Appeals of notices of violation (Administrative Monetary Penalties)
Table of contents
The Canada Labour Code requires employers to meet minimum standards for health and safety in the workplace. It also sets out minimum conditions of employment for employees for things like pay, work hours, breaks, holidays and vacations.
The Labour Program of Employment and Social Development Canada (ESDC) can issue Notices of Violation to employers that do not respect the minimum standards and conditions of employment found in the Canada Labour Code.
A Notice of Violation is a financial penalty. These penalties are also referred to as Administrative Monetary Penalties or AMPs.
I have received a notice of violation. I don't agree with it. What can I do?
- You can ask the Head of Compliance and Enforcement at the Labour Program of the ESDC (the Head) to review their decision to issue the Notice. You can also ask the Head to review the amount of the penalty.
- IMPORTANT: A request for review CANNOT be made directly to the Canada Industrial Relations Board. The Board can ONLY get involved after the request for review is filed with the Head and they have made a decision.
How do I request a review of the Notice of Violation?
- You have 30 calendar days from when you receive the Notice of Violation to ask the Head of Compliance and Enforcement at the Labour Program of the ESDC (the Head) to review it.
- If you are late, it is up to the Head to decide whether to accept your request. If the late request is not accepted, the decision is final. In this situation, you cannot appeal the decision to the Canada Industrial Relations Board.
- The steps to follow to request a review are contained in the Notice of Violation that you received. They can also be found on the ESDC’s website: Administrative Monetary Penalties - Canada Labour Code, Part IV - IPG-106 - Canada.ca
What happens after I request a review of the Notice of Violation?
- The Head of Compliance and Enforcement (the Head) will either:
- review their earlier decision themselves; or
- send the request to the Board and ask it to review the Notice of Violation.
- If the Head reviews their decision and you still do not agree with it, you have 15 calendar days from the day you receive the review decision to appeal it to the Board.
- If the Head sends the request to the Board for it to review, you will receive a letter from the Board. If this is your situation, you can skip to “What happens after I file my application to appeal or the Head refers my request for review to the Board?”.
How do I appeal the review decision of the Labour Program?
- It is strongly recommended that you use the Administrative Monetary Penalty Appeal Form to file your application. The form contains the information that the Board needs to make a decision and will help you make sure that the information that you are filing is complete.
- If you do not file all the information that the Board needs, it will take the Board longer to process your application.
- In some cases, not filing all the information that the Board needs can result in your application being dismissed without the opportunity to make any further submissions.
- All documents, including applications and all supporting documents, are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board.
- You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.
When does an application to appeal need to be filed?
- You have 15 calendar days from when you received the review decision from the Head of Compliance and Enforcement to file an application to appeal with the Board.
- The Board may accept a late application. When you file your application, you will also need to ask the Board for more time to file the application and tell it why your application is late. The Board will then decide whether to accept your application. You cannot ask for more time to file your application before you file your application.
What information should I include in my application to appeal?
- You must set out the reasons why you disagree with the review decision.
- You can contest the decision of the Head of Compliance and Enforcement (the Head) that there was a violation, the amount of the penalty or both.
- If you are contesting the finding that there was a violation, your application should clearly explain why you disagree with that decision. What did the Head get wrong?
- If you are contesting the amount of the penalty, your application should clearly explain why you disagree with the amount.
- The Head determines penalty amounts based on a formula that is found in Part IV of the Canada Labour Code and in the Administrative Monetary Penalties (Canada Labour Code) Regulations. More information on how penalties are calculated is available on the ESDC’s website: Administrative Monetary Penalties - Canada Labour Code, Part IV - IPG-106 - Canada.ca
What happens after I file my application to appeal or the Head refers my request for review to the Board?
- If you filed an application to appeal directly with the Board, the Board will ask the Head of Compliance and Enforcement (the Head) for a copy of their file. Once the Board receives the file, it processes the appeal.
- When the Head refers a request for review to the Board, the Head also sends a copy of their file.
- Once the Board receives the file from the Head, it will send the employer (the applicant) and the Head (the respondent) a letter acknowledging receipt of the application to appeal or the request for review. The employer will also receive a copy of the Head’s file.
- If either of these parties has hired a representative, such as a lawyer, the letter will be sent to the representative. It is the representative’s obligation to keep the person that they represent up to date.
- The letter will:
- include your case file number;
- include a copy of all documents filed by the applicant; and
- tell you when you can file additional information and documents (submissions).
- The letter will also include the name and contact information of the Board’s Industrial Relations Officer (IRO) who will assist the Board and the parties with the application.
- The IRO will answer questions that the parties have and assists the parties to reach a settlement whenever possible.
- The letter will also advise the person or organization that the application is against (the respondent) of:
- how much time they have to file a response to the application; and
- how much time the applicant will have to reply to any new facts and arguments that the respondent raises.
- Normally, the Board gives the respondent 15 calendar days to file a response and the applicant 10 calendar days to file a reply. Sometimes the Board will shorten the deadlines for responding. Make sure you read the letter that you receive from the Board.
- The response should clearly explain the respondent’s version of the facts to the Board. The response should also include any documents that the respondent has which the applicant did not file and which are relevant to the application.
- If you decide not to file a reply, you must write to the Board and tell it that you will not be filing one.
- You do not need to file documents that the other party has already filed.
- The parties are responsible for filing their arguments and documents on time.
- If you need more time to file your submissions, you need to ask the Board to extend the deadline. The Board will want to know why you are late and need more time and will only give you more time if you have a good reason. The Board can refuse to consider any responses or replies that are filed late where an extension has not been given.
Who is involved?
- The employer that filed the application to appeal or the request for review – the applicant.
- The Head of Compliance and Enforcement at the Labour Program of the ESDC – the respondent.
- The applicant and the respondent together are also called the parties to the appeal.
- Industrial Relations Officer (IRO) – for more information on the role of the IRO, click here.
- A decision-maker appointed by the Chairperson to hear and decide the appeal.
Can I be represented by someone else?
- Yes, each party can be represented by the person of their choice.
- The Board does not provide lawyers to assist parties.
- The Industrial Relations Officer working on the file can help parties understand the process and what they need to do to prepare for a hearing, but they are impartial and do not provide legal or strategic advice as a lawyer would.
- The Board recognizes that parties who represent themselves may not know the law or the process and may find it intimidating to appear before the Board. The Board will try to make the process as simple as possible given the nature of the dispute.
- It is important that you attend any case management conferences that the Board organizes. These conferences are often used by the Board to explain the process and what the Board will expect from the parties at a hearing.
How do I file my documents, representations, or evidence?
- All complaints, applications, responses, replies, and supporting documents are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board. It is not necessary to send the Board a paper copy of documents that have been e-filed with the Board.
- Each party must send all other parties a copy of any document that they file with the Board. This can be done by email, by mail, by registered mail, by courier, or by hand.
- When you file documents with the Board, you must tell the Board how and when you sent the documents that you are filing to the other parties.
Is the information in my file confidential?
- Parties who file documents with the Board are participating in a public hearing. This means that the documents that are in the file are available to the public.
- If a party is concerned about some of the information that they are filing with the Board being available to the public, that person can ask the Board to issue a confidentiality order. If the request is granted, the information that is protected will not be publicly available. For more information, you can refer to the Board’s Policy on Openness and Privacy or contact the Industrial Relations Officer responsible for your case.
Will there be Mediation?
- Mediation is part of the Board’s process. It is recommended that parties attempt to mediate their dispute. Many of the Board’s files are settled at the mediation stage. Mediation allows the parties to settle the dispute on their terms and resolves the matter faster than if the file has to go to a Board member for a decision.
- The Industrial Relations Officer assigned to your file will contact you to discuss the mediation options offered at the Board.
- For more information on the mediation process, please click here.
Will there be a hearing?
- Not necessarily. In many cases, the Board can make a decision based on the documents on file, without holding a hearing. This is part of the reason why written submissions should be as complete as possible. This is true even if the parties request a hearing.
- If the Board decides to hold a hearing, it will advise the parties of the date, time, and location of the hearing in advance, usually after holding a Case Management Conference.
- For more information on the Board’s hearing process, please click here.
When will I get the decision?
- The Board will notify you in writing of its decision.
- The time that it takes the Board to issue a decision can vary depending on the complexity of the case.
- All important decisions of the Board are published on the Decisions page.
- You can consult the Board’s performance statistics for more information on the average time it takes the Board to issue a decision after an application is filed.
What can the Board order if the appeal is successful?
If the violation was contested, the Board can either:
- agree with the Head of Compliance and Enforcement (the Head) that a violation occurred; or
- find that there was no violation.
If the Board finds that there was no violation, it can cancel the Notice of Violation and any penalty.
If the amount of the penalty was contested, the Board will decide whether the amount was properly calculated by the Head. If the Head made a mistake in calculating the penalty, the Board can correct it.
If the penalty is payable after the Board’s decision, the Board will tell the employer when and how to pay the amount.
Is the Board’s decision final?
The Board’s decisions are final and can only be reviewed in very specific circumstances.
- If you believe that a Board decision is unreasonable, you can apply to the Federal Court of Appeal for judicial review; or
- If you believe the Board has made a serious error and should correct its original decision, you can file an application for reconsideration.
In both cases, there is a strict 30 calendar day deadline to file your application from the date of the decision.
Follow these links for more information on Applications for Reconsideration and Applications for Judicial Review.