to pay the fee.

Analysis

In a legal sense, the Board’s decision was a consideration of what discretion it had to bend or adjust its rules in the interests of an employer in financial difficulty. The Board did in some sense grant the employer’s request for accommodation, but that accommodation merely granted him an extended deadline to pay. While the members of the Board may have personally wanted to permit the employer to make its case for a review, the reality is that the Employment Standards Act prevents them from doing so. The structure of the Board itself tightly constrains the Board from granting accommodation to employers that are unable to afford an application to review an order. The structure of the Board, in other words, prioritizes employees’ collection of unpaid wages over employers’ access to justice. This prioritization of employees over employers derives from the purpose of the Employment Standards Act. The Employment Standards Act, after all, is legislation tasked with, among other goals, defending the rights of employees to minimum standards of compensation. To this end, the Board is, by design, required to only review its orders to pay after an employer has paid any amounts owed within 30 days. While the Board does have some discretion to grant a small extension, it has no ability to assist an employer under financial constraint.

Takeaway

Employers who may be more familiar with legal processes in civil courts or human rights tribunals will find some features of labour boards such as the Ontario Labour Relations Board unique. While each province differs, the Board demonstrates the ways in which labour boards place strict obligations on employers. Many employers find themselves on the receiving end of an order to pay an employee that they feel has been issued wrongfully. In many cases, such feelings may be completely justified. That is, an employee may indeed secure an order to pay from the Board based on fabricated claims. If so, an employer’s convictions will likely be justified and the order overturned upon review. However, to have the opportunity to make its case, an employer must pay the amount allegedly owed to the employee without exception.

Employers may judge this feature of the Board to be prioritizing the ability of workers to claim compensation over the rights of employers and, in some sense, this is true. The Board in many ways is structured to prioritize the needs of workers, a priority that comes at the expense of the needs of employers. In this ruling, an employer had no ability to pay the amount ordered by the Board. Paradoxically, this inability to pay the order prevented it from gaining the opportunity to challenge its legitimacy. In many courts or tribunals, denying a party access to justice due to an inability to pay would be counterintuitive. However, the Board’s worker-focused structure leads to just such a result for employers.

Furthermore, employers are required to pay any amount owing within a strict deadline of 30 days. In this ruling, the Board responded to the employer’s plea for an exemption or a payment plan by granting it a 10-day extension to pay. This extension was itself a use of discretion that the Board could have easily refused. The Board made clear that, although it did have discretion to extend the deadline, even obtaining this meagre accommodation required the employer to pay the amount owing prior. In other words, before the Board would make a ruling on whether it would extend the deadline, it required the employer to submit the amount owing by the extended deadline and provide “full reasons” as to why it did not meet the original deadline. If the employer were to pay the amount owing and fail to satisfy the Board as to its reasons for its tardiness, the Board would keep the amount owed and reject the application to review.

The overall takeaway for employers from this ruling is that the Board and other labour relations boards throughout the country operate differently from other legal venues. While employers may be used to operating in courts or tribunals where their interests are given equal importance to those of the employee, labour tribunals explicitly favour the interests of employees by design. Labour tribunals, as a result, impose strict rules upon employers, even when employers seek to overturn an order that wrongfully requires them to pay employees that are truly owed on compensation. While the Board may ultimately agree with the employer and overturned the order, it will only do so once the employer pays the amount allegedly owed in trust.

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