Effective October 1, 2014, the NS government has amended the Regulations under the NS Occupational Health and Safety Act to add provisions dealing with administrative penalties (financial fines) and the appeal process for workplace health and safety violations. Although many of the new provisions aren’t beneficial to employers or those appealing decisions, the good news is that the Regulations increase the time limits available to employers (or others) to appeal a decision and now allow for an informal review process.

The key changes to the Regulations are:

Director Review Time and Process. The Director of Occupational Health and Safety now has a specified time period in which she may review or alter a health and safety officer’s decision or order and an administrative penalty. The Director may review a decision, order or penalty:

• that is not appealed, within 30 days of the decision, order or penalty being served on the recipient
• that is appealed, within 10 days from the date the Notice of Appeal is served.

The Regulations don’t specify the process to request the Director to review an officer’s orders or decisions; presumably, a party could initiate a review by filing a written request. The Regulations do allow the Director to decide on her own to review administrative penalties to correct defects and incorrect references to the Act, substitute a lesser penalty, and revoke the penalty. These changes give employers more time to make submissions and provide input on a decision, order or penalty, and potentially have it revoked without going through the formal appeal process.

Onus of Proof Clarified. The onus is now clearly on the party appealing an order, decision or administrative penalty to establish, on a balance of probabilities, that the order should not be confirmed by either the Director or the Labour Board. This change codifies the NS Labour Board’s recent decision in Guild Contracting Specialties (2005) Inc v. Director of Occupational Health and Safety, 2013 NSLB 69.

Revocation Based on Defects and Irregularities. The Regulations now say that the Labour Board can’t revoke decisions, orders and penalties based on a defect in form or a technical irregularity unless the person affected can show, on a balance of probabilities, that:

• he was prejudiced by the defect or irregularity, and
• such prejudice can’t be cured through an extension of time or any other procedural ruling the Labour Board could make.

This change makes it more difficult for employers (or others) who wish to appeal administrative penalties.

Service of Administrative Penalties. The Department of Occupational Health and Safety (through a health and safety officer) must now serve a notice of an administrative penalty “no later than 14 days after the date the written order is issued.” However, the Director has the discretion, where necessary, to extend the time period for imposing a penalty. The Department must now also serve the penalty notice on the person who is being penalized, though the Labour Board has previously confirmed that it is permissible to serve an employer by providing a copy of the penalty to a supervisor or manager of the employer.

Penalties Based on History. The Director must now determine the amount of the penalty purely with regard to the number of penalties already served on the penalized person within the prior three-year period. Depending on whether the person penalized is an employer, supervisor or employee, penalties can range from:

• $100 – $500 for the first penalty;
• $200 – $1,000 for a second penalty; and
• $500 – $2,000 for a third penalty.

No Discretion on Penalties. It also appears that the Director no longer has the discretion to increase or decrease penalties based on various factors such as efforts to prevent the infraction from occurring, or whether the infraction leads to an economic benefit for the person in question.

More Time To Appeal Administrative Penalty. A party served with an administrative penalty now has 30 days, instead of 21 days, to file an appeal of the penalty.

Read the amended Workplace Health and Safety Regulations made under Section 82 of the Occupational Health and Safety Act, S.N.S. 1996, c. 7 here.

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Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Occupational Health and Safety Team to discuss this topic or any other legal issue.

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