If you were one of countless Nova Scotia Employers who appealed a Notice of Administrative Penalty under the Occupational Health and Safety Act in 2011, it might mean the difference between paying the penalty and having it revoked. The Labour Board recently released a decision that you will want to know more about.
Discrepancy of one day results in revocation of administrative penalty
On May 15, 2013 the Labour Board released its decision in, Lafarge Canada Inc. v. Director of Occupational Health and Safety. This was first decision by the Labour Board to consider whether a Notice of Administrative Penalty should be revoked if the date of contravention listed is off by a single day.
Three Notices of Administrative Penalty were issued to Lafarge Canada Inc., citing a date of contravention as February 24, 2011. The Report of Workplace Inspection completed by the inspector was dated February 23, 2011.
In a previous case, Kelly Rock Ltd.(Re), the Labour Board revoked a Notice of Administrative Penalty where there was a discrepancy of one month, plus inconsistencies in the file numbers cited on both documents. The Board reasoned that these discrepancies were more than mere technicalities. The date was a “particular” required by regulation to be included in the Notice. Where the date was uncertain, no contravention could be proven. Further, where such inconsistencies exist, the fundamental accuracy of these documents is called into question, and the public could lose confidence in the Administrative Penalties system.
What was left to be decided in the Lafarge case was whether a one day discrepancy in date should also result in the revocation of the Notice.
Stewart McKelvey partner Rebecca Saturley, representing Lafarge Canada Inc., argued that the length of discrepancy was irrelevant – the principles of Kelly Rock should apply to any discrepancy in date between a Report of Workplace Inspection and Notice of Administrative Penalty. The Labour Board agreed and applied the principles of Kelly Rock, dismissing all three Administrative Penalties.
The computer glitch
The Director’s explanation in both cases was that the errors were generated by a system-wide computer glitch. Neither case explains in detail the computer glitch suffered by the department, nor does either case give any indication of how many Notices of Administrative Penalty may have been affected by this glitch.
What this means for employers
If you are issued an Administrative Penalty – check that all of the information corresponds with the Report of Workplace Inspection. If not, contact a lawyer to consider an appeal.
The Labour Board has not yet determined how they will deal with the countless appeals of Notices of Administrative Penalties, where date discrepancies exist. Employers with an outstanding appeal who can identify a similar discrepancy should also consider contacting the Labour Board, or their lawyer.