PART IIIStandard Hours, Wages, Vacations and Holidays (continued)
DIVISION XVIAdministration and General (continued)
Application of Provincial Laws
Marginal note:Provincial Crown corporations
265 The Governor in Council may by regulation direct that this Part applies in respect of any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation that is, or is part of, a corporation that is an agent of Her Majesty in right of a province and whose activities are regulated, in whole or in part, pursuant to the Nuclear Safety and Control Act.
- 1996, c. 12, s. 4
- 1997, c. 9, s. 125
Marginal note:Exclusion from application
266 (1) The Governor in Council may by regulation exclude, in whole or in part, from the application of any of the provisions of this Part any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation whose activities are regulated, in whole or in part, pursuant to the Nuclear Safety and Control Act.
(2) On the recommendation of the Minister, the Governor in Council may make regulations relating to labour standards in relation to employment that is subject to a regulation made pursuant to subsection (1).
- 1996, c. 12, s. 4
- 1997, c. 9, s. 125
Marginal note:Application of certain provisions
267 Subsections 121.2(3) to (8) apply, with such modifications as the circumstances require, in respect of a regulation made pursuant to subsection 266(2) except that the references to “subsection (2)” in subsections 121.2(3) to (6) shall be read as references to subsection 266(2).
- 1996, c. 12, s. 4
PART IVAdministrative Monetary Penalties
Interpretation and Application
268 (1) The following definitions apply in this Part.
department means a department in, or other portion of, the federal public administration to which Part II applies, as provided under subsection 123(2). (ministère)
(a) in respect of a violation related to Part II, the same meaning as in subsection 122(1); and
(b) in respect of a violation related to Part III, the same meaning as in section 166. (employeur)
penalty means an administrative monetary penalty imposed under this Part for a violation. (pénalité)
Marginal note:Application — department
(2) This Part applies to a department and to persons employed in a department only in respect of a violation that is related to Part II.
Marginal note:Purpose of Part
269 The purpose of this Part is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient penalty system to promote compliance with Parts II and III of this Act.
270 (1) The Governor in Council may make regulations
(a) designating as a violation that may be proceeded with in accordance with this Part
(i) the contravention of any specified provision of Part II or III or of any regulations made under those Parts,
(ii) the contravention of any direction, or of any direction of any specified class of directions, issued under any provision of Part II or of any regulations made under that Part,
(iii) the contravention of any order, or of any order of any specified class of orders, made or issued under any provision of Part II or III or of any regulations made under those Parts, or
(iv) the failure to comply with any condition, or with any condition of any specified class of conditions, of a permit issued under section 176;
(b) respecting the determination of, or the method of determining, the amount payable as the penalty for each violation, penalties which may be different for individuals and for other persons and departments;
(c) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be reduced;
(d) respecting the determination of a lesser amount than the penalty imposed that may be paid in complete satisfaction of the penalty if paid within the time and manner prescribed by regulation;
(e) respecting the service of documents required or authorized under this Part, including the manner and proof of service and the circumstances under which documents are deemed to be served;
(f) prescribing the method of calculating and determining the regular rate of wages for the purpose of section 288;
(g) prescribing anything that by this Part is to be prescribed; and
(h) generally, for carrying out the purposes and provisions of this Part.
Marginal note:Restriction — amount of penalty
(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation may not exceed $250,000.
Marginal note:Powers regarding notices of violation
271 The Head may
(a) establish the form of notices of violation;
(b) designate persons, or classes of persons, who are authorized to issue notices of violation; and
(c) establish a short-form description for each violation to be used in notices of violation.
272 Subject to any terms and conditions specified by the Minister, the Head may delegate to any qualified person or class of persons any of the powers the Head is authorized to exercise or any of the duties or functions the Head is authorized to perform for the purposes of this Part. The Head may make the delegation subject to any terms and conditions that the Head considers appropriate.
Commission of Violations
273 Every person or department that contravenes or fails to comply with a provision, direction, order or condition designated by regulations made under paragraph 270(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
Marginal note:Liability of parties to violation
274 If a corporation or a department commits a violation, any of the following persons who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation or department has been proceeded against in accordance with this Part:
(a) any officer, director, agent or mandatary of the corporation;
(b) any senior official in the department; or
(c) any other person exercising managerial or supervisory functions in the corporation or department.
Marginal note:Proof of violation — employees
275 In any proceedings under this Part against a person or a department in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person or of the department, whether or not the employee or agent or mandatary has been identified or proceeded against in accordance with this Part.
Marginal note:Notice of violation
276 (1) If a person designated under paragraph 271(b) has reasonable grounds to believe that a person or a department has committed a violation, the designated person may issue a notice of violation and shall cause it to be served on the person or on the department in accordance with the regulations.
(2) The notice of violation shall
(a) name the person or department that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the penalty for the violation;
(d) inform the person or department of their right to contest the facts of the alleged violation or the penalty, by way of review and appeal, and of the procedure to be followed to exercise that right;
(e) inform the person or department of the manner of paying the penalty set out in the notice; and
(f) inform the person or department that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable for the penalty set out in the notice.
Marginal note:Copy given by employer
(3) If the notice of violation is issued to an employer who has committed a violation by contravening a provision of Part II or a direction issued under that Part, the employer shall, without delay, give a copy of the notice to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).
Rules About Violations
Marginal note:Certain defences not available
277 (1) A person or department named in a notice of violation does not have a defence by reason that the person or the department
(a) exercised due diligence to prevent the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person or the department.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under Part II or III applies in respect of a violation to the extent that it is not inconsistent with this Part.
Marginal note:Continuing violation
278 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Marginal note:Violation or offence
279 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under Part II or III, and proceeding with it as an offence under Part II or III precludes proceeding with it as a violation under this Part.
Marginal note:For greater certainty
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Limitation period
280 No notice of violation in respect of a violation may be issued more than two years after the day on which the subject-matter of the violation arises.
Marginal note:Request for review
281 A person or a department that is served with a notice of violation may, within 30 days after the day on which the notice is served, or within any longer period that the Head allows, make a request, in the manner prescribed by regulation, to the Head for a review of the penalty or the facts of the alleged violation, or both.
Marginal note:Variation or cancellation of notice of violation
282 At any time before a request for review in respect of a notice of violation comes before the Head, a person designated under paragraph 271(b) may cancel the notice of violation or correct an error in it.
283 (1) On receipt of a request for review made under section 281, the Head shall conduct the review of the notice of violation.
Marginal note:Rules of procedure
(2) The Head may make rules governing the procedure with respect to reviews under this Part.
Marginal note:Request treated as an appeal
(3) The Head may, if the Head considers it appropriate in the circumstances, treat the request for review as an appeal, in which case the Head shall so inform the applicant and refer the request for review to the Board, and the Board shall be considered to have an appeal before it for the purposes of this Part.
Marginal note:Object of review
284 (1) The Head shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the applicant committed the violation, or both.
Marginal note:Correction of penalty
(2) If the Head determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Head shall correct the amount of the penalty.
(3) The Head shall make a decision in writing and serve the applicant with a copy of the decision, with reasons.
Marginal note:Copy given by employer
(4) If a decision is made with respect to a notice of violation referred to in subsection 276(3), the employer shall, without delay, give a copy of the decision to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).
Marginal note:Obligation to pay
(5) If the Head determines that the applicant committed the violation, the applicant is liable for the penalty that is set out in the decision.
Marginal note:Decision final
(6) Subject to the right of appeal under section 285, every decision made under this section is final and shall not be questioned or reviewed in any court.
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