Appeals of Decisions and Directions

Appointment

145.1 (1) The Minister may designate as an appeals officer for the purposes of this Part any person who is qualified to perform the duties of such an officer.

Status

(2) For the purposes of sections 146 to 146.5, an appeals officer has all of the powers, duties and immunity of a health and safety officer.

Appeal of direction

146. (1) An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing .

Direction not stayed

(2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.

Inquiry

146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may

    (a) vary, rescind or confirm the decision or direction; and

    (b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).

Decision and reasons

(2) The appeals officer shall provide a written decision, with reasons, and a copy of any direction to the employer, employee or trade union concerned, and the employer shall, without delay, give a copy of it to the work place committee or health and safety representative.

Posting of notice

(3) If the appeals officer issues a direction under paragraph (1)(b), the employer shall, without delay, affix or cause to be affixed to or near the machine, thing or place in respect of which the direction is issued a notice of the direction, in the form and containing the information that the appeals officer may specify, and no person may remove the notice unless authorized to do so by the appeals officer.

Cessation of use

(4) If the appeals officer directs, under paragraph (1)(b), that a machine, thing or place not be used or an activity not be performed until the direction is complied with, no person may use the machine, thing or place or perform the activity until the direction is complied with, but nothing in this subsection prevents the doing of anything necessary for the proper compliance with the direction.

Powers

146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer may

    (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence under oath and to produce any documents and things that the officer considers necessary to decide the matter;

    (b) administer oaths and solemn affirmations;

    (c) receive and accept any evidence and information on oath, affidavit or otherwise that the officer sees fit, whether or not admissible in a court of law;

    (d) examine records and make inquiries as the officer considers necessary;

    (e) adjourn or postpone the proceeding from time to time;

    (f) abridge or extend the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence;

    (g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer's opinion has substantially the same interest as one of the parties and could be affected by the decision;

    (h) determine the procedure to be followed, but the officer shall give an opportunity to the parties to present evidence and make submissions to the officer, and shall consider the information relating to the matter;

    (i) decide any matter without holding an oral hearing; and

    (j) order the use of a means of telecommunication that permits the parties and the officer to communicate with each other simultaneously.

Decision final

146.3 An appeals officer's decision is final and shall not be questioned or reviewed in any court.

No review by certiorari, etc.

146.4 No order may 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 an appeals officer in any proceeding under this Part.

Wages

146.5 An employee who is a party to a proceeding under subsection 146.1(1) and who attends at the proceeding, or any employee who has been summoned by an appeals officer to attend at such a proceeding 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.

Disciplinary Action

General prohibition re employer

147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee's rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

    (a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;

    (b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer ; or

    (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

Abuse of rights

147.1 (1) If an employee exercises rights under section 128 or 129 while knowing that no circumstances exist that would warrant it, the employer may, after all of the investigations and appeals have been exhausted by the employee under those sections, take disciplinary action against the employee.

Written reasons

(2) The employer must provide the employee with written reasons for any disciplinary action within fifteen working days after receiving a request from the employee to do so.

Offences and Punishment

General offence

148. (1) Subject to this section, every person who contravenes a provision of this Part is guilty of an offence and liable

    (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

    (b) on summary conviction, to a fine of not more than $100,000 .

If death or injury

(2) Every person who contravenes a provision of this Part the direct result of which is the death of, serious illness of or serious injury to an employee is guilty of an offence and liable

    (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

    (b) on summary conviction, to a fine of not more than $1,000,000 .

Risk of death or injury

(3) Every person who wilfully contravenes a provision of this Part knowing that the contravention is likely to cause the death of, serious illness of or serious injury to an employee is guilty of an offence and liable

    (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both ; or

    (b) on summary conviction, to a fine of not more than $1,000,000 .

Defence

(4) On a prosecution of a person for a contravention of any provision of this Part, except paragraphs 125(1)(c), (z.10) and (z.11) , it is a defence for the person to prove that the person exercised due care and diligence to avoid the contravention. However, no person is liable to imprisonment on conviction for an offence under any of paragraphs 125(1)(c), (z.10) and (z.11) .

Presumption

(5) For the purposes of this section, if regulations are made under subsection 157(1.1) in relation to health or safety matters referred to in a paragraph of any of sections 125 to 126 by which a standard or other thing is to be prescribed, that standard or other thing is deemed to be prescribed within the meaning of that paragraph.

Exception

(6) This section does not apply to a person who contravenes paragraph 126(1)(k).

R.S., c. 9 (1st Supp.), s. 4

15. Subsections 149(1) and (2) of the Act are replaced by the following:

Minister's consent required

149. (1) No proceeding in respect of an offence under this Part may be instituted except with the consent of the Minister or a person designated by the Minister .

Officers and senior officials, etc.

(2) If a corporation or a department or other portion of the public service of Canada to which this Part applies commits an offence under this Part, any of the following persons who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the corporation, department or portion of the public service has been prosecuted or convicted:

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

    (b) any senior official in the department or portion of the public service; or

    (c) any other person exercising managerial or supervisory functions in that corporation, department or portion of the public service.

R.S., c. 9 (1st Supp.), s. 4

16. Section 153 of the English version of the Act is replaced by the following:

Injunction

153. The judge of a court to whom an application under section 152 is made may, in the judge's discretion, make the order applied for under that section and the order may be entered and enforced in the same manner as any other order or judgment of that court.

R.S., c. 24 (3rd Supp.), s. 8

17. Subsection 154(1) of the Act is replaced by the following:

Imprison-
ment precluded in certain cases

154. (1) If a person is convicted of an offence under this Part on proceedings by way of summary conviction, no imprisonment may be imposed in default of payment of any fine imposed as punishment.

1998, c. 26, s. 57

18. The portion of subsection 156(1) of the Act before paragraph (a) is replaced by the following:

Complaint to Board

156. (1) Despite subsection 14(1), the Chairperson or a Vice-Chairperson of the Board, or a member of the Board appointed under paragraph 9(2)(e), may dispose of any complaint made to the Board under this Part and, in relation to any complaint so made, that person

19. The Act is amended by adding the following after section 156:

Fees

Fees for services, etc.

156.1 (1) The Governor in Council may, on the recommendation of the Treasury Board, fix the fees to be paid for services, facilities and products provided by the Minister under this Part or within the purpose of this Part.

Amount not to exceed cost

(2) Fees fixed under subsection (1) may not exceed the costs to Her Majesty in right of Canada in respect of those items or matters.

20. (1) Subsection 157(1) of the Act is amended by striking out the word ``and'' at the end of paragraph (a) and by adding the following after that paragraph:

    (a.1) restricting or prohibiting any activity or thing that any provision of this Part contemplates being the subject of regulations; and

R.S., c. 26 (4th Supp.), s. 5(1)

(2) Subsection 157(1.1) of the French version of the Act is replaced by the following:

Pouvoirs du gouverneur en conseil

(1.1) Le gouverneur en conseil peut, par règlement, pour réglementer ce qui doit l'être aux termes de l'un des alinéas des articles 125 à 126, régir de la manière qu'il estime justifiée dans les circonstances les questions de santé et de sécurité visées à cet alinéa, que ses motifs soient ou non signalés lors de la prise des règlements.

1996, c. 12, s. 3

21. Section 158 of the Act and the heading before it are replaced by the following:

Provincial Crown corporations

158. The Governor in Council may by regulation direct that this Part applies in respect of any employment, or any class or classes of employment, on or in connection with a federal work, undertaking or business set out in the regulation that is, or is part of, a corporation that is an agent of Her Majesty in right of a province, including a corporation whose activities are regulated, in whole or in part, under the Atomic Energy Control Act.

Transitional Provision

Proceedings

22. Proceedings commenced under section 130, 133 or 146 of the Canada Labour Code and not finally disposed of before the coming into force of this section shall be dealt with and disposed of in accordance with that Act as if this Act had not come into force.

PART 2