S(29)     An order made by a board of inquiry may be filed with the Registrar of the Supreme Court and is enforceable in the same manner as an order or a judgment of the Trial Division.

 

SYNOPSIS

Section 29 permits a person to file with the Registrar of the Supreme Court an order made by a board of inquiry. The order can be enforced in the same manner as an order or judgment of the Supreme Court.

This section gives a successful party before a board of inquiry the ability to utilize all the enforcement remedies outlined in the Rules of the Supreme Court. Those remedies include the ability to direct the Sheriff’s Office to garnish wages or seize assets of parties who do not voluntarily comply with the board’s order.

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S(30) (1)     A party to a proceeding before a board of inquiry may appeal an order or decision of the board by way of application to the Trial Division.

         (2)     Where the grounds of the appeal consist wholly or partly of a question of fact or of mixed fact and law, an appeal shall not be made without leave of a judge of the Trial Division.

          (3)     An application for leave to appeal made under subsection (2) shall be made by way of originating application, without giving notice to other interested parties, within 30 days of the receipt by the appellant of the order of the board of inquiry.

          (4)     A judge may, after taking into consideration those matters that he or she considers appropriate, grant leave to appeal.

          (5)     An application made under subsection (1) shall be filed with the court within

(a) 30 days of the date leave to appeal was granted, where the appeal is one to which subsection (2) applies; or

(b) 30 days of the date the appellant receives a copy of the order of the board of inquiry, where the appeal is not one to which subsection (2) applies.

        (6)      An application made under subsection (1) shall be served, together with all affidavits in support, on the board of inquiry and each party to the proceeding before the board at least 5 days before the return date and the application shall be returnable not later than 15 days after filing with the court.

        (7)      The court may confirm, reverse or vary the order of the board and may make an order that the board may make under section 28.

      (8)      Commencement of an appeal under this section does not operate as a stay of proceedings of the order of a board of inquiry unless the court orders otherwise.

       9)     The Commission shall provide to a judge on the hearing of an appeal all papers and documents in its possession which may affect the matter being appealed.

 

SYNOPSIS

Section 30 outlines the procedures to be followed when a party to a board of inquiry wishes to appeal a decision or order of the board. Because section 30 outlines strict time limits and utilizes technical legal principles, persons are advised to seek legal advice and representation prior to commencing an appeal. The section distinguishes between appeals which are questions of fact and those which are questions of law or mixed fact and law. Appeals dealing with questions of fact allege that the board of inquiry made a factual error in reaching its decision. Appeals dealing with questions of law or mixed fact and law allege, respectfully, a board of inquiry erred in the interpretation or application of a legal principle or interpreted a fact using a wrong legal principle.

All appeals are to be commenced by way of application to the Trial Division of the Supreme Court. If the appeal raises questions of fact or mixed fact and law, the appellant must seek leave, or permission to start the appeal, from the Trial Division within 30 days of receiving the board’s order.

An appellant has 30 days from receiving leave to appeal in appeals dealing with questions of law, or mixed law and fact, to commence the appeal. In cases of appeals based on questions of law alone the appeal must be commenced within 30 days of receiving the board’s order.

After filing an application for an appeal, the appellant must serve a copy of all documents filed with the Trial Division on all parties to the proceedings and the adjudicator who acted as the board of inquiry at least 5 days before the first date set to hear the appeal and that date shall not be more than 15 days after the appeal was filed.

The Court has broad powers with respect to how it deals with the appeal including all the powers conveyed upon a board of inquiry under section 28.

The start of an appeal does not stay or suspend the effect of an order of a board of inquiry unless a Judge of the Trial Division states otherwise. Therefore a successful party may enforce a board order even if an appeal is started by an opposing party unless that opposing party asks a judge to suspend the order until the appeal is decided. Generally, as a matter of convenience, parties voluntarily agree not to enforce an order until the appeal is concluded.

The Commission, once an appeal is started, must file with the Court all materials in its possession which may effect the appeal.

Rule 58 of the Rules of the Supreme Court states that Rule 57 dealing with appeals to the Court of Appeal applies to appeals to the Trial Division, so the rule should be consulted for guidance in all matters relevant to the conduct of the appeal and not outlined in section 30.

ANNOTATIONS

S(31) (1)     A member of the Commission or a person employed in the administration of this Act shall not be required to give evidence or produce records obtained in the course of an investigation under this Act in a proceeding, except

(a) to a board of inquiry appointed under this Act to deal with a matter to which that information is relevant; or

(b) in an appeal under section 30 of this Act.

        (2)      The minister, the Commission, a member of the Commission, the executive director, a person designated by the executive director to inquire into a complaint or a member of a board of inquiry constituted under this Act is not liable for loss or damage suffered by a person because of anything done or omitted to be done in good faith pursuant to or in the exercise or supposed exercise of the powers conferred by this Act.

 

SYNOPSIS

Section 31(1) provides that Commissioners appointed under section 16 and all persons employed to administer the Code shall not be required to testify or produce evidence in any proceeding except a board of inquiry and an appeal of an order of a board of inquiry.

Section 31(2) provides that the Minister of Justice, the Commission and its members and staff are not liable for any loss or damage suffered by a person because of anything done by them in administering the Code if the actions were done in good faith and within the real or perceived powers as stated in the Code.

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S(32)     The Commission may publish an order of a board of inquiry and the reasons and recommendations of the board of inquiry in whatever manner it considers advisable.

 

SYNOPSIS

The Commission can publish the decision of a board of inquiry in whatever way it considers advisable. Generally, the Commission issues a press release announcing the content of any board decision and advises that copies are available at the Commission office. Summaries of board decisions can be found in the Commission’s annual report and will be included in periodic updates of this annotated Code.

S(33) (1)     A person who

(a) does anything prohibited by or refuses or neglects to do anything required under this Act;

(b) deprives, abridges or attempts to deprive, abridge or restrict a person or class of persons in the enjoyment of a right under this Act;

(c) makes a false statement or answer to a question put to him or her under this Act;

(d) hinders, obstructs, molests or interferes with or attempts to hinder, obstruct, molest or interfere with the Commission, a person acting under the authority of the Commission, the executive director, a board of inquiry or any one else acting under the authority of this Act in the exercise of their duties or powers under this Act; or

(e) fails, refuses or neglects to comply with an order of a board of inquiry or a part of an order,

is guilty of an offence and liable on summary conviction

(f) if a natural person, to a fine not exceeding $100.00; and

(g) if a trade union, employers’ organization, employment agency or a person other than a natural person, to a fine not exceeding $500.00.

        (2)      Where an employer is convicted of an offence under this Act because of his or her having suspended, transferred, laid off or discharged an employee contrary to this Act, a Provincial Court judge may, after consideration has been given by the judge to all circumstances of the case, including wages, salary or remuneration earned with another employer by the employee, in addition to imposing a fine under subsection (1), order the employer

(a) to pay compensation for loss of employment to the employee, not exceeding the sum that in the opinion of the judge is equivalent to the wages, salary or remuneration that would have accrued to the employee up to the date of conviction but for the suspension, transfer or discharge, and the provision of the order shall be enforceable against the employer in the same manner as a judgment of a Provincial Court judge in a civil action; and

(b) to reinstate the employee in his or her employ, at the date that in the opinion of the judge is just and proper under the circumstances, in the position the employee would have held but for the suspension, transfer, layoff or discharge.

        (3)      Where an employer is convicted of an offence under this Act, because of his or her having underpaid an employee contrary to this Act, a Provincial Court judge shall in addition to imposing a fine under subsection (1) order the employer to pay to the employee the outstanding difference between the wages actually paid to the employee and the wages which are in the opinion of the Provincial Court judge payable according to this Act.

        (4)      An order under subsection (3) shall be enforceable against the employer in the same manner as a judgment of the judge in a civil action, but the right of an employee to take another proceeding for recovery of the amount of wages to which he or she is entitled according to this Act is not barred except by satisfaction of that amount and section 737 of the Criminal Code shall not be applied in disposing of a prosecution for an offence referred to in subsection (3).

        (5)      For the purposes of subsection (2) or (3), a Provincial Court judge has jurisdiction to make an order referred to in that subsection, notwithstanding the amount of money involved.

        (6)      A conviction in accordance with subsection (1) does not operate as a bar to further prosecution for the continued contravention or failure to comply in accordance with subsection (1) and, where there is a continuing contravention or failure to comply, each day’s continuance constitutes a separate offence.

 

Section 33(1) outlines what constitutes an offence under the Code and imposes a fine of one hundred dollars in the case of an individual and five hundred dollars for organizations and corporations. The offences include doing things disallowed by the Code or neglecting things which must be done under the Code. As well it is an offence to make a false statement or answer to a question asked by someone administering the Code or to otherwise interfere with the Commission’s investigation or the conduct of a board of inquiry. It is an offence not to comply with an order of a board of inquiry.

Section 33(2) gives a provincial court judge the power, after considering all the relevant circumstances, to reinstate and compensate an employee who has been suspended, transferred, laid off or fired because an employer was found guilty of an offence under the Code.

Where an employer is convicted of an offence under the Code a provincial court judge has the power to reimburse any employees for lost wages if he or she was underpaid by that employer. An order received for lost wages is enforceable as if it were a judgment from a civil action and the employee may seek recovery of the amount in another proceeding if the order is not complied with by the employer. The provincial court judge making an order can do so irrespective of the amount of money to be recovered by the order. Thus, the limits outlined for claims in the Small Claims Court would be suspended for proceedings under this section.

One conviction under this section does not mean that further prosecutions cannot take place if contraventions of the Code occur on subsequent days.

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S(34)     Nothing in this Act restricts the right of an aggrieved person to initiate proceedings or to lay a complaint before a court of summary jurisdiction for an alleged contravention of or failure to comply with this Act, but, if a complaint is laid, then sections 20 to 28 shall not be applied in respect of that complaint.

SYNOPSIS

Section 34 permits an aggrieved party to initiate proceedings in the provincial court for a breach of the Code. If such a proceeding is commenced, sections 20 to 28 shall not apply to the complaint. In essence, the involvement of the Commission is not required and the effect of the six month limitation period in section 20(2) is abridged.

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S(35) (1)     Where a person has been convicted of an offence under this Act, the Commission may apply to a judge of the Trial Division for an order enjoining the person so convicted from continuing the offence.

         (2)     The judge may make whatever order he or she considers appropriate, and the order may be entered and enforced in the same manner as other orders or judgments of the Trial Division.

SYNOPSIS

Section 35 states that the Commission can apply to the Supreme Court for an order prohibiting a person convicted of an offence under the Code from continuing the conduct which gave rise to the offence. The order granting the injunction may be enforced like all other orders or judgments issued by the Supreme Court, Trial Division.

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S(36)     A prosecution for an offence under this Act may be brought against an employers’ organization or a trade union in the name of that organization or trade union, and an act or thing done or omitted by an officer, official or agent of an employers’ organization or trade union within the scope of his or her authority to act on behalf of the employers’ organization or trade union as well as being the personal act or omission of that officer, official or agent.

 

Section 36 states that a prosecution under the Code may be brought against a trade union or employers’ organization if an official of either has breached the provisions of the Code while exercising their authority on behalf of the trade union or employers’ organization. Both the employers’ organization or trade union and the individual representing either body can face prosecution.

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S(37) A proceeding under this Act shall not be considered invalid because of a defect in form or a technical irregularity.

SYNOPSIS

Technical irregularities or defects in form will not render invalid proceeding under the Act.

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S(38) (1)     The Lieutenant-Governor in Council may make regulations

(a) prescribing forms, returns, statements and other documents to be used, made or provided by employers and other persons, the information to be given in those forms, returns, statements and other documents, and by whom and in what language and manner and at what time they shall be made or provided;

(b) prescribing books, accounts and records to be kept and maintained by employees and other persons, the language and manner in which those books, accounts and records are to be kept and prescribing periods of preservation of those books, accounts and records;

(c) prescribing the duties of inspectors, officers and other persons appointed or designated under this Act; and

(d) generally, to give effect to the purpose of this Act.

        (2)      A regulation made under this section may be limited as to time or place or both.

 

Section 38 permits the Lieutenant-Governor in Council to make regulations on a variety of matters dealing with the application of the Code. No such regulations have been passed.

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S(39)     The provisions of The Newfoundland Human Rights Code continue to apply with respect to a complaint made under that Act and not concluded, notwithstanding the coming into force of this Act.