Administrative Monetary Penalty Basics

KNOW THE LAWS: Administrative Monetary Penalty Basics

Here’s the basic information on administrative monetary penalties (AMPs) under the OHS laws in each jurisdiction:

1. In this section, “regulated person” means:

a. a contractor;

b. an employer;

c. a prime contractor;

d. a supplier; and

e. a worker [Sec. 40.3(1)].

2. If an officer is of the opinion that a regulated person has:

a. contravened a provision of this Act, the regulations or an adopted code;

b. failed to comply with an order made under this Act, the regulations or an adopted code;

c. failed to comply with a term, condition or requirement of an acceptance issued under section 34; or

d. failed to comply with a term, condition or requirement of an approval issued under an adopted code;

the officer may, by notice in writing given to the regulated person, require the regulated person to pay to the Crown an administrative penalty in the amount set out in the notice [Sec. 40.3(2)].

3. The amount set out in a notice of administrative penalty must not exceed:

a. $10,000; or

b. in the case of a contravention or a failure to comply that continues for more than one day, $10,000 for each day or part of a day on which the contravention or failure to comply occurs or continues [Sec. 40.3(3)].

4. A regulated person who pays an administrative penalty in respect of a contravention or a failure to comply shall not be charged under this Act with an offence in respect of the same contravention or failure to comply that’s described in the notice of administrative penalty [Sec. 40.3(4)].

5. A notice of administrative penalty may be given within two years after the alleged contravention or non-compliance occurs, but not afterwards [Sec. 40.3(5)].

Administrative Penalty (OHS Act) Reg.:

1. A notice of administrative penalty must contain the following information:

a. the name of the regulated person who is required to pay the administrative penalty;

b. an identification of:

i. the provision of the Act, the regulations or the adopted code that was contravened, or

ii. the order or the term or condition of the approval or acceptance that was not complied with, whichever is applicable;

c. a brief description of the nature of the contravention or failure to comply identified above;

d. the amount of the administrative penalty;

e. the date the notice of administrative penalty is issued;

f. the date by which the administrative penalty must be paid; and

g. a statement describing the right to appeal to the Council under Sec. 16 of the Act and particulars of how the appeal is to be made and the time within which it must be made [Sec. 2].

2. Subject to Sec. 40.3(3) of the Act, the amount of an administrative penalty for a contravention or a failure to comply is the amount set in accordance with this section by the officer giving the notice of administrative penalty [Sec. 3(1)].

3. In setting the amount of an administrative penalty for a contravention or a failure to comply, an officer must consider:

a. the seriousness of the contravention or failure to comply; and

b. the risk of harm resulting from the contravention or failure to comply

and may consider any other factor the officer considers relevant [Sec. 3(2)].

1. The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that:

a. the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses;

b. the employer hasn’t complied with this Part, the regulations or an applicable order; or

c. the employer’s workplace or working conditions aren’t safe [Sec. 196(1)].

2. An administrative penalty which is greater than $628,034.57 must not be imposed under this section [Sec. 196(2)].

3. An administrative penalty under this section must not be imposed on an employer if the employer establishes that the employer exercised due diligence to prevent the circumstances described above [Sec. 196(3)].

4. If an employer requests under Sec. 96.2 a review of a decision under Sec. 196(1), the employer must:

a. post a copy of the request for review at the workplace to which the administrative penalty relates;

b. provide a copy of the request for review to the JHSC or worker health and safety representative, as applicable; and

c. if the workers at the workplace to which the administrative penalty relates are represented by a union, provide a copy of the request for review to the union [Sec. 196(4)].

5. If an administrative penalty under this section is imposed on an employer, the employer must not be prosecuted under this Act in respect of the same facts and circumstances upon which the Board based the administrative penalty [Sec. 196(7)].

6. The Board may, by order, impose on an employer an administrative penalty prescribed by a regulation of the Board, which penalty must not be more than $1,000, if the Board is satisfied on a balance of probabilities that the employer has failed to comply with a provision of this Part, or the regulations, as specified by a regulation of the Board [Sec. 196.1(1)].

1. If a person:

a. has failed to comply with:

i. an improvement order within the period specified in the order, or

ii. a prescribed provision of this Act or the regulations, and a safety and health officer is of the opinion that the failure involves, or is likely to involve, an imminent risk of serious physical or health injury to a worker or other person;

b. has failed to maintain compliance with an improvement order after initially complying with it;

c. has resumed an activity that previously was the subject of a stop work order, which was discontinued because the person had complied with it; or

d. was ordered to take action under Sec. 42.1 because the person took discriminatory action against a worker;

the officer shall provide evidence of the matter to the director [Sec. 53.1(1)].

2. When the director determines that a person:

a. has failed to comply with:

i. an improvement order within the period specified in the order, or

ii. a prescribed provision of this Act or the regulations, and the director is of the opinion that the failure involves, or is likely to involve, an imminent risk of serious physical or health injury to a worker or other person;

b. has failed to maintain compliance with an improvement order after initially complying with it;

c. has resumed an activity that previously was the subject of a stop work order but was discontinued because the person had complied with it; or

d. was ordered to take action under Sec. 42.1 because the person took discriminatory action against a worker;

the director may issue a notice in writing requiring the person to pay an administrative penalty in the amount set out in the notice [Sec. 53.1(2)].

3. Notice of an administrative penalty may be issued only after any period for appealing the matter that gave rise to the notice under Sec. 53.1(2) has expired or, if an appeal has been filed, after a decision has been made on appeal [Sec. 53.1(3)].

4. An administrative penalty may not exceed $5,000 [Sec. 53.1(4)].

5. A notice of administrative penalty must set out:

a. the amount of the penalty determined in accordance with the regulations;

b. when and how the penalty must be paid; and

c. a statement that the person may appeal the matter to the board within 14 days after being served with the notice [Sec. 53.1(5)].

6. A person who pays an administrative penalty under this section may not be charged with an offence in respect of the matter that gave rise to the issuance of the notice of administrative penalty unless the matter continues after the penalty is paid [Sec. 53.1(13)].

Administrative Penalty Reg.:

1. A notice of an administrative penalty must be in a form approved by the director and include the following:

a. a description of the order or activity that caused the administrative penalty to be imposed;

b. if the administrative penalty relates to an improvement order, whether a control measure was required;

c. the authority in the Act for imposing the administrative penalty; and

d. whether it’s the person’s first, second, third or subsequent administrative penalty [Sec. 2].

2. Sec. 3(1) specifies the provisions of the Workplace Safety and Health

Regulation that are prescribed for the purpose of Secs. 53.1(1)(a)(ii) and (2)(a)(ii) of the Act.

3. Sec. 3(2) specifies the provisions of the Operation of Mines Regulation that are prescribed for the purpose of Secs. 53.1(1)(a)(ii) and (2)(a)(ii) of the Act.

4. The amount of the administrative penalty is to be determined in accordance with the Schedule [Sec. 4].

1. An officer may impose an administrative penalty on a person who has contravened a provision of the Act or a regulation made under the Act and has been issued an order with respect to the contravention [Sec. 31.2(1)].

2. A notice of administrative penalty must be in writing and must contain all of the following information:

a. the name of the person on whom the administrative penalty is imposed;

b. the provision of the Act or the regulation made under the Act that was contravened;

c. the substance of the contravention;

d. the identifying number assigned to the order and workplace inspection report respecting the contravention;

e. the amount of the administrative penalty;

f. when and how the administrative penalty must be paid; and

g. the process for filing an appeal of the administrative penalty [Sec. 31.4(1)].

3. Further particulars that support the substance of a contravention may be set out in either or both of:

a. an order respecting the contravention; or

b. a workplace inspection report respecting the contravention [Sec. 31.4(2)].

4. The amount of an administrative penalty is as set out in the enclosed table [Sec. 31.5(1)].

5. A person who’s required to pay an administrative penalty for a contravention must not be charged with an offence for the same contravention [Sec. 31.11].

1. If a safety officer believes on reasonable grounds that a person has committed an offence under Secs. 44(1), (2) or (3), then, as an alternative to prosecution for the offence, the officer may levy an administrative penalty against the alleged offender in the following amount:

a. for a first offence, up to $5,000 and, in the case of a continuing offence, to a further penalty of up to $500 for each day or part of a day during which the offence continues after the first day; and

b. for a second offence, up to $10,000 and, in the case of a continuing offence, to a further penalty of up to $1,000 for each day or part of a day during which the offence continues after the first day. [Sec. 45(1)].

2. An alleged offender on whom a safety officer has served a notice of levy of administrative penalty shall not be prosecuted for the offence if:

a. the alleged offender pays the administrative penalty within 21 days of being served with notice of the levy, or within any extended time that the director agrees to;

b. having appealed within the time for doing so and having been required by the board to pay an administrative penalty, the alleged offender pays the administrative penalty within 21 days of the board’s decision, or within any extended time that the director agrees to;

c. the alleged offender appeals the levy within the time for doing so and the board revokes the levy; or

d. the director issues a certificate under Sec. 45(5) [Sec. 45(6)].