Bill C-5
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Reprisals and Complaints
Definition of “reprisal action”
205.059 (1) In this section and in sections 205.06 and 205.062, “reprisal action” means an action that
(a) adversely affects an employee with respect to their terms or conditions of employment or any opportunity for employment or promotion, including dismissal, lay-off, suspension, demotion, transfer of job or location, discontinuation or elimination of the job, change in hours of work, reduction in wages or benefits, coercion, intimidation or the imposition of any disciplinary sanction, reprimand or other penalty; and
(b) is taken, in whole or in part, because the employee has acted in accordance with the provisions of this Part or of the regulations made under this Part or with a decision or order made under any of those provisions or has taken steps to ensure that those provisions are complied with.
Prohibition
(2) No operator, employer, provider of serv- ices or union shall take, or threaten to take, reprisal action against an employee.
No action against employee
(3) Without limiting the generality of subsection (2), actions referred to in paragraph (1)(a) cannot be taken against an employee for
(a) seeking to establish a committee, participating in the establishment or work of a committee or acting as a member of a committee or as a coordinator;
(b) acting as an observer under section 205.048;
(c) making a report under section 205.049;
(d) refusing to perform an activity under section 205.05, refusing to be transported under section 205.054 or ceasing to perform a job under section 205.056;
(e) requesting the employer under section 205.057 to modify the functions connected with the employee’s regular work or to reassign the employee;
(f) seeking access to information to which the employee is entitled under this Part;
(g) testifying in any proceeding or inquiry under this Part; or
(h) giving information in accordance with the provisions of this Part or of the regulations made under this Part or with a decision or order made under any of those provisions to a committee, a coordinator, a health and safety officer or any other person having duties or functions under this Part, or under Part III as it relates to safety.
Disciplinary action
(4) Despite paragraph (3)(d), any action referred to in paragraph (1)(a) may be taken against an employee who has exercised rights under section 205.05 or 205.054 after all avenues of redress have been exhausted by the employee, if the operator, employer, provider of services or union taking the action can demonstrate that the employee has wilfully abused those rights.
Reasons
(5) The operator, employer, provider of services or union shall provide the employee with written reasons for any action taken under subsection (4) within 15 days after the day on which a request is received from the employee to do so.
Application by employee for decision
205.06 (1) An employee may, either personally or through a representative, apply to the provincial labour relations board for a decision as to whether
(a) an employer or provider of services has failed to pay wages or grant benefits to the employee that are required under subsection 205.019(2), 205.044(4), 205.045(7), 205.048(6), 205.051(2), 205.052(2) or (3), 205.053(1) or (2), 205.055(2) or (3), 205.056(6) or 205.058(2) or (5); or
(b) a person or organization has taken or threatened to take reprisal action against the employee contrary to subsection 205.059(2).
Time limit
(2) The application shall be made within 90 days after the day on which the grounds for the application became known or ought to have become known to the employee.
Burden of proof
(3) In a proceeding before the provincial labour relations board in respect of an allegation that reprisal action referred to in paragraph (1)(b) has been taken or threatened, the burden of proving that no such reprisal action has been taken or threatened is on the person or organization against whom the allegation is made.
Conduct of proceeding
(4) The rules of practice and procedure that apply to applications for the determination of a matter made under the Labour Relations Act, R.S.N.L. 1990, c. L-1, as amended from time to time (in this section and in sections 205.063, 205.1 and 205.103 referred to as the “Provincial Labour Relations Act”) apply to applications made under subsection (1).
Costs
(5) The costs incurred by the provincial labour relations board in respect of an application made under subsection (1), including the remuneration of its members, shall be paid by the Board as defined in section 2.
Powers, privileges and immunities
(6) The provincial labour relations board and each of its members has the powers, privileges and immunities granted by the Provincial Labour Relations Act.
Non-application of Federal Courts Act
(7) For the purposes of the Federal Courts Act, the provincial labour relations board, when exercising jurisdiction or powers under this section, is not a federal board, commission or other tribunal as defined in subsection 2(1) of that Act.
Grievance under collective agreement
(8) An employee who is aggrieved by a subject-matter described in paragraph (1)(a) or (b) should, if the employee is bound by a collective agreement that provides for final and binding arbitration of grievances in respect of the subject-matter, present a grievance under the agreement.
Exercise of rights
(9) An employee who exercises their right within the time permitted under the collective agreement is not permitted to make an application under subsection (1) in respect of the same subject-matter unless it is determined that the arbitrator does not have jurisdiction to hear the grievance. In that case, the employee may, within 90 days after the day on which a final determination is made that the arbitrator does not have jurisdiction, make an application under that subsection.
Notice of decision
205.061 If the provincial labour relations board dismisses an application made under subsection 205.06(1) it shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employer, provider of services, person or organization that is the subject of the application.
Order to pay wages or grant benefits
205.062 (1) If the provincial labour relations board decides that an employer or a provider of services that is providing services related to the placement of an employee has failed to pay wages or grant benefits to the employee that are required under this Part, it may order the employer or provider of services, as the case may be, subject to any terms and conditions that it considers appropriate,
(a) to pay those wages or grant those benefits; and
(b) to take any other measure necessary to remedy the matter.
Order in case of reprisal action
(2) If the provincial labour relations board decides that a person or organization has taken reprisal action contrary to subsection 205.059(2), it may, subject to any terms and conditions that it considers appropriate, order
(a) the reinstatement of an employee by an employer on the same terms and conditions under which the employee was employed immediately before the reprisal action;
(b) the payment or the granting to an employee, by the person or organization, of any wages or benefits that the employee would have been entitled to but for the reprisal action;
(c) the removal of any reprimand or other references to the matter from the records of any person or organization;
(d) the reinstatement of an employee to a union if the employee has been expelled by the union; and
(e) the taking by the person or organization of any other measure necessary to remedy the matter.
Order in case of threat of reprisal action
(3) If the provincial labour relations board decides that a person or organization has threatened to take reprisal action contrary to subsection 205.059(2), it shall order the person or organization not to take that action.
Copy of order to Chief Safety Officer
(4) The provincial labour relations board shall, immediately after making an order under this section, give a copy of it to the Chief Safety Officer.
Order to specify breach
(5) An order made under this section shall specify the provisions of this Part or of the regulations made under this Part that have not been complied with or the nature of any reprisal action taken or threatened to be taken contrary to subsection 205.059(2), as the case may be.
Application by employer or provider of services
205.063 (1) An employer or a provider of services may apply in writing to the provincial labour relations board for a determination as to whether
(a) an employee has received wages and benefits under subsection 205.052(3) knowing that no circumstances existed that would warrant the employee’s refusal, under section 205.05, to perform an activity; or
(b) an employee has received wages and benefits under subsection 205.055(3) knowing that no circumstances existed that would warrant the employee’s refusal, under section 205.054, to be transported.
Time limit
(2) The application shall be made within 30 days after all avenues of redress have been exhausted by the employee.
Burden of proof
(3) The burden of proving that no circumstances existed that would warrant the refusal by the employee is on the employer or the provider of services.
Conduct of proceeding
(4) The rules of practice and procedure that apply to applications for the determination of a matter made under the Provincial Labour Relations Act apply to applications made under subsection (1).
Costs
(5) The costs incurred by the provincial labour relations board in respect of an application made under subsection (1), including the remuneration of its members, shall be paid by the Board as defined in section 2.
Powers, privileges and immunities
(6) The provincial labour relations board and each of its members has the powers, privileges and immunities granted by the Provincial Labour Relations Act.
Non-application of Federal Courts Act
(7) For the purposes of the Federal Courts Act, the provincial labour relations board, when exercising jurisdiction or powers under this section, is not a federal board, commission or other tribunal as defined in subsection 2(1) of that Act.
Notice of decision
205.064 If the provincial labour relations board dismisses an application made under subsection 205.063(1), it shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employee who is the subject of the application.
Notice of decision
205.065 If the provincial labour relations board determines that an employee has received wages and benefits under subsection 205.052(3) or 205.055(3) knowing that no circumstances existed that would warrant the refusal by the employee under section 205.05 to perform an activity, or the refusal by the employee under section 205.054 to be transported, as the case may be, it shall immediately give notice of the decision to the applicant, the Chief Safety Officer and the operator, as well as to the employee who is the subject of the application.
Activities of Board
Research, studies and programs
205.066 (1) The Board may, for the purposes of this Part,
(a) undertake research into the causes of and the means of preventing or reducing occupational injury and illness;
(b) cause studies to be made into occupational health and safety;
(c) publish the results of the research or studies;
(d) compile, prepare and disseminate information related to occupational health and safety obtained from the research and studies;
(e) implement programs to prevent or reduce occupational injury and illness; and
(f) implement — in accordance with the regulations, if any — programs for medical monitoring and examination related to occupational health and safety, request any employer to do so or appoint any medical practitioner qualified in occupational medicine to do so.
Consent for medical monitoring or examination
(2) For the purposes of paragraph (1)(f), medical monitoring or examination of an employee may be conducted only with the employee’s written consent.
Cooperation with governments, etc.
(3) The Board may carry out the activities described in paragraphs (1)(a), (e) and (f) in conjunction with any department or agency of the Government of Canada, the government of any province or a foreign government, or with any other organization that carries out similar activities.
Guidelines and interpretation notes
205.067 (1) The Board may issue and publish, in any manner that it considers appropriate, guidelines and interpretation notes with respect to the application and administration of this Part.
Not statutory instruments
(2) The guidelines and interpretation notes are not statutory instruments for the purposes of the Statutory Instruments Act.
Authorization
Recommendation of Chief Safety Officer
205.068 (1) On receipt under subsection 138(3.1) of an application for an authorization, or to amend an authorization, the Chief Safety Officer shall
(a) consider the potential impact of the work or activity to be authorized on the health and safety of employees engaged in the work or activity; and
(b) make a written recommendation to the Board on the matters considered.
Board to take recommendation into account
(2) In deciding whether to issue or amend an authorization, the Board shall take into account the recommendation of the Chief Safety Officer.
Authorization — occupational health and safety
(3) In addition to any requirement or approval determined by the Board under Part III to which an authorization is subject, the authorization is also subject to any requirements and approvals, not inconsistent with the provisions of this Act or the regulations, that the Board determines relate to occupational health and safety.
Substitutions
Powers of Chief Safety Officer — workplace
205.069 (1) The Chief Safety Officer may, on application, permit the use at a workplace, for a specified time and subject to specified conditions, of specified equipment, methods, measures, standards or other things, in lieu of any required by regulations made under this Part, if he or she is satisfied that protection of the health and safety of employees at the workplace would not be diminished and the granting of the permission is not otherwise prohibited by regulation.
No contravention
(2) The regulations are not considered to be contravened if there is compliance with a permission under subsection (1).
Application
(3) The application shall
(a) be in a form acceptable to the Chief Safety Officer;
(b) include information with respect to the consequences to health and safety that might reasonably be anticipated if the permission is granted; and
(c) be accompanied by technical information sufficient to enable the Chief Safety Officer to make a decision on the application.
Public notice
(4) On receipt of the application, the Chief Safety Officer shall make it available to the public in a manner that he or she considers advisable, together with a notice that submissions may be made to him or her for a period of 30 days — or any shorter period fixed by him or her with the agreement of the applicable workplace committee — after the day on which the application has been made available.
Notice at workplace
(5) If the application is made in respect of an existing workplace, the applicant shall give a copy of the application to the operator. An operator shall, immediately after it receives or makes an application relating to an existing workplace
(a) post a copy of it in printed form in a prominent place at the workplace; and
(b) provide a copy to any committee established for that workplace and to any union representing employees within the offshore area.
Decision
(6) The Chief Safety Officer shall, as soon as possible after the end of the period referred to in subsection (4), inform, in a manner that he or she considers advisable, the applicant, the operator and the public of the decision made on the application.
Reconsideration of decision
(7) The Chief Safety Officer may, on his or her own initiative or on application by the applicant for the permission under subsection (1), reconsider, confirm, vary, revoke or suspend a decision made on the application at any time if information is made available that, had it been known when the decision was made, would reasonably be expected to have resulted in a different decision from the one made at that time. In that case, subsections (1) to (6) apply with the necessary modifications.
Powers of Chief Safety Officer — passenger craft
205.07 (1) The Chief Safety Officer may, on application by an operator, permit the use on a passenger craft, or the use in respect of employees or other passengers being transported on a passenger craft, for a specified time and subject to specified conditions, of specified equipment, methods, measures, standards or other things, in lieu of any required by regulations made under this Part, if the granting of the permission is not otherwise prohibited by regulation made under this Part and if he or she is satisfied that protection of the health and safety of the employees or other passengers being transported would not be diminished.
No contravention
(2) The regulations are not considered to be contravened if there is compliance with a permission under subsection (1).
Application
(3) The application shall
(a) be in a form acceptable to the Chief Safety Officer;
(b) include information with respect to the consequences to health and safety that might reasonably be anticipated if the permission is granted;
(c) be accompanied by technical information sufficient to enable the Chief Safety Officer to make a decision on the application; and
(d) be accompanied by documentation issued by the Minister of Transport indicating that if the permission is granted, it would not contravene any Act or law that applies to the operation of a passenger craft.
Public notice
(4) On receipt of the application, the Chief Safety Officer shall make it available to the public in a manner that he or she considers advisable, together with a notice that submissions may be made to him or her for a period of 30 days — or any shorter period fixed by him or her with the agreement of each workplace committee established by the operator — after the day on which the application has been made available.
Notice at workplace
(5) An operator shall, immediately after it makes an application, post a copy of it in printed form in a prominent place at each of its workplaces, and provide a copy to any committee established for that workplace.
Decision
(6) The Chief Safety Officer shall, as soon as possible after the end of the period referred to in subsection (4), inform, in a manner that he or she considers advisable, the operator and the public of the decision made on the application.
Reconsideration of decision
(7) The Chief Safety Officer may, on his or her own initiative or on application by the operator who requested a permission under subsection (1), reconsider, confirm, vary, revoke or suspend a decision made on the application at any time when information is made available that, had it been known when the decision was made, would reasonably be expected to have resulted in a different decision from the one made at that time. In that case, subsections (1) to (6) apply with the necessary modifications.
Administration and Enforcement
Occupational health and safety officers
205.071 (1) Subject to subsection (3), the Federal Minister shall, within 30 days after the day on which the Minister is notified that the Provincial Minister has designated an individual as an occupational health and safety officer under the Provincial Act, designate that individ- ual as an occupational health and safety officer for the purposes of the administration and enforcement of this Part.
Notice of designation
(2) The Federal Minister shall, without delay after making the designation, notify the Provincial Minister in writing that the designation has been made and provide a copy to the Board.
Restriction
(3) The Federal Minister shall not designate an individual if he or she is not satisfied that the individual is qualified to exercise the powers and carry out the duties and functions of an occupational health and safety officer under this Part. If an individual is not designated, the Federal Minister shall without delay notify the Provincial Minister of it in writing and provide a copy to the Board.
Limitation
(4) No individual may be designated under subsection (1) unless they have been recommended to the Provincial Minister by the Board.
Indemnification
(5) An individual designated under subsection (1) who is not an employee of the Board is deemed to be an officer for the purposes of section 16.
Certificate to be produced
(6) An individual designated under subsection (1) shall be provided with a certificate of designation, and, on entering any place under the authority of this Part shall, if so requested, produce the certificate to the person in charge of the place.
Special officers
205.072 (1) If the Provincial Minister is satisfied that the circumstances described in paragraphs (a) and (b) exist and he or she appoints an individual as a special officer under the Provincial Act in relation to a matter connected to the risk described in paragraph (a), the Federal Minister may, after being advised of that appointment, and subject to subsection (2), designate that individual as a special officer for the purposes of the administration and enforcement of this Part in relation to the same matter:
(a) there are reasonable grounds to believe that action by a special officer is required to avoid a serious risk to the health and safety of employees in the offshore area within the near future; and
(b) the risk cannot be avoided through the exercise of powers conferred under subsection 42(1.1) or section 205.119 or 205.12.
Restriction
(2) The Federal Minister may designate the individual only if he or she, after consulting with the Minister of Labour, is satisfied that the circumstances described in paragraphs (1)(a) and (b) exist and that the individual is qualified to exercise the powers and carry out the duties and functions of a special officer under this Part.
Notice of designation
(3) The Federal Minister shall, without delay after making a designation, notify the Provincial Minister in writing that the designation has been made and provide a copy to the Board.
Certificate to be produced
(4) The individual shall be provided with a certificate of designation and, on entering any place under the authority of this Part, shall, if so requested, produce the certificate to the person in charge of the place.
No liability
(5) No action lies against the Board for anything done or omitted to be done by an individual designated under subsection (1) while carrying out their duties or functions, or by any person in the course of assisting such an individual.
Orders for verifying compliance
205.073 (1) A health and safety officer may, for the purpose of verifying compliance with this Part, order an operator, employer, employee, supervisor, interest holder, owner, provider of services or supplier
(a) to do, in a place that is used for any work or activity for which an authorization has been issued, including a passenger craft or an aircraft or vessel that has been used or is intended to be used as a passenger craft, any of the following:
(i) inspect anything,
(ii) pose questions or conduct tests or monitoring, and
(iii) take photographs or measurements or make recordings or drawings;
(b) to accompany or assist the officer while the officer is in a place described in paragraph (a);
(c) to produce a document or another thing that is in their possession or control, or to prepare and produce a document based on data or documents that are in their possession or control, in the form and manner that the officer may specify;
(d) to provide, to the best of their knowledge, information relating to any matter to which this Part applies, or to prepare and produce a document based on that information, in the form and manner that the officer may specify;
(e) to ensure that all or part of a place described in paragraph (a), or anything located in the place, that is under their control, not be disturbed for a reasonable period pending the exercise of any powers under this section; and
(f) to remove anything from a place described in paragraph (a) and to provide it to the officer, in the manner specified by the officer, for examination, testing or copying.
Orders for verifying compliance
(2) A health and safety officer may, for the purpose of verifying compliance with this Part, order any person in charge of a place, other than a person in charge of a place referred to in paragraph (1)(a), in which the officer has reasonable grounds to believe that there is anything to which this Part applies
(a) to inspect anything in the place;
(b) to pose questions, or conduct tests or monitoring, in the place;
(c) to take photographs or measurements, or make recordings or drawings, in the place;
(d) to accompany or assist the officer while the officer is in the place;
(e) to produce a document or another thing that is in their possession or control, or to prepare and produce a document based on data or documents that are in their possession or control, in the form and manner that the officer may specify;
(f) to provide, to the best of their knowledge, information relating to any matter to which this Part applies, or to prepare and produce a document based on that information, in the form and manner that the officer may specify;
(g) to ensure that all or part of the place, or anything located in the place, that is under their control, not be disturbed for a reasonable period pending the exercise of any powers under this section; and
(h) to remove anything from the place and to provide it to the officer, in the manner specified by the officer, for examination, testing or copying.
Powers on entry
(3) A health and safety officer may, for the purpose of verifying compliance with this Part and subject to section 205.075, enter a place that is used for any work or activity for which an authorization has been issued, including a passenger craft or an aircraft or vessel that has been used or is intended to be used as a passenger craft, or any other place in which the officer has reasonable grounds to believe that there is anything to which this Part applies, and may for that purpose
(a) inspect anything in the place;
(b) pose questions, or conduct tests or monitoring, in the place;
(c) take samples from the place, or cause them to be taken, for examination or testing, and dispose of those samples;
(d) remove anything from the place, or cause it to be removed, for examination, testing or copying;
(e) while at the place, take or cause to be taken photographs or measurements, make or cause to be made recordings or drawings or use systems in the place that capture images or cause them to be used;
(f) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;
(g) prepare a document, or cause one to be prepared, based on data contained in or available to the computer system;
(h) use any copying equipment in the place, or cause it to be used, to make copies;
(i) be accompanied while in the place by any individual, or be assisted while in the place by any person, that the officer considers necessary; and
(j) meet in private with any individual in the place, with the agreement of that individual.
Clarification
(4) For greater certainty, a health and safety officer who has entered a place under subsection (3) may order any individual in the place to do anything described in paragraphs (1)(a) to (f) or (2)(a) to (h), as the case may be.
Return of things removed
(5) Anything removed under paragraph (1)(f), (2)(h) or (3)(d) for examination, testing or copying shall, if requested by the person from whom it was removed, be returned to that person after the examination, testing or copying is completed, unless it is required for the purpose of a prosecution under this Part.
Reports to be provided to operator
205.074 (1) A health and safety officer shall provide to an operator written reports respecting anything inspected, tested or monitored at any of its workplaces by, or on the order of, the officer for the purpose of verifying compliance with this Part.
Reports to be provided to employer
(2) A health and safety officer shall provide to each employer at a workplace written reports respecting anything inspected, tested or monitored at the workplace by, or on the order of, the officer for the purpose of verifying compliance with this Part that relate to the health and safety of the employer’s employees.
Editing of report — trade secrets
(3) If a report contains a trade secret, the health and safety officer may edit the report to protect the trade secret.
Editing of report — medical and other information
(4) If a report contains information relating to the medical history of an identifiable individual or other prescribed information relating to an identifiable individual, the health and safety officer shall edit the report to protect that information before providing it to an operator or employer, unless the individual to whom the information relates consents in writing to the disclosure of the information to the operator or employer.
Entering living quarters
205.075 (1) If the place referred to in subsection 205.073(3) is living quarters, a health and safety officer is not authorized to enter those quarters without the consent of the occupant except
(a) to execute a warrant issued under subsection (4);
(b) to verify that any lifesaving equipment that is prescribed is readily available and in good condition; or
(c) to verify that those quarters, if on a marine installation or structure, are in a structurally sound condition sufficient to ensure the health and safety of employees.
Notice
(2) The officer shall provide reasonable notice to the occupant before entering living quarters under paragraph (1)(b) or (c).
Exception
(3) Despite paragraphs (1)(b) and (c), any locker in the living quarters that is fitted with a locking device and that is assigned to the occupant shall not be opened by the officer without the occupant’s consent except under the authority of a warrant issued under subsection (4).
Authority to issue warrant
(4) On ex parte application, a justice of the peace may issue a warrant authorizing a health and safety officer who is named in it to enter living quarters subject to any conditions specified in the warrant if the justice is satisfied by information on oath that
(a) the living quarters are a place referred to in subsection 205.073(3);
(b) entry to the living quarters is necessary to verify compliance with this Part; and
(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
Authority to open locker
(5) The warrant may also authorize a locker described in subsection (3) to be opened, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) it is necessary to open the locker to verify compliance with this Part; and
(b) the occupant to whom it is assigned refused to allow it to be opened or there are reasonable grounds to believe that the occupant to whom it is assigned will refuse to allow it to be opened or that consent to opening it cannot be obtained from that occupant.
Use of force
(6) The health and safety officer who executes a warrant issued under subsection (4) shall not use force unless the use of force has been specifically authorized in the warrant.
Telewarrant provisions to apply
(7) A warrant may be issued under this section by telephone or other means of telecommunication on information submitted by a health and safety officer by one of those means, and section 487.1 of the Criminal Code applies for that purpose, with any modifications that the circumstances require.
Definition of “living quarters”
(8) In this section, “living quarters” means sleeping quarters provided for the accommodation of employees on a marine installation or structure or a passenger craft, and any room for the exclusive use of the occupants of those quarters that contains a toilet or a urinal.
Assistance to officers
205.076 (1) The operator for, employers, employees and supervisors at, owners of, suppliers or providers of services to, as well as the person in charge of, a place entered by a health and safety officer under subsection 205.073(3) — and the interest holders having an interest, or a share of an interest, in any portion of the offshore area in which the place is located — shall give all assistance that is reasonably required to enable the officer to verify compliance with this Part and shall provide any documents, data or information that is reasonably required for that purpose.
Transportation, accommodation and food
(2) If the place referred to in subsection 205.073(3) is a workplace, the operator shall provide to the health and safety officer, and to every individual accompanying that officer, free of charge,
(a) suitable transportation between the operator’s usual point of embarkation on shore and the workplace, between the workplace and the operator’s usual point of disembarkation on shore, and between workplaces; and
(b) suitable accommodation and food at the workplace.
False statements or information
205.077 No person shall make a false or misleading statement or provide false or misleading information, in connection with any matter under this Part, to a health and safety officer who is carrying out duties or functions under this Part or to the Chief Safety Officer when he or she is conducting a review under section 205.099.
Obstruction
205.078 No person shall obstruct or hinder a health and safety officer who is carrying out duties or functions under this Part or the Chief Safety Officer when he or she is conducting a review under section 205.099.
Accompaniment of health and safety officer
205.079 (1) A health and safety officer who is inspecting, testing or monitoring anything in a workplace under subsection 205.073(3) shall give to an employer representative at the workplace, and to a member of the workplace committee who represents employees, an opportunity to accompany the officer when the officer is carrying out those activities.
Employee representative unavailable
(2) If no employee representative from the workplace committee is available, the officer may select one or more other employees to accompany them.
Unaccompanied examination
(3) The officer may carry out the activities without being accompanied by an employer or employee representative if either or both of them are unavailable and the officer considers that it is necessary to proceed immediately with those activities.
Consultation with employees
(4) If the officer is not accompanied by an employee representative, the officer shall endeavour to consult with a number of employees when carrying out the activities.
Compensation of employee
(5) An individual who is accompanying or being consulted by an officer under this section shall be paid the same wages and granted the same benefits that the individual would have received had they been working.
Authority to issue warrant
205.08 (1) On ex parte application, a justice of the peace may issue a warrant if the justice is satisfied by information on oath that there are reasonable grounds to believe that there is in any place anything that will provide evidence or information relating to the commission of an offence under this Part.
Powers under warrant
(2) The warrant may authorize a health and safety officer, and any other individual named in the warrant, to at any time enter and search the place and to seize anything specified in the warrant, or do any of the following as specified in it, subject to any conditions that may be specified in it:
(a) conduct examinations, tests or monitoring;
(b) take samples for examination or testing, and dispose of those samples; or
(c) take photographs or measurements, make recordings or drawings, or use systems in the place that capture images.
Where warrant not necessary
(3) A health and safety officer may exercise the powers described in this section without a warrant if the conditions for obtaining the warrant exist but by reason of exigent circumstances it would not be feasible to obtain one.
Exigent circumstances
(4) Exigent circumstances include circumstances in which the delay necessary to obtain the warrant would result in danger to human life or the loss or destruction of evidence.
Operation of computer system and copying equipment
(5) An individual authorized under this section to search a computer system in a place may
(a) use or cause to be used any computer system at the place to search any data contained in or available to the computer system;
(b) reproduce or cause to be reproduced any data in the form of a printout or other intelligible output;
(c) seize any printout or other output for examination or copying; and
(d) use or cause to be used any copying equipment at the place to make copies of the data.
Duty of person in charge of place
(6) Every person who is in charge of a place in respect of which a search is carried out under this section shall, on presentation of the warrant, permit the individual carrying out the search to do anything described in subsection (5).
Transportation, accommodation and food
(7) An operator shall provide, free of charge, to an individual who is executing a warrant under this section at any of its workplaces
(a) suitable return transportation between the workplace and any location from which transportation services to that workplace are usually provided, and between workplaces; and
(b) suitable accommodation and food at the workplace.
Telewarrant provisions to apply
(8) A warrant may be issued under this section by telephone or other means of telecommunication on information submitted by a health and safety officer by one of those means, and section 487.1 of the Criminal Code applies for that purpose, with any modifications that the circumstances require.
Storage and removal
205.081 (1) A thing seized under this Part may be stored in the place where it was seized or may, at the discretion of a health and safety officer, be removed to any other place for storage. The owner of the thing or the person who is lawfully entitled to possess it shall pay the costs of storage or removal.
Perishable things
(2) If the thing seized is perishable, a health and safety officer may destroy the thing, or otherwise dispose of it in any manner the officer considers appropriate. Any proceeds realized from its disposition shall be paid to the Receiver General.
Non-disturbance of Scene
Serious injury or death
205.082 (1) In the case of an incident at a workplace, or involving a passenger craft, that results in serious injury or death, no person shall, unless authorized to do so by a health and safety officer, disturb anything related to the incident except to the extent necessary to
(a) attend to any individuals who are injured or killed;
(b) prevent further injuries; or
(c) prevent damage to or loss of property.
Exception — passenger craft
(2) If an individual is killed or seriously injured by an incident involving a passenger craft, an individual who is investigating the incident under the Aeronautics Act, the Canada Shipping Act, 2001 or the Canadian Transportation Accident Investigation and Safety Board Act is not required to obtain an authorization under subsection (1).
Disclosure of Information
Provision of information
205.083 No person shall prevent an employee from providing to a health and safety officer or to the Board, or to any person or committee having duties or functions under this Part, information that they may require to carry out their duties or functions.
Information not to be disclosed
205.084 Subject to sections 205.087 to 205.089, no person shall — except for the purposes of this Part, for the purposes of a prosecution under this Part, for the purposes of Part III as it relates to safety or for the purposes of a prosecution under Part III that relates to safety — disclose the results of
(a) activities carried out by or on the order of a health and safety officer for the purpose of verifying compliance with this Part; or
(b) activities carried out under a warrant issued under this Part.
Non-disclosure of identity
205.085 Subject to section 205.088, no individual to whom information obtained under this Part is communicated in confidence shall disclose the identity of the individual who provided it except for the purposes of this Part, and no individual who obtains such information in confidence is competent or compellable to disclose the identity of the individual who provided it before any court or other tribunal except by order of the court or tribunal on any terms and conditions that the court or tribunal considers just.
Non-disclosure of trade secrets
205.086 (1) Subject to subsections (2) and 205.088(1), trade secrets that become known to a health and safety officer who enters a place under subsection 205.073(3), or to an individual accompanying or a person assisting the officer, are privileged and shall not be disclosed except for the purposes of this Part, or for the purposes of Part III as it relates to safety.
Information on hazardous products and materials
(2) Information that, under the Hazardous Materials Information Review Act, a person is exempt from disclosing under paragraph 205.022(d) or (e) or under paragraph 13(a) or (b) of the Hazardous Products Act, and that is obtained by a health and safety officer who enters a place under subsection 205.073(3), or by an individual accompanying or a person assisting the officer, is privileged and, despite the Access to Information Act or any other Act or law, shall not be disclosed to any other person except for the purposes of this Part, or for the purposes of Part III as it relates to safety.
Secondary release of information
(3) Subject to subsection 205.088(2), information disclosed under subsection (1) or (2) shall not be further disclosed by the recipient, except for the purpose for which it was disclosed to them.
Disclosure by Chief Safety Officer
205.087 (1) Despite section 119, the Chief Safety Officer may disclose information — other than information relating to the medical history of an identifiable individual or other prescribed information relating to an identifiable individual, an individual’s identity the disclosure of which is restricted under section 205.085 or information the disclosure of which is restricted under section 205.086 — related to occupational health and safety that he or she obtains in his or her capacity as Chief Safety Officer to officials of the federal government, a provincial government or a foreign government, or of an agency of any of those governments, for the purposes of a federal or provincial law or activity or a foreign law, if the Officer is satisfied that disclosure is in the interest of health and safety and the information is disclosed subject to any conditions agreed upon by the Officer and the government or agency.
Disclosure by federal government or agency
(2) Officials of the federal government or of an agency of the federal government may for the purposes of this Part disclose information related to occupational health and safety — other than information relating to the medical history of an identifiable individual or other prescribed information relating to an identifiable individual — to the Chief Safety Officer, if they are satisfied that disclosure is in the interest of health and safety and it is disclosed subject to any conditions agreed upon by the federal government or agency and the Officer.
Secondary release of information
(3) Information disclosed under subsection (1) or (2) shall not be further disclosed by the recipient without the consent in writing of the person who disclosed it to them, unless it is disclosed for the same purposes and subject to the conditions referred to in that subsection.
Access to information by governments
205.088 (1) The Federal Minister and the Provincial Minister are entitled to access to any information that is recorded in any form — other than information relating to the medical history of an identifiable individual or information the disclosure of which is restricted under subsection 205.086(2) — if the record is under the control of the Board and the information relates to this Part, and that information shall, on the request of either Minister, be disclosed to that Minister without requiring the consent in writing of the person to whom the information relates.
Secondary release of information
(2) Information disclosed to either Minister under subsection (1) shall not be further disclosed by that Minister without the consent in writing of the person to whom it relates except for the purposes of this Part or for the purposes of Part III as it relates to safety.
Disclosure by Board
205.089 Despite section 119, the Board may, after consulting with the Chief Safety Officer, disclose information under its control that relates to this Part — other than information relating to the medical history of an identifiable individual or other prescribed information relating to an identifiable individual, an individ- ual’s identity the disclosure of which is restricted under section 205.085 or information the disclosure of which is restricted under section 205.086 — if the Board is satisfied that the public interest in making the disclosure clearly outweighs any potential harm resulting from the disclosure.
Proceedings
Privilege
205.09 (1) No health and safety officer and no individual who has accompanied or person who has assisted the officer in carrying out the officer’s duties or functions may be required to give testimony in civil or administrative proceedings, other than proceedings under this Part, relating to information obtained in the exercise of the officer’s powers or in the carrying out of the officer’s duties or functions or in accompanying or assisting the officer, except with the written permission of the Board.
Non-application of section 205.084
(2) If a person to whom subsection (1) applies is required to give testimony in civil or administrative proceedings for which they have the written permission referred to in that subsection, section 205.084 does not apply to restrict the disclosure of the results described in that section.
Privilege
(3) No person shall be required to produce or give evidence in any civil or administrative proceeding relating to any information disclosed to them under subsection 205.087(1) or (2) or 205.088(1).
No action against health and safety officer
205.091 No action lies against
(a) a health and safety officer for anything done or omitted to be done by them in good faith while carrying out their duties or functions under this Part; or
(b) an individual accompanying or a person assisting a health and safety officer for anything done or omitted to be done by them in good faith while carrying out their duties or functions under this Part.
Orders and Decisions
Order to terminate contravention
205.092 A health and safety officer who is of the opinion that a provision of this Part or of the regulations made under this Part is being contravened or has recently been contravened by any person may order the person to
(a) terminate the contravention within the time that the officer specifies; and
(b) take measures specified by the officer, within the period that they specify, to ensure that the contravention does not continue or reoccur.
Dangerous situations — order
205.093 (1) If a health and safety officer is of the opinion that the performance of an activity — including the use or operation of any thing or the conditions under which an activity is performed — constitutes a danger to an employee or other individual at a workplace or a passenger on a passenger craft, the officer shall order any person to take measures, immediately or within the period that the officer specifies
(a) to correct the hazard or condition, or to alter the activity, that constitutes the danger; or
(b) to protect any individual from the danger.
Dangerous situations — additional order
(2) If a health and safety officer is of the opinion that the measures cannot be taken immediately, the officer may order any person not to use a place, operate a thing or perform an activity to which an order under subsection (1) relates until that order is complied with.
Necessary measures
(3) Nothing in subsection (2) prevents the doing of anything necessary to comply with the order under subsection (1).
Posting notice of danger
(4) If a health and safety officer makes an order under subsection (2), the officer shall post or affix or cause to be posted or affixed to or near the place or thing to which the order relates, or in the area in which the activity to which the order relates is performed, a notice in the form, and containing the information, that the officer may specify, and no person shall remove the notice unless they are authorized by a health and safety officer to do so.
Cessation of use
(5) If a health and safety officer makes an order under subsection (2), the person to whom the order is directed shall cause the use or operation of the place or thing or the perform- ance of the activity to be discontinued, and no individual shall use or operate the place or thing or perform the activity until the order under subsection (1) is complied with.
Copy of order
205.094 (1) A health and safety officer shall give a copy of any order they make under section 205.092 or subsection 205.093(1) or (2) to the person to whom it is directed and to the operator to whom the order relates. If a special officer makes the order, they shall give a copy of it to the Chief Safety Officer also.
Copy to affected employee
(2) If an occupational health and safety officer makes an order under section 205.092 or subsection 205.093(1) or (2) as a result of being notified under subsection 205.049(4), 205.05(6) or 205.054(6), or decides after being so notified not to make an order, the officer shall, as soon as possible, give a copy of the order, or written notice of the decision, to the employee who made the report under subsection 205.049(1) or who exercised their rights under section 205.05 or 205.054.
Confirmation in writing
(3) If an order is made orally under section 205.092 or subsection 205.093(1) or (2), it shall be confirmed in writing and a copy given, as soon as possible, to the persons who, under subsections (1) and (2), are required to be given a copy.
When order may be made
(4) A health and safety officer may make an order under section 205.092 or subsection 205.093(1) or (2) even if the officer is not physically present in the place to which the order refers.
Compliance notice
205.095 The person to whom an order under section 205.092 or subsection 205.093(1) or (2) is directed shall, within the period specified in the order, submit to the health and safety officer a notice of compliance describing the extent to which they have complied with the order, unless the officer decides that the notice is not necessary because compliance with the order has been achieved.
Priority — special officer
205.096 (1) An order made by a special officer prevails over an order made by an occupational health and safety officer, the Chief Safety Officer, an operational safety officer, a conservation officer or the Chief Conservation Officer, as defined in section 135, to the extent of any inconsistency between the orders.
Priority — occupational health and safety officer
(2) An order or a decision made by an occupational health and safety officer prevails over an order or a decision made by an operational safety officer, a conservation officer or the Chief Conservation Officer, as defined in section 135, to the extent of any inconsistency between the orders or decisions.
Posting and Providing of Certain Documents
Duty of operator or employer
205.097 (1) Subject to subsections (2) and (3), every operator or employer, as the case may be, shall, as soon as practicable after filing or receiving any of the following documents, post a copy of it in a prominent location at the workplace to which it relates and provide a copy of it to the workplace committee or the coordinator, as the case may be:
(a) an order made under section 205.092 or subsection 205.093(1) or (2);
(b) a notice of compliance referred to in section 205.095;
(c) an application for a review made under subsection 205.098(1) or a decision made under subsection 205.099(1); or
(d) an application for a determination made under subsection 205.1(2) or a decision or order made under subsection 205.1(6).
Editing of document — trade secrets
(2) If any document required to be posted under subsection (1) contains a trade secret, the operator or employer, as the case may be, may, before posting it, edit it to protect that trade secret. If the document is edited, the operator or employer shall obtain the written approval of a health and safety officer for the document as edited before posting it.
Editing of document — medical and other information
(3) If any document required to be posted under subsection (1) contains information relating to the medical history of an identifiable individual or other prescribed information relating to an identifiable individual, the operator or employer, as the case may be, shall — unless the individual to whom the information relates consents in writing to the information being posted — before posting it, edit it to protect that information, and obtain the written approval of a health and safety officer for the document as edited.
Obligation to post satisfied
(4) An obligation imposed on an operator or employer under subsection (1) is satisfied if
(a) the operator or employer, as the case may be, ensures that the document is posted for the time necessary, which is at least 30 days or any longer period that is prescribed, to enable employees at the workplace to inform themselves of the content; or
(b) the operator or employer, as the case may be, provides a copy of the document to each employee at the workplace.
Review and Appeals
Review
205.098 (1) Subject to subsection (2), any person who is, or any union representing employees who are, directly affected by a decision of an occupational health and safety officer under subsection 205.05(10) or 205.054(10), or by an order of an occupational health and safety officer under section 205.092 or subsection 205.093(1) or (2), may apply for a review by the Chief Safety Officer of the decision or order.
Exception
(2) If the Chief Safety Officer, acting as an occupational health and safety officer, makes a decision under subsection 205.05(10) or 205.054(10) or an order under section 205.092 or subsection 205.093(1) or (2), he or she is not permitted to review those decisions or orders.
Time limit
(3) An application for a review shall be made in writing to the Chief Safety Officer within 45 days after the date of the decision or order that is the subject of the review being made in writing or, if the decision or order was made orally, of it being confirmed in writing.
No stay
(4) Unless otherwise ordered by the Chief Safety Officer, an application for review of a decision or an order does not operate as a stay of the decision or order.
Decision
205.099 (1) On receiving an application for a review, the Chief Safety Officer shall, in a summary way and without delay, enquire into the circumstances of the decision or order and may confirm, vary or revoke the decision or order. In making his or her enquiry, the Officer may consider new information including, but not limited to, information provided by the applicant.
Review not prevented
(2) The Chief Safety Officer is not prevented from conducting a review by reason only that he or she, in the course of carrying out his or her duties and functions under this Part, receives information regarding the matter under review or communicates with any person concerning that matter.
Communication of decision
(3) The Chief Safety Officer shall provide his or her decision in writing, with reasons, to the applicant, to the operator affected by it and to any person who made representations in relation to the matter under review.
Effect of decision
(4) A decision of the Chief Safety Officer made under this section that is not appealed is final and binding and not subject to review.
Appeal
205.1 (1) Any person who is, or any union representing employees who are, directly affected by any of the following decisions or orders may appeal the decision or order to the provincial labour relations board:
(a) an order of a special officer under section 205.092 or subsection 205.093(1) or (2);
(b) an order of the Chief Safety Officer referred to in subsection 205.046(1) or (2) or 205.098(2); or
(c) a decision of the Chief Safety Officer under subsection 205.099(1).
Time limit
(2) An appeal shall be made by filing an application for a determination of the matter under the Provincial Labour Relations Act within 45 days after the date of the decision or order that is the subject of the appeal.
No stay
(3) Unless otherwise ordered by the provincial labour relations board, an appeal of a decision or order does not operate as a stay of the decision or order.
Chief Safety Officer
(4) The Chief Safety Officer may make representations to the provincial labour relations board in respect of the decision or order being appealed and that board may impose any conditions on the representations that it considers appropriate.
Conduct of appeal
(5) The rules of practice and procedure that apply to applications for the determination of a matter made under the Provincial Labour Relations Act apply to appeals made under subsection (1).
Decision
(6) The provincial labour relations board may revoke, or make an order confirming or varying, the decision or order being appealed, and may make any order that a health and safety officer has the power or duty to make under subsection 205.093(1) or (2) if it is related to the subject-matter of the decision or order being appealed and that board is satisfied that the danger still exists.
Costs
(7) The costs incurred by the provincial labour relations board in respect of an appeal made under subsection (1), including the remuneration of its members, shall be paid by the Board as defined in section 2.
Requirement to give copies to operator, etc.
(8) If the provincial labour relations board makes a decision or order under subsection (6), and an employer is required to receive a copy of the decision or order under the Provincial Labour Relations Act, the operator and Chief Safety Officer shall receive a copy of it as well.
Powers, privileges and immunities
(9) The provincial labour relations board and each of its members has the powers, privileges and immunities granted by the Provincial Labour Relations Act.
Cessation of use
(10) If the provincial labour relations board makes an order that a health and safety officer has the power or duty to make under subsection 205.093(2) in respect of a place, thing or activity, the person to whom the order is directed shall cause the use or operation of the place or thing or the performance of the activity to be discontinued, and no individual shall use or operate the place or thing or perform the activity until the measures ordered by that board have been taken.
Non-application of Federal Courts Act
(11) For the purposes of the Federal Courts Act, the provincial labour relations board, when exercising jurisdiction or powers under this section, is not a federal board, commission or other tribunal as defined in subsection 2(1) of that Act.
Compensation of employees
205.101 Time spent by an employee attending proceedings under section 205.1 as a party, or as a witness as a result of a summons, is considered to be work time for which the employee shall be paid the same wages and granted the same benefits that the employee would have received had they worked for that time.
Non-application of Federal Courts Act
205.102 For the purposes of the Federal Courts Act, neither the Board, the Chief Safety Officer nor a health and safety officer, when exercising or purporting to exercise jurisdiction or powers conferred on them under this Part, is a federal board, commission or other tribunal as defined in subsection 2(1) of that Act.
Enforcement of Orders
Supreme Court of Newfoundland and Labrador
205.103 (1) An order made under any of subsections 205.062(1) to (3) or 205.1(6) may, for the purpose of its enforcement, be made an order of the Supreme Court of Newfoundland and Labrador and shall be enforced in the same manner as any order of that Court.
Procedure for enforcement
(2) To make the order an order of the Supreme Court of Newfoundland and Labrador, the rules of practice and procedure established under the Provincial Labour Relations Act for making any order an order of that Court may be followed.
When order rescinded or replaced
(3) After an order has been made an order of the Supreme Court of Newfoundland and Labrador, any subsequent order rescinding or replacing the first order has the effect of cancelling the order of the Court, and that subsequent order may be made an order of that Court in the same manner.
Offences and Penalties
Offences
205.104 (1) Every person is guilty of an offence who
(a) contravenes any provision of this Part or of the regulations made under this Part;
(b) makes any false entry or statement in any report, record or other document required by this Part or the regulations made under this Part or by any order made under this Part;
(c) destroys, damages or falsifies any report, record or other document required by this Part or the regulations made under this Part or by any order made under this Part;
(d) fails to comply with an order of a health and safety officer;
(e) fails to comply with a requirement of the Chief Safety Officer under section 205.016 or 205.021;
(f) fails to comply with a decision of the Chief Safety Officer under section 205.099; or
(g) fails to comply with an order of the provincial labour relations board under subsection 205.1(6).
Punishment
(2) Every person who is guilty of an offence under subsection (1) is liable
(a) on summary conviction, to a fine not exceeding $100,000 or to imprisonment for a term not exceeding one year, or to both; or
(b) on conviction on indictment, to a fine not exceeding $1,000,000 or to imprisonment for a term not exceeding five years, or to both.
Offence — paragraph (1)(a)
(3) Despite paragraph (1)(a), a person who contravenes paragraph 205.013(l) or (m), 205.019(1)(k), 205.035(b) or 205.036(1)(b) is not guilty of an offence unless compliance with that paragraph is necessary to protect occupational health and safety.
Self-incrimination
(4) No individual shall be excused from recording in accordance with section 205.013 or 205.019 instances of non-compliance and any corrective action taken on the grounds that any information given by them may tend to incriminate them or subject them to any proceeding or penalty, but the information, or any evidence derived from it, may not be used or received to incriminate that individual in any criminal proceeding initiated against them, other than a prosecution under section 132, 136 or 137 of the Criminal Code.
Due diligence defence
(5) No person shall be found guilty of an offence under subsection (1) if they establish that they exercised due diligence to prevent the commission of the offence.
Offence by officers, etc., of corporation
205.105 (1) If a corporation commits an offence under this Part, any of the following individuals 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 is liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted:
(a) an officer, director or agent of the corporation; and
(b) any other individual exercising managerial or supervisory functions in the corporation.
Offence by employee or agent
(2) In a prosecution for an offence under this Part, it is sufficient proof of the offence to establish that it was committed by an employee or agent of the accused, whether or not the employee or agent is identified or has been prosecuted for the offence.
Imprisonment precluded in certain cases
205.106 If an individual 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.
Orders of court
205.107 (1) If a person is convicted of an offence under this Part, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, in addition to any other punishment that may be imposed under this Part, make an order that has any or all of the following effects:
(a) prohibiting the offender from committing an act or engaging in an activity that may, in the opinion of the court, result in the continuation or repetition of the offence;
(b) directing the offender to take any meas- ures that the court considers appropriate to avoid any harm to health or safety that may result from the act or omission that constituted the offence, or to remedy any harm to health or safety resulting from it;
(c) directing the offender, at the offender’s own expense, to publish, in any manner that the court directs, the facts relating to the offence;
(d) directing the offender to submit to the Chief Safety Officer, on application by that Officer within three years after the conviction, any information with respect to the offender’s activities that the court considers appropriate in the circumstances;
(e) directing the offender to pay to the Board an amount of money that the court considers appropriate for the purpose of conducting research, education and training in occupational health and safety matters;
(f) directing the offender to perform community service, subject to any reasonable conditions that may be imposed by the court;
(g) directing the offender to post a bond or pay an amount of money into court that the court considers appropriate to ensure that the offender complies with any prohibition, direction, requirement or condition that is specified in the order; and
(h) requiring the offender to comply with any conditions that the court considers appropriate in the circumstances for securing the offender’s good conduct and for preventing the offender from repeating the same offence or committing another offence under this Part.
Coming into force and duration of order
(2) An order made under subsection (1) comes into force on the day on which the order is made or on any other day that the court may determine, but shall not continue in force for more than three years after that day.
Publication
(3) If an offender does not comply with an order under paragraph (1)(c) requiring the publication of facts relating to the offence, the Chief Safety Officer may publish the facts and recover the costs of publication from the offender.
Variation of sanctions
205.108 (1) Subject to subsection (2), if a court has made an order under subsection 205.107(1), the court may, on application by the offender or the Chief Safety Officer, require the offender to appear before it and, after hearing the offender and the Chief Safety Officer, vary the order in one or more of the following ways that the court considers appropriate because of a change in the circumstances of the offender since the order was made:
(a) by making changes to any prohibition, direction, requirement or condition that is specified in the order or by extending the time during which the order is to remain in force for any period, not exceeding one year, that the court considers appropriate; or
(b) by decreasing the time during which the order is to remain in force or by relieving the offender, either absolutely or partially or for any period that the court considers appropriate, of compliance with any condition that is specified in the order.
Notice
(2) Before making an order under subsection (1), the court may direct that notice be given to any persons that the court considers to be interested and may hear any of those persons.
Subsequent applications with leave
205.109 If an application made under subsection 205.108(1) in relation to an offender has been heard by a court, no other application may be made under that section in relation to the offender except with leave of the court.
Recovery of fines and amounts
205.11 If a person is convicted of an offence under this Part and a fine that is imposed is not paid when required or if a court orders an offender to pay an amount under subsection 205.107(1) or 205.108(1), the prosecutor may, by filing the conviction or order, as the case may be, enter as a judgment the amount of the fine or the amount ordered to be paid, and costs, if any, in the Supreme Court of Newfoundland and Labrador, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against them in that Court in civil proceedings.
Order to comply
205.111 If a person is guilty of an offence under this Part, a court may, in addition to any other penalty it may impose, order that person to comply with the provisions of this Part or the regulation or order for the contravention of which that person has been convicted.
Continuing offences
205.112 If an offence under this Part is committed on more than one day or is continued for more than one day, it constitutes a separate offence for each day on which it is committed or continued.
Time limited for summary conviction proceedings
205.113 Proceedings by way of summary conviction for an offence under this Part may be instituted at any time within but not later than three years after the day on which the subject-matter of the proceedings arose, unless the prosecutor and the defendant otherwise agree.
Evidence
205.114 In any prosecution for an offence under this Part, a copy of any order or other document purporting to have been made under this Part — and purporting to have been signed, in the case of an order or other document purporting to have been made by the provincial labour relations board, by the chief executive officer or a member of that board and, in any other case, by the individual authorized under this Part to make that order or document — is, in the absence of any evidence to the contrary, proof of the matters set out in it.
Jurisdiction of justice or judge
205.115 Any complaint or information relating to an offence under this Part may be heard, tried or determined by a justice of the peace or judge if the accused is resident or carrying on business within the territorial jurisdiction of that justice or judge although the matter of the complaint or information did not arise in that territorial jurisdiction.
Action to enjoin not prejudiced by prosecution
205.116 (1) Even though a prosecution has been instituted for an offence under this Part, the Board may commence and maintain an action to enjoin the committing of any contravention of any provision of this Part or of the regulations made under this Part.
Civil remedy not affected
(2) No civil remedy for any act or omission is suspended or affected by reason that the act or omission is an offence under this Part.
Information
205.117 In any proceedings for an offence under this Part
(a) an information may include more than one offence committed by the same person;
(b) all those offences may be tried concurrently; and
(c) one conviction for any or all offences so included may be made.
Advisory Council
Establishment
205.118 (1) An advisory council is established, composed of
(a) four representatives of employees and four representatives of industry;
(b) two representatives of the government of Canada and two representatives of the government of the Province; and
(c) the Chief Safety Officer ex officio or his or her representative.
Appointment of employee and industry representatives
(2) Two of the employee representatives and two of the industry representatives shall be appointed jointly by the Federal Minister and the Minister of Labour and the other four shall be appointed jointly by the provincial counterparts of those Ministers.
Consultation
(3) Before making any appointment referred to in subsection (2), the Federal Minister and the Minister of Labour, or their provincial counterparts, as the case may be, shall consult with non-management employees, or the unions representing them, on the appointment of an employee representative and with industry associations on the appointment of an industry representative.
Appointment of government representatives
(4) The federal government representatives shall be appointed jointly by the Federal Minister and the Minister of Labour and the provincial government representatives shall be appointed jointly by the provincial counterparts of those Ministers.
Mandate
(5) The mandate of the advisory council is to advise the Board, the Federal Minister, the Minister of Labour and the provincial counterparts of those Ministers on
(a) the administration and enforcement of this Part; and
(b) any other matter related to occupational health and safety that is referred to it by any of them.
Remuneration and expenses
(6) At the discretion of the Federal Minister, the Minister of Labour and their provincial counterparts, the members of the advisory council may be paid
(a) the remuneration that may be jointly fixed by those Ministers and their provincial counterparts; and
(b) any reasonable travel and living expenses that are incurred by the members while carrying out their duties or functions away from their ordinary place of residence.
The Board shall pay that remuneration and those expenses.
Duration and renewal of appointments
(7) Members are to be appointed for a term of not more than five years and may be reappointed.
Chairpersons
(8) The advisory council is to have two chairpersons selected from among its members. One of the chairpersons shall be selected by the employee representatives and the other shall be selected by the industry representatives.
Audits and Inquiries
Appointment of auditor
205.119 (1) The Federal Minister or the Provincial Minister, or both, may appoint any individual as auditor to measure and report on the effectiveness of the Board in carrying out its duties and functions under this Part. A report of the audit shall be made, as soon as practicable, to each of those Ministers and the Board.
Access to information
(2) The auditor is entitled to free access at all convenient times to information that relates to the fulfilment of their responsibilities and is also entitled to require and receive from the Board and from any persons or committees having duties or functions under this Part any information — including reports — and explanations that they consider necessary for that purpose.
Inquiries
(3) The auditor may examine any individual on oath on any matter pertaining to the effectiveness of the Board in carrying out its duties and functions under this Part and, for the purposes of an examination, may exercise all the powers of a commissioner under Part I of the Inquiries Act.
Secondary release of information
(4) Information — including reports — and explanations disclosed to the auditor under subsection (2) shall not be further disclosed by the auditor without the consent in writing of the person to whom it relates.
Consideration of report
(5) The Board shall consider the report of the audit and, within 60 days after the day on which the Board receives the report, it shall send to the auditor its written response to the report, and send a copy of that response to the Federal Minister and the Provincial Minister.
Cost of audit
(6) If the Federal Minister and the Provincial Minister jointly appoint the auditor, they may also jointly agree, with the consent in writing of the Provincial Minister as defined in section 2, to require the cost of the audit to be borne by the Board. If only one of those Ministers appoints the auditor, that Minister shall pay the cost of the audit.
Inquiries
205.12 (1) The Federal Minister, the Provincial Minister, the Federal Minister jointly with the Provincial Minister or the Board may appoint one or more individuals to inquire into and report on occupational health and safety matters that are related to employment to which this Part applies.
Powers of appointee
(2) An individual who is appointed by the Federal Minister, by the Federal Minister jointly with the Provincial Minister or by the Board has all the powers of a person appointed as a commissioner under Part I of the Inquiries Act, and the powers that may be conferred on a commissioner under section 11 of that Act.
Witnesses
(3) Every witness who attends and gives evidence at an inquiry under this section is entitled to be paid reasonable travel and living expenses incurred by the witness in doing so and the witness fees prescribed in the tariff of fees in use in the Trial Division of the Supreme Court of Newfoundland and Labrador.
Consideration of report
(4) Once the Board receives a copy of the report, it shall consider the report and shall, within 60 days after the day on which it is received, send to the Federal Minister and the Provincial Minister its written response to the report.
Directions to Board
(5) If one or more individuals are appointed by a Minister or Ministers under subsection (1) in respect of a matter, the Minister or Ministers making the appointment may, if that Minister or those Ministers determine that an inquiry is being conducted under section 165 in respect of the same matter, direct that the Board terminate that inquiry and provide to that individual or those individuals any records or evidence collected in respect of the matter.
Directions binding
(6) The Board shall comply with a direction made under subsection (5).
Costs of inquiry
(7) If the Federal Minister and the Provincial Minister jointly appoint the individual or individuals under subsection (1), they may also jointly agree, with the consent in writing of the Provincial Minister as defined in section 2, to require the cost of the inquiry to be borne by the Board. If only one of those Ministers appoints an individual or individuals under that subsection, that Minister shall pay the cost of the inquiry.