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Occupational Health and Safety Appeal Panel Regulations
made under clauses 82(1)(ao) and (ap) of the
Occupational Health and Safety Act
S.N.S. 1996, c. 7
O.I.C. 97-135 (February 25, 1997), N.S. Reg. 25/97
as amended by O.I.C. 2010-84 (February 23, 2010), N.S. Reg. 38/2010
1 These regulations may be cited as the Occupational Health and Safety Appeal Panel Regulations.
2 In these regulations,
(a) “administrative penalty appeal” means an appeal under Section 11 of the Occupational Health and Safety Administrative Penalty Regulations made under the Act;
Clause 2(a) added: O.I.C. 2010-84, N.S. Reg. 38/2010.
(aa) “aggrieved person” means an employer, constructor, contractor, employee, self-employed person, owner, supplier, provider of an occupational health or safety service, architect, engineer or union at a workplace who is directly affected by an order or decision;
Clause 2(a) relettered (aa): O.I.C. 2010-84, N.S. Reg. 38/2010.
(b) “appeal office” means the appeal panel office established for the purposes of the Occupational Health and Safety Act by the Minister of Labour and Advanced Education to provide administrative support necessary to establish a functional appeal panel;
Clause 2(b) amended: O.I.C. 2010-84, N.S. Reg. 38/2010.
(c) “selected chair” or “selected member” means a person proposed by the appeal office for designation by the Minister to a panel to hear a particular appeal;
(d) “Minister” includes, for greater certainty, the Deputy Minister or Acting Minister of Labour and Advanced Education;
Clause 2(d) amended: O.I.C. 2010-84, N.S. Reg. 38/2010.
(e) “party” means,
(i) a person who is required to comply with the order or decision being appealed,
(ii) the Director,
(iii) in the case of an appeal of an order made as a result of a complaint pursuant to clause 46(1)(a) or (b) of the Act, the employee named in the order,
(iv) those aggrieved persons who, at least two days before the scheduled time of an appeal hearing, advise the appeal office and other parties in written form of their intent to present evidence or make representations at the appeal hearing, and
(v) those aggrieved persons who, having failed to advise the appeal office and other parties, in written form, at least two days before the scheduled time of an appeal hearing, of their intent to present evidence or make representations at the appeal hearing, at the commencement of the hearing satisfy the appeal panel that they did not have a reasonable opportunity to provide two days’ notice, and that they have given as much notice to the other parties as was possible in the circumstances; and
(f) “written form” includes an electronic transmission which is received by the recipient in a readable form.[Note: the references in clauses (b) and (d) to the Minister, Deputy Minister and Acting Minister have been updated in accordance with Order in Council 2011-15 under the Public Service Act, R.S.N.S. 1989, c. 376, effective January 11, 2011.]
Submitting notice of appeal
3 A notice of appeal required to be filed with the Deputy Minister under subsection 67A(1) or 69(1) of the Act, or to initiate an administrative penalty appeal must be submitted to the appeal office.
Section 3 replaced: O.I.C. 2010-84, N.S. Reg. 38/2010.
Information required for notice of appeal
3A (1) In addition to the information required by subsection 69(3) of the Act, a notice of appeal filed under subsection 67A(2) or 69(2) of the Act must be in written form and shall include all of the following information for the person appealing:
(c) telephone number.
(2) A notice of appeal for an administrative penalty appeal must be in written form and shall include all of the following information:
(a) the following information for the person appealing:
(iii) telephone number;
(b) a copy of the notice of administrative penalty appealed from;
(c) the grounds of the appeal;
(d) the relief requested.
Section 3A added: O.I.C. 2010-84, N.S. Reg. 38/2010.
Request to suspend order pending an appeal
4 (1) An aggrieved person may initiate a request to suspend the operation of an order or decision in accordance with subsection 69(9) of the Act by specifying in a notice of appeal that this remedy is requested.
Subsection 4(1) amended: O.I.C. 2010-84, N.S. Reg. 38/2010.
(2) Where a selected chair is satisfied that circumstances warrant, the selected chair may determine that, after an appeal panel is appointed, it will deal with a request for relief pursuant to subsection 69(9) of the Act by
(a) distribution of the request among the parties and solicitation of comment;
(c) personal attendance of the parties with the appeal panel; or
(d) by some combination of these processes or by other fair and effective means.
Application of Sections 5 to 10
4B[A] Sections 5 to 10 do not apply to an administrative penalty appeal.
B[A] added: O.I.C. 2010-84, N.S. Reg. 38/2010.
Selection of appeal panel
5 (1) To establish the appeal panel for a specific matter, the appeal office, using the selection process set out in these regulations, shall identify to the Minister the selected chair and members for designation by the Minister as the appeal panel to hear that matter.
(2) Where, in accordance with subsection 68(5) of the Act, the parties to the appeal agree that one person may hear the appeal, this agreement shall
(a) be made in a written form;
(b) indicate the name of that person, where the parties have agreed on the choice of the person from the list of persons appointed by the Governor in Council pursuant to subsection 68(2) of the Act, and
the appeal office shall provide that information to the Minister to enable a designation of a single person as the appeal panel for that matter.
Scheduling of hearing
6 (1) The selected chair, with the assistance of the appeal office, shall schedule the hearing, attempting to minimize the impact on the parties of scheduling conflicts, but not so as to allow long delays due to the failure of all parties to endorse an immediate date as convenient.
(2) The appeal office shall communicate the date and location of the hearing as instructed by the selected chair.
Selection of chair
7 The appeal office shall, taking into account
(a) rotation of caseload among the available chairpersons;
(b) earliest availability; and
(c) whether any chairperson resides closer to the region in which the hearing will be held,
identify a selected chair from the list of persons established pursuant to subsections 68(2) and (4) of the Act for the purpose of chairing an appeal panel.
Selection of additional members
8 After the date or dates for the hearing are established by the selected chair pursuant to Section 6, the appeal office shall, taking into account
(a) rotation of caseload among the available members, while seeking, where possible, members who are familiar with the type of workplace to which the matter relates, insofar as the result will not create a perception of bias due to
(i) the member’s employer or union being involved in the situation, or
(ii) the nature of any close personal or economic relationship between a member and another person in the situation;
(b) availability for the hearing scheduled; and
(c) proximity to the region where the hearing will occur;
identify two selected members for an appeal panel, one representing employers and one representing employees, from the list of persons established pursuant to subsection 68(2) of the Act, for the purpose of clauses 68(4)(a) and (b) of the Act.
Designation of the appeal panel
9 The appeal office will inform the Minister of the availability of the selected members, and prepare an appointment letter for consideration by the Minister, and the Minister shall designate an appeal panel to hear the matter.
10 Except where the parties to an appeal agree, in accordance with subsection 68(5) of the Act, that one person may hear the appeal, three panel members of an appeal panel constitute a quorum and a decision of any two panel members is the decision of the appeal panel.
11 (3) Each party who submits any exhibit or other document to an appeal panel shall ensure that a sufficient number of copies of the item are produced so that one is given to each member of the appeal panel, as well as to each party, and the chairperson shall be provided with an additional copy
Subsections 11(1) and (2) repealed: O.I.C. 2010-84, N.S. Reg. 38/2010.
12 (1) Except where the appeal panel instructs otherwise, the appellant shall be the first party to present a case in the hearing.
(2) For greater certainty, an appeal panel may receive any evidence or information on oath, affidavit or otherwise as, in its discretion, it deems fit and proper, whether or not it is admissible as evidence in a court of law.
(3) All hearings are open to the public except where intimate financial or personal matters, trade secrets or other matters may be disclosed and the appeal panel finds that the interests of any person affected, or the public interest, in avoiding disclosure outweighs the principle that hearings should be public.
(4) Recording equipment or cameras are not permitted in the hearing room except with the express permission of the appeal panel.
Record of hearing
13 (1) The chair of an appeal panel shall assist the appeal office in maintaining a record of the decision-making process for possible future submission to the court in response to an application for judicial review, and the record shall consist of
(a) the decision of the panel;
(b) all documents submitted to the panel; and
(c) all documents produced by the panel or the appeal office.
(2) For greater certainty, notes made personally by any member of an appeal panel in the hearing or in related preparation or deliberations are not part of the record of the matter for the purpose of subsection (1).
(3) When they are no longer required to be retained for the purposes of a potential judicial review, property, including documents, filed as exhibits in a hearing may be returned by the appeal office to the source which provided the item to the panel.
14 No proceedings before an appeal panel are invalid by reason of any defect in form or any technical irregularity.
Form 1 repealed: O.I.C. 2010-84, N.S. Reg. 38/2010.