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Canada Labour Code (R.S.C., 1985, c. L-2)

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Act current to 2022-05-02 and last amended on 2021-12-29. Previous Versions

PART IVAdministrative Monetary Penalties (continued)

Head’s Powers

Marginal note:Powers regarding notices of violation

 The Head may

  • (a) establish the form of notices of violation;

  • (b) designate persons, or classes of persons, who are authorized to issue notices of violation; and

  • (c) establish a short-form description for each violation to be used in notices of violation.

Marginal note:Delegation

 Subject to any terms and conditions specified by the Minister, the Head may delegate to any qualified person or class of persons any of the powers the Head is authorized to exercise or any of the duties or functions the Head is authorized to perform for the purposes of this Part. The Head may make the delegation subject to any terms and conditions that the Head considers appropriate.

Commission of Violations

Marginal note:Violations

 Every person or department that contravenes or fails to comply with a provision, direction, order or condition designated by regulations made under paragraph 270(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

Marginal note:Liability of parties to violation

 If a corporation or a department commits a violation, any of the following persons who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation or department has been proceeded against in accordance with this Part:

  • (a) any officer, director, agent or mandatary of the corporation;

  • (b) any senior official in the department; or

  • (c) any other person exercising managerial or supervisory functions in the corporation or department.

Marginal note:Proof of violation — employees

 In any proceedings under this Part against a person or a department in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person or of the department, whether or not the employee or agent or mandatary has been identified or proceeded against in accordance with this Part.

Marginal note:Notice of violation

  •  (1) If a person designated under paragraph 271(b) has reasonable grounds to believe that a person or a department has committed a violation, the designated person may issue a notice of violation and shall cause it to be served on the person or on the department in accordance with the regulations.

  • Marginal note:Contents

    (2) The notice of violation shall

    • (a) name the person or department that is believed to have committed the violation;

    • (b) set out the relevant facts surrounding the violation;

    • (c) set out the penalty for the violation;

    • (d) inform the person or department of their right to contest the facts of the alleged violation or the penalty, by way of review and appeal, and of the procedure to be followed to exercise that right;

    • (e) inform the person or department of the manner of paying the penalty set out in the notice; and

    • (f) inform the person or department that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable for the penalty set out in the notice.

  • Marginal note:Copy given by employer

    (3) If the notice of violation is issued to an employer who has committed a violation by contravening a provision of Part II or a direction issued under that Part, the employer shall, without delay, give a copy of the notice to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).

Rules About Violations

Marginal note:Certain defences not available

  •  (1) A person or department named in a notice of violation does not have a defence by reason that the person or the department

    • (a) exercised due diligence to prevent the violation; or

    • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person or the department.

  • Marginal note:Common law principles

    (2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under Part II or III applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

Marginal note:Violation or offence

  •  (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under Part II or III, and proceeding with it as an offence under Part II or III precludes proceeding with it as a violation under this Part.

  • Marginal note:For greater certainty

    (2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Limitation period

 No notice of violation in respect of a violation may be issued more than two years after the day on which the subject-matter of the violation arises.

Reviews

Marginal note:Request for review

 A person or a department that is served with a notice of violation may, within 30 days after the day on which the notice is served, or within any longer period that the Head allows, make a request, in the manner prescribed by regulation, to the Head for a review of the penalty or the facts of the alleged violation, or both.

Marginal note:Variation or cancellation of notice of violation

 At any time before a request for review in respect of a notice of violation comes before the Head, a person designated under paragraph 271(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

  •  (1) On receipt of a request for review made under section 281, the Head shall conduct the review of the notice of violation.

  • Marginal note:Rules of procedure

    (2) The Head may make rules governing the procedure with respect to reviews under this Part.

  • Marginal note:Request treated as an appeal

    (3) The Head may, if the Head considers it appropriate in the circumstances, treat the request for review as an appeal, in which case the Head shall so inform the applicant and refer the request for review to the Board, and the Board shall be considered to have an appeal before it for the purposes of this Part.

Marginal note:Object of review

  •  (1) The Head shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the applicant committed the violation, or both.

  • Marginal note:Correction of penalty

    (2) If the Head determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Head shall correct the amount of the penalty.

  • Marginal note:Decision

    (3) The Head shall make a decision in writing and serve the applicant with a copy of the decision, with reasons.

  • Marginal note:Copy given by employer

    (4) If a decision is made with respect to a notice of violation referred to in subsection 276(3), the employer shall, without delay, give a copy of the decision to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).

  • Marginal note:Obligation to pay

    (5) If the Head determines that the applicant committed the violation, the applicant is liable for the penalty that is set out in the decision.

  • Marginal note:Decision final

    (6) Subject to the right of appeal under section 285, every decision made under this section is final and shall not be questioned or reviewed in any court.

Appeal

Marginal note:Appeal

  •  (1) A person or a department may appeal a decision referred to in section 284 to the Board, in writing, within 15 days after the day on which the decision is served.

  • Marginal note:Grounds of appeal

    (2) The request for appeal shall contain a statement of the grounds of appeal.

Marginal note:Head informed of appeal

  •  (1) The Board shall inform the Head in writing when an appeal is brought under subsection 285(1) and provide the Head with a copy of the request for appeal.

  • Marginal note:Documents provided to Board

    (2) The Head shall, on request of the Board, provide to the Board a copy of any document that the Head relied on for the purpose of making the decision being appealed.

  • Marginal note:Documents provided to Head

    (3) The Board shall, on request of the Head, provide to the Head a copy of any document that is filed with the Board in the appeal.

  • Marginal note:Power of Head

    (4) The Head may, in an appeal, present evidence and make representations to the Board.

Marginal note:Object of appeal

  •  (1) In an appeal under this Part, the Board shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the appellant committed the violation, or both.

  • Marginal note:Correction of penalty

    (2) If the Board determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board shall correct the amount of the penalty.

  • Marginal note:Decision

    (3) The Board shall make a decision in writing and provide the appellant and the Head with a copy of the decision, with reasons.

  • Marginal note:Copy given by employer

    (4) If a decision is made with respect to a notice of violation referred to in subsection 276(3), the employer shall, without delay, give a copy of the decision to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).

  • Marginal note:Obligation to pay

    (5) If the Board determines that the appellant committed the violation, the appellant is liable for the penalty that is set out in the decision.

  • Marginal note:Decision final

    (6) Every decision made under this section is final and shall not be questioned or reviewed in any court.

  • Marginal note:No review by certiorari, etc.

    (7) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under this section.

Marginal note:Wages

 An employee who has been summoned by the Board to attend at an appeal proceeding under this Part and who attends is entitled to be paid by the employer at the employee’s regular rate of wages for the time spent at the proceeding that would otherwise have been time at work.

 
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