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.
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
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
$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.
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