For the first time in Alberta, companies and individuals (including workers) could face a monetary penalty for breaches of the Occupational Health and Safety Act (the Act), the Occupational Health and Safety Regulation (the Regulation) or the Occupational Health and Safety Code (the Code) “ without first being prosecuted.
As of October 1, 2013, changes to Alberta's legislation will allow an Occupational Health and Safety Officer (OHS Officer) to issue administrative penalties to contractors, employers, prime contractors, suppliers and workers (Regulated Persons) for contraventions of the Act, the Regulation, or the Code. OHS Officers will now have the power to issue administrative penalties if, in the OHS Officer's opinion, a Regulated Person has committed any of the following:
- a Contravention of the Act, the Regulation or the Code (Contravention); or
- a Failure to Comply with the following:
- an order made under the Act, the Regulation or the Code;
- a term, condition or requirement of an acceptance issued under section 34 of the Act; or
- a term, condition or requirement of an approval issued under the Code.
Size of Penalty: An administrative penalty cannot exceed $10,000.00, unless there is a continuing Contravention or Failure to Comply. If the Contravention or Failure to Comply continues for more than one day, the administrative penalty can be up to $10,000.00 for each day or part of a day during which the Contravention or Failure to Comply occurs or continues.
Time to issue an administrative penalty: The deadline for serving a Regulated Person with written notice that sets out the amount of the administrative penalty is 2 years from the date of the alleged offence. The Regulated Person must be given at least 30 days to pay after being served with the written notice.
Factors that can determine the amount of the administrative penalty: The OHS Officer must consider both the seriousness of the Contravention or Failure to Comply, as well as the risk of harm resulting from the Contravention or Failure to Comply. The OHS Officer also has discretion to consider any other factors that the OHS Officer considers relevant.
Appeals: Administrative penalties can be appealed to the Occupational Health and Safety Council (the Council). From the Council, a person can appeal to the Court of Queen's Bench on a question of law or a question of jurisdiction.
Although the offence provisions in the Act will continue to apply, meaning that prosecutions can still take place, if the Regulated 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 is described in the notice of administrative penalty.
In addition to the forthcoming administrative penalties, on January 1, 2014, tickets may be issued for up to $500.00 to both companies and individuals for certain contraventions of the Regulation and the Code, due to amendments to the Provincial Offences Procedure Regulation. It is especially important to note that employers whose workers are required to wear Personal Protective Equipment or use certain equipment under the Act can be fined for a contravention of those requirements: there will be a $500 penalty for contravention of section 12(2) of the Regulation. Section 12(2) of the Regulation requires employers to ensure that workers use or wear whatever equipment they are required to use or wear under the Act.