Administrative Monetary Penalties (Canada Labour Code) Regulations (SOR/2020-260)

Definition

Marginal note:Definition of Act

1 In these Regulations, Act means the Canada Labour Code.

Violations

Marginal note:Designations

2 The following are designated as violations that may be proceeded with in accordance with Part IV of the Act:

• (a) the contravention of any provision of Part II of the Act, or of any Regulations made under that Part, that is specified in column 1 of Part 1 or 2 of Schedule 1;

• (b) the contravention of any provision of Part III of the Act, or of any Regulations made under that Part, that is specified in column 1 of Part 1 or 2 of Schedule 2;

• (c) the contravention of any direction issued under any provision of Part II of the Act that is specified in column 1 of Part 3 of Schedule 1;

• (d) the contravention of any order made under any provision of Part II of the Act that is specified in column 1 of Part 4 of Schedule 1;

• (e) the contravention of any order made or issued under any provision of Part III of the Act that is specified in column 1 of Part 3 of Schedule 2; and

• (f) the failure to comply with any condition of a permit issued under section 176 of the Act, as specified in column 1 of Part 4 of Schedule 2.

Marginal note:Types of violations

3 A violation related to any provision specified in column 1 of a Part of Schedule 1 or 2 is classified as a Type A, B, C, D or E violation as specified in column 2 of the respective schedule.

Penalties

Marginal note:Amount

4 The amount of the penalty for each violation is the sum of the baseline penalty amount determined under section 5 and the history of non-compliance amount, if any, determined under section 6.

Marginal note:Baseline penalty amount

5 The baseline penalty amount for a violation is the amount set out in column 3 of Part 2 of Schedule 3 that corresponds to the category of the person or department that is believed to have committed the violation and the type of violation the person or department is believed to have committed, as set out in columns 1 and 2, respectively, of that Part.

Marginal note:History of non-compliance amount

• 6 (1) If the person or department that is believed to have committed the violation has a history of non-compliance, the history of non-compliance amount is equal to twice the baseline penalty amount determined under section 5.

• Marginal note:History of non-compliance

  (2) A person or department has a history of non-compliance if, in the five years preceding the day on which the notice of violation is issued, the person or department

  • (a) was issued a notice of violation for a violation that was of the same type or of a type of a greater gravity and the person or department was ultimately considered, under section 289 or 290 of the Act, to have committed the violation or there was a final determination, under section 284 or 287 of the Act, that the person or department committed the violation;

  • (b) was found guilty of an offence; or

  • (c) was subject to an order made under section 153 of the Act.

• Marginal note:Idem

  (3) For the purposes of subsection (2),

  • (a) the gravity of violation types increases in alphabetical order; and

  • (b) a violation, offence or order is taken into account only if it relates to the same Part of the Act – or any regulation made under the same Part – as the violation set out in the notice of violation.

Payment

Marginal note:Early payment

• 7 (1) A person or department named in a notice of violation for a Type A, B or C violation may pay an amount equal to one half of the penalty, in complete satisfaction of the penalty, within 20 days after the day on which the notice is served.

• Marginal note:Date of payment

  (2) Payment is deemed to be made

  • (a) if the payment is sent by regular mail, on the day indicated on the postmark stamped on the envelope or, if no postmark is legible, on the day on which the payment is received by the Department of Employment and Social Development;

  • (b) if the payment is sent by registered mail or courier, on the day indicated on the receipt issued by the post office or the courier or, in the absence of a receipt, on the day on which the payment is received by the Department of Employment and Social Development; or

  • (c) if the payment is made electronically, on the day indicated by the electronic system used by the Department of Employment and Social Development for the purpose of receiving electronic payments.

Service

Marginal note:Manner of service

• 8 (1) Subject to subsection (2), a notice of violation issued under subsection 276(1) of the Act is to be served

  • (a) in the case of an individual,

    • (i) by leaving a copy of it with the individual at any place or with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence,

    • (ii) by sending a copy of it by registered mail or courier to the individual’s last known address, usual place of residence, place of business or workplace, or

    • (iii) by sending a copy of it by fax or other electronic means to the individual; and

  • (b) in the case of any other person or a department,

    • (i) by leaving a copy of it with the person’s or department’s authorized representative or with an officer or other individual who appears to direct or control the head office or place of business of the person or department or the authorized representative,

    • (ii) by sending a copy of it by registered mail or courier to the person’s or department’s authorized representative or to the head office or place of business of the person or department or the authorized representative, or

    • (iii) by sending a copy of it by fax or other electronic means to an individual referred to in subparagraph (i).

• Marginal note:Substitutional service

  (2) If a person or department cannot reasonably be served by any method listed in subsection (1), the person or department may be served by leaving a copy of the notice of violation at the person’s or department’s last known address or place of business or, in the case of an individual, at the individual’s usual place of residence or workplace.

• Marginal note:Proof of service

  (3) Service may be proved by

  • (a) an acknowledgement of service signed by or on behalf of the person or department served, specifying the date and location of service;

  • (b) a certificate of service signed by the person who effected the service, stating that service was made on the person or department named in the certificate and indicating the means by which and day on which service was effected; or

  • (c) a record of electronic transmission setting out the date and time of transmission.

• Marginal note:Date service effective

  (4) Service is deemed to have been effected

  • (a) in the case of service by registered mail or courier and in the absence of an acknowledgement of service or a certificate of service, on the seventh day after the day on which the notice is sent, as indicated on the receipt issued by the post office or the courier; or

  • (b) in the case of service by fax or other electronic means, despite sections 2 and 3 of the Electronic Documents and Electronic Information Regulations, on the day on which it is sent, as indicated on the record of electronic transmission.

Request for Review

Marginal note:Manner

9 A request for review made under section 281 of the Act must be in writing and must contain a statement of the grounds of review.

Regular Rate of Wages

Marginal note:Calculation and determination

• 10 (1) For the purpose of section 288 of the Act, the regular rate of wages of an employee who is paid on a basis other than an hourly rate of wages is calculated or determined in accordance with this section.

• Marginal note:General

  (2) Subject to subsections (4) to (6), if the employee worked for at least one hour during the four-week period preceding a week in which the employee attends the appeal proceeding in response to a summons by the Board, the employee’s regular rate of wages for that week is calculated by dividing the wages that the employee earned in that period by the hours that they worked during the same period, excluding overtime hours.

• Marginal note:Alternative four-week period

  (3) Subject to subsections (4) to (6), if the employee did not work for at least one hour in the period referred to in subsection (2) but did work for at least one hour in the preceding four-week period, their regular rate of wages is calculated using the formula set out in subsection (2) but in respect of the preceding four-week period.

• Marginal note:Employee paid on commission basis

  (4) Subject to subsections (5) and (6), if the employee’s wages are paid, in whole or in part, on a commission basis and the employee has completed at least 12 weeks of continuous employment for their employer, the employee’s regular rate of wages for the week in which the employee attends the appeal proceeding in response to a summons by the Board is calculated by dividing the amount of wages that they earned in the 12-week period preceding that week by the number of hours that the employee worked during that period, excluding overtime hours.

• Marginal note:Collective agreement

  (5) Subject to subsection (6), if a collective agreement that is binding on the employee and employer sets out a regular rate of wages that is applicable to the employee, or a method for calculating it, that rate, or the rate calculated following that method, is the employee’s regular rate of wages.

• Marginal note:Minimum wage

  (6) In the following circumstances, an employee’s regular rate of wages is the minimum wage rate referred to in Part III of the Act:

  • (a) the employee’s regular rate of wages cannot be calculated or determined in accordance with any of subsections (2) to (5), because the employer is not required, under paragraph 24(2)(d) of the Canada Labour Standards Regulations, to keep records of hours worked by the employee each day and the employer cannot otherwise determine the number of hours that the employee worked during the applicable period; or

  • (b) the employee’s regular rate of wages, as calculated or determined in accordance with any of subsections (2) to (5), is less than that minimum wage rate.

• Marginal note:Excluded amounts

  (7) For the purposes of subsections (2) to (4), vacation pay, general holiday pay, personal leave pay, pay for leave for victims of family violence, bereavement leave pay, overtime pay and pay received under section 146.5, subsection 205(2) or 251.12(5) or section 288 of the Act are not taken into account in the calculation of wages earned.

• Marginal note:Definition of week

  (8) For the purposes of this section, week means the period between midnight on Saturday and midnight on the immediately following Saturday.

Publication

Marginal note:Other information

11 The following information is prescribed for the purposes of section 295 of the Act:

• (a) the city, town or other locality and the province in which the employer is located;

• (b) in the case of a violation related to the contravention of an order or a direction, information about the circumstances that gave rise to the making or issuance of the order or the issuance of the direction, as the case may be;

• (c) whether the employer has complied with the provision, order or direction that gave rise to the violation and, if applicable, the date of that compliance;

• (d) whether the employer has paid the penalty and, if applicable, the date when the payment was made;

• (e) if applicable, the date of the review decision; and

• (f) if applicable, the date of the appeal decision.

Transitional Provision

Marginal note:Type A violations

12 Designations, under section 2, of contraventions and failures as violations that are classified, under section 3, as Type A violations are not effective until the first anniversary of the day on which these Regulations come into force.

Coming into Force

Marginal note:S.C. 2017, c. 20

Footnote ^*13 These Regulations come into force on the day on which section 377 of the Budget Implementation Act, 2017, No. 1 comes into force, but if they are registered after that day, they come into force on the day on which they are registered.

• Return to footnote ^*[Note: Regulations in force January 1, 2021, see SI/2020-74.]