Occupational Health and Safety Act

45(1)

The Labour Relations Board under the Labour Relations Code is the appeal body for the purpose of this Act.

45(2)

A person

(a) to whom an order is issued under section 38, 39 or 40 or in relation to whom an order is varied by a Director under section 41,

(b) who is given a notice of administrative penalty under section 44 or in relation to whom an administrative penalty is varied by a Director under section 41,

(c) whose licence is cancelled or suspended,

(d) who has received a record under section 17(15),

(e) who has received a report under section 19(2), or

(f) who has received an order under section 19(8),

may appeal the order, administrative penalty, cancellation or suspension, the findings in the record referred to in clause (d), the findings in the report referred to in clause (e) or the order referred to in clause (f) to the appeal body.

45(3)

An appeal under subsection (2) must be commenced by serving a notice of the appeal on the appeal body within 30 days of being served or given notice of the order, administrative penalty, cancellation or suspension, record or report.

45(4)

The Minister is deemed to be a party to the proceeding for the purpose of an appeal under this section and has the same rights with respect to an appeal as any other party to the proceeding.

45(5)

After considering the matter being appealed, the appeal body may by order

(a) in the case of an appeal of an order referred to in subsection (2)(a), confirm, revoke or vary the order, or

(i) with respect to an order issued by an officer under section 38, 39 or 40, remit the order back to the officer for reconsideration, and

(ii) with respect to an order varied by a Director under section 41, remit the order back to the Director or officer for reconsideration,

(b) in the case of an appeal of an administrative penalty, confirm, revoke or vary the administrative penalty, or

(i) with respect to an administrative penalty imposed by an officer under section 44, remit the matter back to the officer for reconsideration, and

(ii) with respect to an administrative penalty varied by a Director under section 41, remit the matter back to the Director or officer for reconsideration,

(c) in the case of an appeal of the cancellation or suspension of a licence,

(i) confirm the cancellation or suspension,

(ii) reinstate the cancelled licence,

(iii) substitute a suspension for the cancellation,

(iv) remove or vary the suspension,

(v) add conditions to the licence, or

(vi) remit the matter back to the Director for reconsideration,

(d) in the case of an appeal of findings in a record under section 17(15), confirm, revoke or vary the officer’s findings, or remit the matter back to the officer for reconsideration,

(e) in the case of an appeal of findings in a report under section 19(2), confirm, revoke or vary the officer’s findings, or remit the matter back to the officer for reconsideration,

(f) in the case of an appeal of an order issued under section 19(8), confirm, revoke or vary the order, or remit the matter back to the officer for reconsideration, or

(g) reject the matter summarily where the appeal body is of the opinion that the matter is without merit, or is frivolous, trivial, vexatious, filed with improper motives or otherwise an abuse of process.

45(6)

When an appeal is commenced under subsection (2), the appeal body shall hear the appeal and make an order as soon as practicable.

45(7)

When an appeal is commenced under subsection (2)(a), (c), (d) or (e), the commencement of that appeal does not operate as a stay of the order, cancellation or suspension, or findings being appealed except insofar as the chair or a vice‑chair of the appeal body so directs.

45(8)

When an appeal from an administrative penalty is commenced under subsection (2)(b), the commencement of that appeal operates to stay the administrative penalty until the appeal body renders its decision on the appeal or the appeal is withdrawn.

45(9)

If any order made by the appeal body is not complied with, the appeal body may file a copy of the order with the clerk of the Court of Queen’s Bench and, on being filed, the order is enforceable as a judgment or order of the Court.

45(10)

If any person conducts himself or herself in a manner that may be in contempt of the appeal body or its proceedings, the appeal body may apply to the Court of Queen’s Bench for an order directing compliance with the appeal body’s order or restraining any conduct found by the Court to be in contempt of the appeal body or its proceedings.

45(11)

The appeal body shall publish information about proceedings and orders of the appeal body issued under this Act.

46(1)

The Lieutenant Governor in Council may, in accordance with section 8(5) of the Labour Relations Code, establish a Division for the purpose of hearing appeals under this Act.

46(2)

The chair of the appeal body may establish from the members of the Division, or where there is no Division, from the members of the appeal body, a panel of 3 or more members to hear an appeal under this Act and that panel may exercise the powers, duties and functions of the appeal body.

46(3)

A quorum of the panel is the chair or a vice‑chair presiding over the appeal and 2 other members.

46(4)

Notwithstanding subsections (2) and (3), the chair may authorize the chair or a vice‑chair to sit alone to hear an appeal under this Act and the chair or vice‑chair may exercise the powers, duties and functions of the appeal body.

46(5)

A panel of the appeal body or the chair or vice‑chair where the chair or vice‑chair is sitting alone under subsection (4) is deemed to be the appeal body for the purposes of this Act.

46(6)

Where a panel of the appeal body is hearing an appeal and one or more members of the panel do not for any reason attend on any day or part of a day, the remaining members present may, if they constitute a quorum under this section, exercise the powers and functions of the appeal body with respect to that hearing.

46(7)

Notwithstanding subsection (3), in the event of the death or incapacity of the person who is presiding over an appeal in which the evidence and argument have been heard,

(a) the remaining members may decide the matter, if at least one of the remaining members is the chair or the vice‑chair and there are at least 2 other members hearing the appeal, or

(b) if clause (a) does not apply, the remaining members, if unanimous in their decision, may decide the matter.

46(8)

An order of a majority of the members of a panel of the appeal body present and constituting a quorum is the order of the appeal body and in the event that there is a tie vote, the chair or the presiding vice-chair, as the case may be, may cast a 2nd vote.

46(9)

The appeal body may establish rules of procedure respecting the hearing of appeals under this Act.

46(10)

For the purpose of hearing appeals under this Act, the appeal body has the same power as is vested in the Court of Queen’s Bench for the trial of civil actions

(a) to summon and enforce the attendance of witnesses,

(b) to compel witnesses to give evidence under oath or otherwise,

(c) to compel witnesses to give evidence in person or otherwise, and

(d) to compel witnesses to produce any record, object or thing that relates to the matter being heard.

46(11)

The appeal body has exclusive jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or order of the appeal body on them is final and conclusive for all purposes, but the appeal body may, at any time, reconsider any order made by it and vary, revoke or affirm the order.

46(12)

Subject to subsection (13), no order of the appeal body shall be questioned or reviewed in any court by application for judicial review or otherwise, and no order shall be made or process entered into or proceedings taken in any court, whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the appeal body or any of its proceedings.

46(13)

An order of the appeal body may be questioned or reviewed by way of an application for judicial review seeking an order in the nature of certiorari or mandamus if the application is filed with the Court of Queen’s Bench and served on the appeal body no later than 30 days after the date of the order.