Simon's Megalomaniacal Legal Resources

Employment Law (Ontario) Legal Guide
(01 January 2016)

Chapter 8 - OLRB Procedures Applicable to ESA Matters

1. Overview
   (a) General
   (b) OLRB Procedural Rules
   . General
   . OLRB "Rules of Procedure" Displace the SPPA
   . Where OLRB Rules Do Not Address a Situation
   . Conflict WITHIN OLRB Rules of Practice
   . Summary
   
2. Review Application Procedure
   (a) General
   (b) Contents of Review Application
   (c) Employer-Initiated Review Applications
   (d) Employee-Initiated Review Applications
   (e) Timelines
   (f) Service and Filing of Review Applications
   . Service
   . Filing
   
3. Responses
   (a) General
   (b) Contents of Director Response
   (c) Contents of Party Response
   (d) Timelines
   . Director Response
   . Party Response
   (e) Filing and Serving
   
4. Pleadings and Non-Compliance
   
5. Service and Filing of Other Documentary Materials
   (a) General
   (b) Procedures
   
6. Service and Filing of Evidence (Disclosure)
   (a) General
   (b) Duty to Disclose Documentary Evidence
   (c) Where Improper Conduct Alleged
   (d) Board General Disclosure Authority
   
7. Service and Filing Methods and Related Rules
   (a) Overview
   (b) Service Methods Allowed
   (c) Filing Methods Allowed
   (d) "Substituted" Service
   (e) When Service and Filing are Legally Effective
   . Overview
   . When Service Effective
   . When Filing Effective
   . Counting Time
   (f) Posting of Notices
   
8. Pre-Hearing Procedures
   (a) Overview
   (b) Order Payout Delayed When Appeal
   (c) Settlements
   . Party-Party Settlements
   . OLRB Mediated Settlements
   (d) OLRB Investigative Authority
   (e) Interim Orders
   . OLRB Jurisdiction Regarding Interim Orders in ESA Matters
   . Interim Order Procedures
   (f) Constitutional Issues
   
9. Summary Procedures
   (a) General
   (b) Summary Resolution of Jurisdictional Issues
   
10. Hearing Procedures
    (a) General
    (b) Parties
    (c) Joinder and Representative Parties
    (d) Evidence
    . General
    . ESA-Related Documentation
    . Copies of Documentation Obtained From Investigations
    . OLRB Officials Not Compellable as Witnesses
    . General OLRB Disclosure Authority
    (e) Notice of Hearing
    (f) Adjournments
    (g) Consequences of Non-Attendence at Hearing
    (h) Types of Hearings
    . General
    . Written Hearings
    . Electronic (Telephone)
    (i) Orders
    (j) OLRB Delay in Issuance of Order
    
11. Post-Hearing Payment of Funds Held in Trust
    (a) General
    (b) Proportional Distribution to Employees
    (c) Accrued Interest Paid Out
    
12. Benefit Plan Issue Referrals
    (a) General
    (b) Procedures
    . General
    . Applicable ESA Provisions
    . Board Rule #17
    . Summary
    (c) Orders
    
13. Notice of Contravention Reviews
    (a) General
    (b) Limitation Period
    (c) Procedures
    . General
    . Parties
    . Evidentiary Onus and Burden
    . Settlements
    . Review Decisions
    . Applicable ESA Provisions
    
14. Reconsideration
    (a) Overview
    (b) Discussion
    
15. Court Review of OLRB ESA Reviews

________________________________________

Note re special and exempt employment sectors:
The Employment Standards Act (ESA) is riddled with many full and partial exemptions to it's provisions, as well as numerous 'special rules' for various industries or types of work. While I may note these variations throughout this Employment Law (Ontario) Guide when explaining individual topics generally, readers facing a specific fact situation should carefully review Ch.1 "Primary, ESA-Special and ESA-Exempt Employment Sectors" to determine if their specific employment situation is governed by any of these exemptions or special rules.

Note re terminology:
This chapter is primarily about the Ontario Labour Relations Board (OLRB) "Rules of Practice" ["Rules"], and in significant part about rules governing the exchange ['service' and 'filing'] of documents between the parties and the OLRB. Dominant legal usage of the term "service" refers to a party (or a court/tribunal) formally giving a document to another party, while "file" refers to a party formally giving a document to a court or tribunal. This is the usage found in the Employment Standards Act and Ontario's civil courts. The courts, in addition, use the term "deliver" to refer to service and filing together, as is commonly required with documents. In court usage a document is "delivered" when a copy (or copies) is "served" on the other party (or parties) and when another copy is "filed" with the court (usually with proof of service as well). However, contrary to this standard usage, the OLRB Rules use the term "deliver" instead of "service" (ie. it does not also include "filing"). So if you are checking the original OLRB Rule cites located throughout this chapter, keep that in mind. In the text of this chapter - and throughout this Employment Law (Ontario) Guide, I continue with the standard usage of "service", and will avoid the use of the term "deliver" as much as I can.

1. Overview

(a) General

This chapter explains the procedures that apply to Reviews (which essentially are 'appeals') of the following ESA Orders [s.116(1)]:

• wage compensation Orders [see Ch.7, s.4(c)]
  
  
• reprisal remedies [see Ch.9, s.2: "Offences and Contraventions: Reprisal and Related Remedies"]
  
  
• wage compensation Orders against directors of employer corporation [see Ch.7, s.4(e)]
  
  
• compliance Orders (injunctions)[see Ch.7, s.4(d)].
  
  
• Orders under Part XVIII.1 of the ESA (temporary help agencies).

These Reviews are conducted before the Ontario Labour Relations Board (OLRB), which conducts quasi-judicial hearings.

Reviews of "Notices of Contravention" [Ch.9, s.3] proceedings, while generally subject to the Review procedures discussed throughout this chapter, are also subject to their own distinct procedures [see s.13: "Notice of Contravention Reviews", below].

This chapter also discusses OLRB procedures for dealing with referrals of benefit plan issues made to it from the ES Director [see s.12, "Benefit Plan Issue Referrals", below].

(b) OLRB Procedural Rules

. General

The determination of what procedural rules govern any particular administrative tribunal proceedings in Ontario is rarely an easy task. Often a complex and unclear interplay between one or more "parent" statutes, the generic Statutory Powers Procedures Act (SPPA), and procedural rules promulgated by the tribunal - not all of them consistent with each other - renders the task difficult.

I generally explore some of these intricacies in the Isthatlegal.ca Administrative Law (Ontario)(SPPA): Ch.1: Tribunals and Their Rules. That Guide is devoted to a fuller analysis and explanation of the important Statutory Powers Procedures Act SPPA), which sets out 'default' procedural rules for most administrative tribunal proceedings in Ontario.

. OLRB "Rules of Procedure" Displace the SPPA

Luckily, this rule situation for OLRB s.116 "Reviews" is largely simplified by
virtue of an exempting provision contained in the SPPA:

s.3(2)(h)
... [the SPPA] ... does not apply to a proceeding ...

(h) of a Tribunal empowered to make Regulations, rules or by-laws insofar as its power to make Regulations, rules or by-laws is concerned.

The OLRB has such authority, which it is used in making its own extensive "Rules of Procedure" ["Rules"] (which are discussed throughout this chapter):

ESA s.118(1)
The chair of the Board may make rules,

(a) governing the Board's practice and procedure and the exercise of its powers; and

(b) providing for forms and their use.

And if that's not clear, the ESA adds (and the SPPA anticipates):

ESA 118(4)
If there is a conflict between the rules made under this section and the Statutory Powers Procedure Act, the rules under this section prevail.

SPPA s.32
Unless it is expressly provided in any other Act that its provisions and regulations, rules or by-laws made under it apply despite anything in this Act, the provisions of this Act prevail over the provisions of such other Act and over regulations, rules or by-laws made under such other Act which conflict therewith [SPPA s.32].

Thus ESA s.118(4) does invoke the SPPA s.32 exception and the net effect is to give the OLRB broad procedural rule-making dominance within its ESA Review jurisdiction. The OLRB Rules of Procedure embrace this authority extensively, and the forms authority has been exercised by Rule 40.1.

. Where OLRB Rules Do Not Address a Situation

Further, where the Rules do not fully anticipate all situations that arise before it (either in its administrative or presiding capacity), the OLRB is given ample authority to 'make it up as it goes along':

Rule 1.2
Where matters are not covered by these Rules, the practice will be decided in a similar way, or in a way the Board or Registrar considers advisable.

Rule 40.7
The Board may relieve against the strict application of these Rules where it considers it advisable.

ESA s.116(9)
The Board shall determine its own practice and procedure with respect to a review under this section.

. Conflict WITHIN OLRB Rules of Practice

The above picture impels one to the happy view that the OLRB's Rules of Practice are a safe, single-point reference for ESA Review procedures. Unfortunately however, as is discussed at various points in the balance of the chapter, they themselves are not a model of drafting perfection (what is?) and leave casual readers understandably confused on some key issues. This problem is generated by ambiguities between the OLRB's primary procedural rules - intended mostly for labour relations (ie. union) procedures - and the specific ESA Review rules set out in R21.

. Summary

In summary then, the primary source of procedural law for OLRB ESA Reviews is plainly the OLRB Rules of Procedure. It is to these then, as well as a few instances where the ESA itself (ie. through a direct legislative provision) addresses procedural issues, that this chapter is devoted.

The SPPA - in either its 'general rules' manifestation, or in its delegation of certain 'rule-making authorities' to tribunals - has no formal role in informing such procedural practice, though it may be had regard to by a presiding OLRB panel as a useful model in the event that the Rules are silent on an issue.


2. Review Application Procedure

(a) General

Persons who are the subject of any of the above-listed [see s.1(a) above] ESA Orders may apply for a Review of the Order/s (and refusals) by filing, in writing, an Application for Review [ESA s.116(1)].

Unlike conventional appeals, ESA Reviews are conducted essentially as "hearings de novo". This means that rather than the 'error-search'-type of examination that a court might take in a civil appeal of a lower court trial, the ESA "Review" procedure is essentially the first actual "hearing" procedure that will be held.

The Board-prescribed form for Review Applications is linked here:

ESA Application for Review
A Board "Procedural Guide", posted on the OLRB's website, is also linked here for convenience. It should be reviewed by any involved in such an application:

OLRB Procedural Guide (see p.47 for ESA Review Applications)
(b) Contents of Review Application

Review applications require that the applicant explain the issue in quite extensive detail, as follows [Rule 7.1]:

• the full name, address, telephone number, fax number and email address, if any, of:
  
  - the applicant, or a contact person for the applicant,
  
  - the responding party, and
  
  - any other person who may be affected by the application.
  
  
• the sections of the Act or any other act that relate to the application, including the sections that are claimed to have been violated, if any;
  
  
• a detailed description of the orders or remedies requested;
  
  
• a detailed statement of all the material facts on which the applicant relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

Note the important potential consequences of failure to comply with pleading (ie. Reviews and Responses) rules closely [see s.4: "Pleadings and Non-Compliance"].

(c) Employer-Initiated Review Applications

Reviews of "wage compensation Orders' [under s.103; Ch.7, s.4(c)] or temporary help agency fee reimbursement Orders [under s.74.14] may only be filed by parties if they pay "the amount owing under the order to the Director in trust or provide the Director with an irrevocable letter of credit acceptable to the Director in that amount" [ESA s.116(1,2)].

Similarly, Reviews of any "reprisal remedies" orders [under s.104; see Ch.9, s.2: "Offences and Contraventions: Reprisal and Related Remedies"], and temporary help agency compensation [s.74.16] or reprisal remedies [s.74.17] [see Ch.1, s.13] may only be filed by parties if they pay either the amount owing under the order, or $10,000 - whichever is lesser - "to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director in that amount" [ESA s.116(1,2)].

Of course, the effect of any such payment is to stay any further collection efforts until the matter is settled or otherwise resolved [see Ch.7, s.4(c): "Finality"].

(d) Employee-Initiated Review Applications

Employees may request a Review of either an Order (eg. if they think the amount of an Order in their favour is inadequate), or of a 'refusal' (of an ESO to issue an Order) [ESA s.116(2,3)].

Of course, in the case of an employee Review of an Order, there is no duty on the employer to make payment of the disputed amount/s to the ES Director [as set out in (c) above].

(e) Timelines

The deadline by which a Review must be "commenced" (see note below) for (ie. filed with the OLRB) is 30 days from the date that the Order, refusal - or written letter advising of either - is served on the party seeking the Review [ESA s.116(4)].

For employees, the OLRB has the discretion to extend this time if "it considers it appropriate in the circumstances to do so" [ESA s.116(5)].

Extension of the filing deadline for applications for Review is also subject to the above standard, except that [and in addition to satisfying the payment terms set out in (c) above] the following must also be the case [ESA s.116(5)]:

• if the wage, fee reimbursement and/or compensation Order amounts have been paid to the Director, the Director has not yet paid these over to the party entitled;
  
  
• any "collector's fees or disbursements" added to the Order [see Ch.7, s.5(c)] have been paid to the Director.

Note re "Commencement"
Prior to 01 January 2008, an ESA Review application was 'commenced' simply by filing a completed application form with the OLRB. The OLRB itself would then serve it on the other parties. That practice was an exception to normal OLRB procedures, which require applicants to serve the application and supporting documents on the other parties before filing it (and thus before an application was 'commenced'). That special ESA rule was changed 01 January 2008 to bring ESA Review applications under the OLRB's 'normal rule' [R 6.1, 21.1]. So now, in order for an ESA Review application to be 'commenced', it (and supporting documentation) must first be served on the other parties, and then filed with the Board. [see (f): "Service and Filing of Review Applications", following].

The topic of Review deadlines is closely related to that of the 'finality of Orders', which is discussed in Ch.7, s.4(c): ["ESA Administrative Enforcement: Orders and Related Measures: Wage Compensation Orders: Finality"].

(f) Service and Filing Review Applications

. Service

The applicant in an ESA Review application must serve the application materials [see (b) above: "Contents of Review Application"] on the other parties to the proceeding. This is a recent change as prior to 01 January 2008 it was the OLRB itself which served the materials on the other parties, after having received them when the applicant 'filed' them.

Physical methods for "service" and "filing" are covered in s.7 ["Service and Filing Methods and Related Rules"], below.

. Filing

The applicant "files" a Review application with the OLRB by any of the methods set out in s.7 ["Service and Filing Methods and Related Rules"] below, and as follows:

Rule 21.1
Within five (5) days of delivering the application, the applicant must file one (1) signed original and one (1) copy of its completed application (and documents) with the Board.

Recall that failure to fully comply with any document-filing duties may result in harsh consequences for the non-complying party:

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

Rule 6.13
The Board will not process an application that fails to comply with Rules 6.10 or 6.11 or 6.12 and the matter will be terminated. [R6.12 repeats part of R21.1 as quoted above]

Note:
Whenever the Rules use the term "deliver", it means "service" of a document/s on other parties. See the "Important Terminology Note" at the beginning of the chapter.

3. Responses

(a) General

Unlike most other OLRB proceedings, the main respondent in an ESA Review case is normally the ESA Director [Rule 21.2]. While party respondents (eg. employees, employers, etc) are entitled to make responses, they do not have to:

Rule 21.1
No response is required to be filed by a responding party (other than by the Director of Employment Standards ...).

Obviously, as a consequence of this rule the default consequences on a party for failure to make a response [Rule 2.3: 'acceptance of all application allegations as fact, summary adjudication of case'] do not apply to ESA Review cases (this is not made clear in the OLRB Rules).

(b) Contents of Director Response

The ES Director's response to an ESA Review application must include [Rule 21.2]:

• the name and address of every affected employee, employer, and director;
  
  
• a copy of the Employment Standards Officer's Narrative Report;
  
  
• a copy of the Order to Pay (together with the Officer's worksheets), or the letter advising the employee of the Order, or the letter advising of the refusal to issue an Order [or of the Notice of Contravention, where applicable: see s.13: "Notice of Contravention Reviews"];
  
  
• verification that the above has been served on the parties, "together with precise information about how, when and where the documents were delivered" [served]. Where the document under Review is an Order, then a certificate of service is required.;
  
  
• proof of payment of money to the Director in trust or a statement that an irrevocable letter of credit acceptable to the Director has been provided, if applicable [see s.2(c): "Review Application Procedures: Employer-Initiated Review Applications", above];
  
  
• "precise information as to whether the Director has paid the wages or compensation to the employee and whether a collector's fee or disbursements have been added to the amount of the Order [see s.2(e) above], and if so, whether the fees and disbursements were paid by the persons to whom the Order was issued."
  
  The failure of the Director to properly comply with this requirement entitles the Board to reach the conclusion/s that (as the case may be) [Rule 21.3]:
  
  
• no monies for wages and compensation have been paid by the Director to the employee/s; and
  
  
• any additional amounts for collector's fee or disbursements have been paid by the employer to the Director.
  
  (The concern basically is that the Order below has been complied with by payment to the Director, but that the funds have not yet been disbursed to the employee).

Note the important potential consequences of failure to comply with pleading (ie. Reviews and Responses) rules closely [see s.4: "Pleadings and Non-Compliance", below].

(c) Contents of Party Response

Remember that Review responses by parties (ie. employees and employers) are not required as the Board has primary carriage of defending the Review application. However, if parties chose to make a Response nonetheless, they can - but they must include the following extensive detail [Rule 7.5]:

• the full name, address, telephone number, fax number and email address, if any, of:
  
  - the responding party, or a contact person for the responding party and
  
  - any other person who may be affected by the application.
  
  
• a statement of agreement or disagreement with each fact or allegation in the application;
  
  
• a statement of the responding party's position with respect to the orders or remedies requested by the other parties;
  
  
• where the responding party relies on a version of the facts different from the applicant's, a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly;
  
  
• a certificate verifying service of the response to the applicant and to any other party.

Note the important potential consequences of failure to comply with pleading (ie. Reviews and Responses) rules closely [see s.4: "Pleadings and Non-Compliance", below].

(d) Timelines

. Director Response

The Director must make their response to the application within 20 days of receiving notice of the application from the Board [Rule 21.2].

. Party Response

Party responses, if they are going to be made, must be done by the deadline specified by the Board (by letter) when it forwards the application materials to the respondent parties [Rule 3.3]. If no such time is specified, the deadline for making the response is 10 days after the application materials are received by the respondent parties [Rule 7.3].

Recall that failure to fully comply with any document-filing duties may result in harsh consequences for the non-complying party:

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

(e) Filing and Serving

Note:
Methods of "service" and "filing" are explained in s.7 ["Service and Filing Methods and Related Rules"], below.

Any response - by either the ES Director or (if any) by a party, must be both filed with the Board - and served on the applicant and any other parties by the respondent [Rule 21.4, 21.5].

Service must take place at the same time as the response is filed with the Board.

Two copies must be filed, one originally-signed and one copy [Rule 6.2], along with verification in writing that the service has been performed.

Recall that failure to fully comply with any document-filing duties may result in harsh consequences for the non-complying party:

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

4. Pleadings and Non-Compliance

The term "pleadings" refers in administrative and civil litigation to the main documents of a proceeding - those which (or at least should) define the key issues to be advanced and adjudicated upon. In the present ESA Review context these are the "application" and the "response".

Close regard to the Board-prescribed application and response procedures is advised, as the Board's Rules of Practice require (not just allow) the imposition of the extreme penalty of nullifying the 'attempted' filing in the event of even technical non-compliance:

Rule 2.1
An application or response may not be processed if it does not comply with these Rules.

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

These are unusually draconian consequences for even minor technical non-compliance - especially in light of the short application period available (30 days). In my opinion, such harsh consequences - amounting to the denial of natural justice and important statutory rights - would not survive a judicial review if grounded in a sympathetic fact situation.

Similar "default" consequences can arise if parties do not fully set out their claims and allegations in the pleadings in a timely fashion [Rule 2.4]:

Rule 2.4
No person will be allowed to present evidence or make any representations at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.

Additionally, any allegations involving "improper conduct" of a person must be brought to the Board's (and any participating parties' attention) as soon as possible [Rule 5.1]:

Rule 5.1
Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

That said, the Board may allow a party to amend pleadings on such terms as it sees fit:

Rule 40.5
The Board may allow a filing to be amended as the Board considers advisable.

5. Service and Filing of Other Documentary Materials

(a) General

Any additional documents or correspondence [ie. other than pleadings and their supporting documentation: see s.3 and 4 above; and documentary evidence: see s.6 below] that a party later files with the Board must also be served on the applicants and/or any participating respondents [Rule 8.1].

Note that unique service and filing rules apply to "interim Order" applications [see s.8(e): "Pre-Hearing Procedures: Interim Orders", below].

(b) Procedures

The filed copy must be accompanied by a statement:

• "that the party filing it has delivered the document or correspondence to all other parties as required by this Rule", and
  
  
• including "the names and titles of the persons to whom the documents were delivered and precise information regarding the date, time and method of delivery".
  
  Note:
  Whenever the Rules use the term "deliver", it means "service" of a document/s on other parties. See the "Important Terminology Note" at the beginning of the chapter.

Service on the other parties must be done at the same time as the filing.

Recall that failure to fully comply with any document-filing duties may result in harsh consequences for the non-complying party:

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

Note:
Methods of "service" and "filing" are explained in s.7 ["Service and Filing Methods and Related Rules"], below.

6. Service and Filing of Evidence (Disclosure)

(a) General

It is standard practice in most modern administrative tribunals to require parties to pre-file and serve copies of any documentary evidence they intend to rely on at the hearing. ESA Review applications before the OLRB are no exception to this principle, and include some additional duties extending beyond documentation alone.

Note that like any filings (ie. documentary submissions), the Board may at its discretion allow them to be amended [Rule 40.5].

(b) Duty to Disclose Documentary Evidence

At least 10 days before the case is set for hearing, any party intending to rely on documentary evidence must both file two copies of it with the Board, and serve (at the same time) copies on the other parties [Rule 8.3]. Such documents "must be arranged in consecutively numbered pages and must be accompanied by a table of contents describing each document" [Rule 8.4].

Note:
Methods of "service" and "filing" are explained in s.7 ["Service and Filing Methods and Related Rules"], below.

To some extent this duty is satisfied by the ES Director's duty to file and serve documentation from the original ESO determination [see 3(b): "Responses: Contents of Director's Response", above], however parties who choose to participate in Review hearings as respondents should ensure that any additional documentary evidence is properly served and filed in accordance with this section.

The Board also has authority to require additional service of documentary evidence on any person, whether a party or not [Rule 40.8].

Note that severe consequences may result for failure to fully comply with these disclosure duties:

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

(c) Where Improper Conduct Alleged

In addition to the above document disclosure rule:

Rule 5.1
Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.

This is an elaboration of a rule also found in civil litigation [Rules of Civil Procedure, R25.06(8)], and restated (though differently worded) at s.8 of the Statutory Powers Procedures Act.

(d) Board General Disclosure Authority

The Board has general authority to compel a party or a witness to provide "further information, document or thing that the Board considers may be relevant to a case and to do so before or during a hearing" [Rule 40.6].


7. Service and Filing Methods and Related Rules

(a) Overview

Whenever lawyers speak of "service" they are referring to the rules which govern the delivery of various documents to the parties to the proceeding. In contrast, the term "filing" refers to the methods by which documents may be delivered to the body which will be hearing and deciding the proceeding (in the present context, the Ontario Labour Relations Board).

Both service and filing serve the basic purpose of giving all involved parties(including the Board) adequate and formal notice of the information and evidence necessary to conduct the proceedings.

As a preliminary matter, note that the service methods set out in the Employment Standards Act [ESA s.95 and elsewhere], and used at the level of ESO enforcement[see Ch.7, s.4(c) and (d): "Administrative Enforcement: Orders and Related Measures"], are NOT the same as those used in OLRB Review procedures. Instead the Board has exercised its broad procedural rule-making authority to establish it's own separate service and filing rules.

Further note that - in addition to the specific service and filing rules set out below - the Board has a broad general power to direct the provision of notice as it thinks fit on a case-by-case basis:

Rule 40.2
The Board or Registrar may give directions as either considers necessary to provide notice to any person.

Finally, note that whenever the OLRB Rules [which I sometimes quote here] use the term "deliver", it means "service" of a document/s on other parties. See the "Important Terminology Note" at the beginning of the chapter.

(b) Service Methods Allowed

With some exceptions (noted below where relevant), documentation (both pleadings and evidentiary) involved in an ESA Review proceeding before the OLRB may be physically served by any of the following methods [Rule 6.4, 6.5]:

• hand delivery;
  
  
• courier;
  
  
• regular mail;
  
  Note however that any documents "covered by" the 'interim order' rules [see s.8(e): "Pre-Hearing Procedures: Interim Orders", below] may NOT be served by regular mail [Rule 6.4, 6.5]. This would logically include any documents integrally involved with a party's pursuit of an interim order.
  
  
• fax;
  
  
• "any other way agreed upon by the parties".

(c) Filing Methods Allowed

Documents may be filed with the OLRB by any of the following methods [Rule 6.8]:

• regular mail;
  
  
• hand delivery;
  
  
• courier.

The Rules expressly bar "filing" documents by way of [Rule 6.8]:

• email; and
  
  
• registered mail.

Filing by fax is only allowed where the document is both "short and urgent" or is being used in an "interim order" proceeding [Rule 6.4, 6.5, 6.9]. There will be few fact situations when this exception will apply, so parties relying on faxes for convenience will be taking a great risk. If the Board does not - after the fact - agree that the document is both 'short' and 'urgent', it could nullify the delivery under its harsh Rule 2.2 authority:

Rule 2.2
The Board may decide an application without further notice to anyone who has not filed a document in the way required by these Rules.

Filing of applications and responses requires one original, and one copy. If fax filing is allowable [see above], the fax copy alone is adequate [Rule 6.2,6].

(d) "Substituted" Service

In civil litigation, the term "substituted" service refers to a situation where a court gives permission for a variation from normal service rules due to special circumstances (eg. party address unknown, party avoiding service, etc).

A similar provision [Rule 6.6] allows the Board, either at the request of a party or on its own, to make an order authorizing a different manner of service of documentation ("substituted delivery or for such other order as may be appropriate") if it "considers that it is impractical for any reason to deliver an application within the time period set out in these rules"

Note that such an order could approve past delivery methods or efforts (known as "validating" service), or even dispense with future delivery efforts entirely. Any such order should specify the date at which the 'substituted' service was (or will be) legally effective, either by express date (if validating past service) or by formula (if establishing a new method to be tried).

(e) When Service and Filing are Legally Effective

. Overview

As service and filing of documents is so integrally tied up with limitation periods and procedural deadlines, it is essential to be able to determine with clarity when service or filing has - in law - been made.

. When Service Effective

The OLRB has established the following principles regarding the legally effective date of service [Rule 6.7]:

• "the date a document is delivered [served] is the date that document is received by another party or its authorized representative", except that
  
  - "a document delivered after 5:00 p.m. will be deemed to be delivered on the next day", and
  
  - and "a document delivered by regular mail will be deemed to be delivered on the fifth day after the document was mailed".
  
  Note:
  Whenever the Rules use the term "deliver", it means "service" of a document/s on other parties. See the "Important Terminology Note" at the beginning of the
  chapter.

. When Filing Effective

The OLRB Rules specify that "the date of filing is the date a document is received by the Board at its office" [Rule 3.4]. Consequently the Board will likely place complete reliance on its own internal 'date received' stamp.

Further, unless expressly excepted by the Registrar, any filing received after 5pm will be deemed to be received the following day that the Board is open (ie. the next non-holiday business day) [Rule 3.5].

As the date of filing is so key to the commencement of a Review application, parties close to the deadline (in fact, in any case) would be prudent to use a method of filing that allows the creation of a 'paper trial', such as receipted courier or personal delivery (where an affidavit may later be sworn). Mail may more safely be relied upon where timelines are not so important (although frankly I wouldn't use it myself).

. Counting Time

The following rules apply to the "counting" of time under the OLRB Rules [Rules 1.5, 3.1-3.2]:

• "the Board or the Registrar may shorten or lengthen any time period set out in or under these Rules, as either considers advisable".
  
  
• "day" means any day of the week from Monday to Friday, excluding a statutory holiday and any other day the Board is closed;
  
  
• any reference to a "period of time does not include Saturdays, Sundays, statutory holidays and any other day the Board is closed";
  
  Comment:
  
  This last Rule is just plain ODD. It clearly states that a timeline, such as the main 30 day timeline for filing Review applications, only counts 'OLRB-open' days. That would make it the only extended limitation provision I have ever seen in Ontario law doing that (years ago there was a very short landlord and tenant period that did that). Everywhere else '30 days' means 30 calendar days [Legislation Act, s.89].
  
  Further, the main 30-day Review deadline is not established under the OLRB Rules, but under ESA s.116(4) - a statute. As such it will be subject to the normal calculation of time used in statutes, which is as I've described it.
  
  Unless forced to by circumstances, I would NOT rely on the literal interpretation of the above (last noted) time provision, but would assume that 30 days means just that: 30 calendar days. If I'm wrong, there would actually be MORE time to perform whatever service or filing is required - but if I'm right and the timeline is missed, important rights might be lost forever.
  
  I invite someone familiar with the OLRB's practice to respond to this comment, perhaps I am missing something.

(f) Posting of Notices

As a supplement to the typical service methods, the Board may make rules requiring notification to parties (typically large numbers of employees at the workplace) by the posting of notices, even on premises of non-parties [ESA s.119(4)].

The Board, in so doing, may "also give any directions about the posting, including when the notices must be posted, where, how many and for how long" [Rule 40.3], and the persons so required must report back to the Board Registrar promptly of the date and time of the postings [Rule 40.4].

Persons so required "shall post the notices and keep them posted in a conspicuous place or places in or upon the person's premises where it is likely to come to the attention of other persons having an interest in the review" [ESA s.119(5)].

Continue Chapter here ...