Written By Jennifer A. Miller Q.C., Tari M. Hiebert and Tatum J. R. Woywitka
Starting on December 1, any person or entity subject to the Alberta's Safety Codes Act (Act), could face an administrative penalty for any breach of the Act, its numerous regulations, or its adopted codes or standards.
The addition of administrative penalties is a material change to the Act, similar to the amendments made to Alberta's Occupational Health and Safety Act in October 2013.
Currently, offences under the Act may be punished with significant fines, but only following a successful prosecution in which the accused has been found guilty of the offence. This new administrative penalty framework will lower the threshold at which financial penalties could be incurred. Administrative penalties can be imposed when an administrator "is of the opinion" that a "person" (a term that includes individuals, corporations, partnerships and Indian bands) has:
- contravened a provision of the Act, the associated regulations, or a code or standard adopted under the Act for which an administrative penalty may be imposed; or
- failed to comply with an order, or contravened an order, made under the Act if the order was prescribed as one for which an administrative penalty may be imposed.
How Much Does an Administrative Penalty Cost?
The administrative penalty may be a single amount or an amount charged for each day or part of a day on which the contravention or failure to comply continues. The daily penalty may be a maximum of $10,000. The maximum cumulative amount of an administrative penalty is $100,000.
How Long Does the Administrator Have to Serve Notice of the Administrative Penalty?
The deadline for serving notice of the administrative penalty is within three years from the date on which the contravention or failure to comply is alleged to have occurred. The notice must be served on the person alleged to have committed the offence. There are various methods of acceptable service, so businesses should educate their staff members who monitor incoming mail, including electronic mail and facsimile, on these methods of service.
Payment and Appeals of Administrative Penalties
Except as otherwise provided for in the Act, the person subject to the notice must pay the amount of the penalty within 30 days after being served with the notice. Subject to any right of appeal, if the person does not pay the administrative penalty within the required period, the administrator may file a copy of the notice with the clerk of the Court of Queen's Bench, and it can be enforced as a judgment of the Court. Although the offence provisions in the Act will continue to apply, meaning that prosecutions can still take place, if the person pays the administrative penalty, that person cannot then be charged with an offence in respect of the same contravention or failure to comply that was described in the notice of the administrative penalty.
Administrative penalties can be appealed within 30 days after service of the notice. The appeal must be filed in a "form approved by the chair". This "form" is not yet available online.
The appeal will be a new trial of the issues that gave rise to the administrative penalty. There are some restrictions on the right to appeal. In addition, an appeal decision is final and conclusive, and subject only to judicial review by the Court of Queen's Bench.
The provisions of this Act are frequently overlooked and underestimated. It applies to fire protection, barrier-free design and the design, manufacture, construction, installation, use, operation, occupancy and maintenance of: buildings, electrical systems, elevating devices, passenger ropeways and amusement rides, gas systems, plumbing systems, pressure equipment, and private sewage disposal systems. It also requires extensive incident reporting and investigation. The introduction of administrative penalties further increases the need for businesses, including owners, vendors, designers, manufacturers, and contractors, to better understand their obligations under the Act to avoid the risk of inadvertent contravention.