No. 21–Administrative Monetary Penalty Appeal (Part IV of the Code)

Information Circular

This Information Circular explains the appeal process related to a notice of violation.

1. Administrative Monetary Penalties and the Canada Labour Code

The Canada Labour Code (the Code) provides various rights to, and imposes various obligations on employees, employers and bargaining agents (unions) in federally regulated workplaces.

The Code is divided into four parts. Part IV of the Code is called “Administrative Monetary Penalties” and establishes an administrative monetary penalty system. Part IV of the Code is to be read with the Administrative Monetary Penalties Regulations (Canada Labour Code) (AMPs Regulations).

1.1 What is an administrative monetary penalty (AMP)?

An administrative monetary penalty (AMP) is a financial penalty that can be imposed for not complying with the law.

The purpose of the Code’s AMP system is to promote compliance with occupational health and safety provisions found in Part II of the Code and its regulations as well as with the labour standards provisions found in Part III of the Code and its regulations.

Every person (individuals or corporations) or department of the Government of Canada that violates or does not comply with

• a provision of the Code or of its regulations
• a direction of the Head of Compliance and Enforcement (the Head)
• an order of the Head or of the Canada Industrial Relations Board (the Board)
• a condition of a permit issued by the Head

designated by the AMPs Regulations commits a violation. If a notice of violation is issued, that person or department is then liable to pay a penalty which is an amount of money. The formula for calculating the amount of the penalty is set out in the AMPs Regulations.

1.2 Who can commit a violation?

A violation can be committed by a person, which includes individuals and corporations, and by a department of the federal public service. Therefore, a violation can be committed by an employer and also by an employee.

When a violation is committed by a corporation or department, certain persons can also be penalized if they played a role in the violation. Those persons include:

• an officer, a director, an agent or mandatary of a corporation;
• a senior official in a department; and
• a person with management or supervisory responsibilities in the corporation or department.

1.3 What is a notice of violation?

A notice of violation is a legal instrument that carries a monetary penalty that is issued by a person designated by the Head when they have reasonable grounds to believe that a person or department has committed a violation.

The notice of violation contains important information such as:

• The name of the person or department that is believed to have committed the violation;
• The relevant facts surrounding the violation; and
• The penalty amount.

The notice of violation also explains the steps that the person or department can take if they disagree with the notice of violation. It also tells them how to make a payment and what will happen if they take no action.

For more information about notices of violation under Part IV of the Code, please contact the Labour Program:

• 1-800-641-4049
• 1-800-465-7735 (for hard-of-hearing persons)
• Administrative monetary penalties

2. Review of a Notice of Violation by the Head

A person or department that receives a notice of violation can ask the Head to review it. Information about how to request a review is included on the notice of violation.

The person or department may request a review of:

• the penalty amount;
• the facts of the violation; or
• both.

The request to review the notice must be filed within 30 days after the day on which the notice is delivered (served) to the person or department. In exceptional circumstances, the Head may accept a request filed beyond 30 days. The request must be in writing and explain the reasons why they disagree with the notice (also called “grounds” for review).

Once the Head receives a request for review, they have two options:

1. they can issue a review decision; or,
2. they can refer the request for review to the Board.

If the Head refers the request for review to the Board, the Board treats the request for review as an appeal.

Important Note: You cannot file an appeal of a notice of violation directly with the Board. You MUST first file a request for review with the Labour Program.

3. Appeal of an Administrative Monetary Penalty

There are two ways in which the Board can receive an appeal of an administrative monetary penalty: by referral by the Head, or by a direct appeal of a review decision.

1. Referral by the Head: As mentioned above, the Head can treat a request for review as an appeal and refer the matter to the Board for a decision. The Board is then considered to have an appeal before it.
2. Direct Appeal Filed with the Board: If the Head decides to consider the matter and issues a review decision, that decision can be appealed to the Board (see section 285(1) of the Code).

3.1 Who may file an application to appeal directly with the Board?

A person or department may file an application to appeal a review decision.

When to file an application

The application to appeal must be filed within 15 days after the day the review decision of the Head was served to the person or department.

The application to appeal must be in writing and must explain the reasons why the person or department does not agree with the review decision (also called the “grounds” for appeal).

The grounds of appeal are limited. A person or department may only ask the Board to decide:

• whether the penalty amount was calculated in accordance with the AMPs Regulations;
• whether the person or department committed the violation; or
• both.

Content of the application

The application to appeal must include the reasons for the appeal (also called a statement of the grounds of appeal).

An Administrative Monetary Penalty Appeal Form is available online or at one of the Board’s offices.

How to file an application to appeal with the Board

Use of this form is recommended because it asks for the information that the Board needs to make a decision on the application to appeal. Not using this form may cause delays in the appeal process.

The application to appeal may be submitted electronically through the Board’s e-Filing Web Portal. If the application is filed electronically using the Portal, there is no need to send a hard copy of the same documents to the Board. The electronic version will be considered the original copy.

The application to appeal may also be delivered in person or sent by courier or mail to one of the Board’s offices.

The application to appeal is filed on the date that the Board receives it. However, if the application to appeal is sent by registered mail, the filing date is the date the application was mailed to the Board (section 8 of the Canada Industrial Relations Board Regulations, 2012 (the Regulations)).

3.2 The Appeal Process is Public

The information provided and any documents submitted to the Board are collected solely for the purpose of making a decision.

You should be aware that an appeal is a public process. Documents filed with the Board will be placed in its file and Board files are available on demand to the public.

Confidentiality

However, documents for which the Board has issued a confidentiality order are not available to the public. If your appeal contains sensitive information, you may request a Confidentiality Order from the Board. See Information Circular No.12–Policy on Openness and Privacy.

The Board’s decisions are also public. Many of the Board’s decisions are posted on its website. The Board tries not to include unnecessary personal information in its decisions however, decisions may identify parties and witnesses by name and include information about them that is relevant to the decision.

3.3 What happens after the administrative monetary penalty appeal is received by the Board?

Once the Board receives an application to appeal, it takes certain steps.

Referral by the Head

When the Board receives a referral from the Head, the Board also receives copies of any documents that the Head relied on when they issued the notice of violation being appealed.

Direct Appeal Filed with the Board

When the Board receives an application to appeal directly, it provides a copy of the application to the Head, and asks the Head for a copy of any documents that the Head relied on when they issued the decision being appealed.

Appeal Package

Once the Board receives the documents from the Head, it processes the application to appeal.

The Board then sends a letter to the applicant (the person or department that filed the application to appeal or the request for review) and to the Head, who is the respondent to the application. The applicant and respondent are the parties to the appeal.

The letter acknowledges receipt of the application to appeal or referral and encloses a copy of the documents that the Board received from the Head. The acknowledgement letter and the documents from the Head are called the appeal package.

The letter also gives the parties the name and contact information of the Board Industrial Relations Officer (IRO) appointed to assist with the appeal. The IRO is responsible for managing the file and assisting the parties including in helping them reach a settlement. For more information on the role of the IRO, please consult the Board’s Information Circular No. 1–The Role of the Board’s Industrial Relations Officers.

Shortly after sending the Board’s acknowledgment letter, the IRO will contact the applicant and respondent to explain the Board’s processes, answer any questions that they might have and discuss any issues that could arise during the conduct of the appeal.

Filing of Further Documents or Submissions in Turn

The applicant has 15 days from when they receive the appeal package to file more submissions. This means that the applicant will have the chance to read the documents from the Head and provide more information to the Board regarding the reasons for seeking an appeal, if they wish to do so.

The Head has 15 days from when they receive the appeal package and any additional information filed by the applicant to file their own submissions and respond to the applicant’s submissions. The Head’s submissions are called a response. The Head will provide a copy of any submissions or documents that they file with the Board to each party.

Finally, the applicant has 10 days to reply to any submissions made by the Head. The applicant will provide a copy of any documents or submissions to each party.

The Board may refuse to consider any documents or submissions it receives after the prescribed time limit.

Extension of Time Limits

If a party needs more time to file their submissions, the party must make a request to the Board. The party seeking an extension should contact the other parties and obtain their agreement before contacting the Board.

Exchange of Documents

Each party is required to deliver to the other party or parties a copy of any response, reply or other document that they file with the Board (section 23 of the Regulations). The party must also advise the Board in writing of when and how these documents were delivered. This is called “service”.

The manner of service between parties includes fax, courier or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the appeal.

Request for Documents

If a party wishes to obtain documents that are relevant to the appeal but that it does not have, it may ask another party who has them to provide a copy of the documents. The request must be in writing.

If that request fails, the party can ask the Board to order the documents to be disclosed (section 21(1) of the Regulations).

Mediation Meeting

If the parties are interested in mediating all or certain aspects of the appeal, the IRO will communicate with them to arrange a mediation meeting. This mediation meeting is voluntary and the information shared with the IRO in the mediation process is strictly confidential and is not shared with the Board’s decision-maker.

Oral Hearing

Once the written submissions are completed, the appeal will be referred to the Board’s decision-maker to issue a decision. The appeal may be decided by a Vice-Chairperson of the Board or an external adjudicator appointed by the Chairperson of the Board.

The Board may decide the appeal without holding an oral hearing (section 16.1 of the Code). In that case, the Board decides the appeal with the written submission of the parties. This is why it is important for the applicant and respondent to include all of the information that they think is relevant in their written submissions.

However, the applicant or the respondent may request an oral hearing to the Board. Any request for an oral hearing must include the reasons for the request (section 10(g) of the Regulations). The Board will then decide if an oral hearing is necessary or not.

If the Board decides to hold an oral hearing, it will inform the parties of the date and place of the hearing. Parties may still settle any or all aspects of the matter even if a hearing has been scheduled.

Please consult Information Circular No. 4–Board Hearings for more information about the hearing process, prehearing conferences, and requests for adjournments or postponements of hearings.

4. Decision of the Board

The Board will notify the applicant in writing of its decision, with reasons. This means that the Board will explain how and why it reached the decision it reached. A copy of the Board’s decision will also be provided to the Head.

4.1 What can the Board decide?

The Board may decide whether the amount of the penalty for the violation was determined in accordance with the AMPs Regulations. If the Board decides that it was not, it will correct the amount.

The Board may also decide whether the applicant committed the violation. If the Board determines that they did, the applicant remains liable for the penalty set out in the decision. If the Board determines that they did not, the applicant will not be liable for the penalty.

If the Board determines that an AMP must be paid, it will indicate the time within which the payment must be made. It will also indicate how and to whom the payment must be made.