Canada–Newfoundland and Labrador Atlantic Accord Implementation Act (S.C. 1987, c. 3)

Offences and Penalties

Marginal note: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).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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 measures 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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Duration and renewal of appointments

  (7) Members are to be appointed for a term of not more than five years and may be reappointed.

• Marginal note: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

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.