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OHS Administrative Monetary Penalties (AMP)

 

Due to the time and money involved in the prosecution of OHS violations, some jurisdictions now allow OHS regulatory agencies to impose administrative monetary penalties (AMPs) for certain types of offences. AMPs let the government fine violators quickly and promptly respond to violations. The OHS laws in five jurisdictions currently authorize AMPs, but others are considering permitting such penalties. Federal, New Brunswick, Newfoundland/Labrador, Northwest Territories, Nunavut, Ontario, Prince Edward Island, Quebec, Saskatchewan do no currently permit AMPs.

As AMPs for OHS violations are becoming more common, it’s important for safety professionals to understand them. Here are general answers to nine frequently asked questions about these penalties.

Q. What’s the Difference Between an AMP and a Ticket? 

A. Some jurisdictions, such as Alberta, let government officials, such as OHS inspectors or enforcement officers, issue on-the-spot tickets similar to traffic tickets for minor, straightforward OHS offences, such as a worker not wearing a hardhat at a construction site. The fines that can be imposed via ticket are usually much smaller than those that can be imposed as an AMP or pursuant to a prosecution for a safety violation.

Q. To Which Violations Do AMPS Apply? 

A. In general, AMPs can be imposed only for designated OHS violations, although some jurisdictions, such as Nova Scotia, permit them for any violations.

Q. What’s the Standard for Imposing an AMP? 

A. To prevail in a prosecution for a safety offence, the government must prove beyond a reasonable doubt that you violated OHS law and must do so in court. But to impose an AMP, a designated government official must meet a lesser burden. For example, under Yukon’s OHS law, if a safety officer simply believes on “reasonable grounds” that a person has committed a designated offence, then the officer may levy an AMP.

Q. How Are AMPS Imposed? 

A. If a designated government official has met the appropriate standard and opts to impose an AMP, he must give the company or individual written notice that an AMP is being imposed.

Q. Who May Be Issued an AMP? 

A. In general, an AMP may be imposed on any legal “person” that commits a designated violation. That means, both individuals and organizations, such as corporations, employers, contractors, suppliers, site owners, professional engineers, supervisors and workers can be forced to pay an AMP.

Q. How Much Can an AMP Cost? 

A. The maximum amount of an AMP is generally limited under OHS law and is usually much less than the top fines imposed for standard safety prosecutions— but can still be substantial. The penalty can be a one-time fixed amount or an amount for each day the violation continues. There may be different limits too, depending on factors, such as whether the violation was a first or second offence.

Q. Can You Be Issued an AMP and Prosecuted for the Same Violation?

A. Jurisdictions that permit AMPs specifically bar prosecution for the same offence if the person or company has paid an administrative penalty for that violation.

Q. Can You Challenge an AMP? 

A. Most jurisdictions provide some process to challenge or appeal the violation or the amount of the penalty. In fact, the written notice of the AMP must typically explain the appeals process.

Q. Is Due Diligence a Defence to an AMP? 

A. It depends. In BC, the OHS law specifies that an AMP must not be imposed on an employer if the employer can establish due diligence. But the other four jurisdictions don’t specifically address whether a violator can argue due diligence as a defence. But, even if due diligence isn’t a defence to an AMP, your efforts to comply with the law and prevent the underlying violation may be relevant in terms of the amount of the penalty imposed. So, the fact that you tried to comply with the law may weigh in favor of a lesser penalty.

AMPs are very common for violations of environmental law and are becoming more common for safety violations. Thus, the threat of an AMP is just one more reason why your company should ensure it exercises due diligence and takes the necessary steps to prevent safety violations and incidents in the first place.

bongardecor

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