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AR 207/2017 ADMINISTRATIVE PENALTIES REGULATION

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aLBERTA REGULATION 207/2017

Safety Codes Act

ADMINISTRATIVE PENALTIES REGULATION

Table of Contents

                1      Definitions

Part 1
Administrative Penalties

                2      Information

                3      Notice of administrative penalty

                4      Service

Part 2
Appeals

                5      Interpretation

                6      Appeal board

                7      Notice of appeal

                8      Refusal to hear

                9      Evidence

              10      Decisions and directions

              11      Publication


              12      Judicial review

Part 3
General

              13      Consequential amendment

              14      Expiry

              15      Coming into force

Definitions

1   In this Regulation,

                               (a)    “Act” means the Safety Codes Act;

                              (b)    “appeal board” means the New Home Buyer Protection Board designated in section 6(1), and includes a panel;

                               (c)    “permit issuer” has the meaning given to it in Permit Regulation (AR 204/2007).

Part 1
Administrative Penalties

Information

2   For the purposes of the administration of administrative penalties, an Administrator

                               (a)    may access and use information that the Administrator considers to be necessary from the information system referred to in section 58 of the Act,

                              (b)    may request and use information that the Administrator considers to be necessary from

                                        (i)    a permit issuer or safety codes officer,

                                      (ii)    an accredited municipality,

                                     (iii)    an accredited corporation,

                                     (iv)    an accredited agency,

                                       (v)    an accredited regional service commission, and

                                     (vi)    the Alberta Safety Codes Authority,

                               (c)    may place entries relating to administrative penalties and appeals of administrative penalties, including personal information that the Administrator considers to be necessary, on the relevant information systems referred to in section 58 of the Act, and

                              (d)    shall preserve confidentiality with respect to personal information, as defined in the Freedom of Information and Protection of Privacy Act, that comes to the Administrator’s attention under this Act and shall not disclose or communicate that information except as authorized by the Act.

Notice of administrative penalty

3   For the purposes of section 57.1(4)(g) of the Act, a notice of administrative penalty must advise the person subject to the administrative penalty that the imposition or the amount of the administrative penalty may be appealed

                               (a)    within 30 days after the date on which the notice was served, and

                              (b)    by filing with the appeal board a notice of appeal that complies with section 7.

Service

4(1)  A notice of administrative penalty must be served

                               (a)    in the case of an individual,

                                        (i)    by personal service,

                                      (ii)    by leaving it for the individual with a person apparently at least 18 years of age at the individual’s current or most usual dwelling place,

                                     (iii)    by sending it by registered mail to the individual’s last known address, or

                                     (iv)    by sending it by facsimile or other form of electronic transmission to the individual’s last known facsimile number or electronic address,

                                  and

                              (b)    in the case of a corporation,

                                        (i)    by leaving it with a director, manager or officer of the corporation, or the president, chairperson or other head officer, by whatever name that person is known, of the corporation,

                                      (ii)    by leaving it at the corporation’s registered office,

                                     (iii)    by sending it by registered mail to the corporation’s registered office,

                                     (iv)    in the case of an extra‑provincial corporation, by leaving it with, at the address of, or by sending it by registered mail to the address of

                                              (A)    the corporation’s attorney for service appointed as required by the Business Corporations Act, or

                                              (B)    the corporation’s principal place of business in Alberta,

                                           or

                                       (v)    by sending it by facsimile or other form of electronic transmission to the corporation’s last known facsimile number or electronic address.

(2)  Service by registered mail is not invalid by reason only that

                               (a)    the addressee refuses to accept the mail,

                              (b)    the addressee returns the mail,

                               (c)    the addressee refuses to take delivery, or

                              (d)    the addressee no longer resides or is otherwise not present at the address and has not provided the postal service with a current mailing address.

(3)  An Administrator may apply to the appeal board for direction regarding the service of a notice of administrative penalty, including service in a manner or to a location not set out in this section.

(4)  The service referred to in this section is presumed to be effected on the date indicated in this subsection, unless the contrary is proved:

                               (a)    in the case of a notice of administrative penalty sent by registered mail, on the date of delivery;

                              (b)    in the case of a notice of administrative penalty sent by facsimile machine or e‑mail, on the date the facsimile or e‑mail was sent as confirmed by a record of successfully completed transmission;

                               (c)    in any other case, on the date when the Administrator complies fully with the directions of the appeal board regarding the service.

Part 2
Appeals

Interpretation

5(1)  In this Part,

                               (a)    “appeal” means the appeal of an administrative penalty referred to in section 57.3 of the Act;

                              (b)    “appeal board regulation” means the New Home Buyer Protection (Ministerial) Regulation (AR 220/2013).

(2)  Terms used in this Part but not defined, have the meaning given in the appeal board regulation.

(3)  For greater certainty, a reference to the “issuing authority” in Part 2 of the appeal board regulation as it applies for the purposes of this Part, shall be read as a reference to “the Administrator who issued the administrative penalty that is subject to appeal”.

Appeal board

6(1)  For the purposes of section 57.3 of the Act, the New Home Buyer Protection Board established under the New Home Buyer Protection (Ministerial) Regulation (AR 220/2013) is designated, and shall be referred to in this Regulation as the “appeal board”.

(2)  An appeal under this section is a new trial of the issues that resulted in the administrative penalty being appealed.

(3)  Except as provided in this Part, for the purposes of an appeal,

                               (a)    all the powers, duties and functions of the appeal board, its chair, members and panels as set out in the appeal board regulation apply;

                              (b)    Part 2 of the appeal board regulation, except sections 7(2) and (4), 8, 9, 11, 12 and 30 to 32, applies, with such modifications as the circumstances require;

                               (c)    sections 20, 20.1, 20.2 and 21.1 of the New Home Buyer Protection Act apply.

(4)  No action or other proceedings for damage lies or shall be instituted against the Crown or its employees or officers, a permit issuer, the appeal board, a member of the appeal board or an employee or person engaged by the appeal board for anything done or omitted to be done by any of them in good faith while exercising their powers and performing their duties under Part 5.1 of the Act or this Part.

Notice of appeal

7(1)  A notice of appeal referred to in section 57.3 of the Act must be filed within 30 days after the date on which the notice of administrative penalty was served, in the form approved by the chair, and set out in writing

                               (a)    the appellant’s name, municipal address and contact information, including an e‑mail address,

                              (b)    a copy of the decision, order or administrative penalty being appealed,

                               (c)    the date the decision, order or notice of administrative penalty was received by the appellant,

                              (d)    any information contained in or on the decision, order or notice of administrative penalty that the appellant believes to be incorrect, and

                               (e)    a brief description of the reasons for the appeal.

(2)  A notice of appeal is deemed to be filed

                               (a)    when it is received

                                        (i)    at an e‑mail address specified by the chair, or

                                      (ii)    at the address specified by the chair,

                                  and

                              (b)    when the filing fee referred to in subsection (3) has been received.

(3)  The filing fee for an appeal or for an application to intervene must be received by the appeal board within 7 days after the filing of the notice of appeal.

(4)  A filing fee may be refunded to the person who paid the fee if

                               (a)    the appeal board decides in favour of the person, or

                              (b)    the Court decides in favour of the person in a subsequent action.

Refusal to hear

8   The appeal board has no jurisdiction and shall refuse to hear an appeal, or any part of an appeal, that is based on the following reasons:

                               (a)    that the Act, a regulation or a code or standard adopted under the Act is invalid;

                              (b)    that the Administrator who issued the administrative penalty was improperly appointed;

                               (c)    that any other person or body involved in the administration of the Act or this Regulation was improperly appointed or designated;

                              (d)    that the Administrator lacks the authority necessary to issue administrative penalties.

Evidence

9(1)  The following evidence may be submitted to the appeal board by an Administrator, and is admissible without the attendance or affidavit of the permit issuer:

                               (a)    copies of a permit issued by a permit issuer;

                              (b)    copies or summaries of information provided by any person to the permit issuer;

                               (c)    evidence indicating whether or not a permit was issued by the permit issuer.

(2)  In the absence of proof to the contrary, the evidence referred to in subsection (1) shall constitute proof of the issuance of a permit and of the content contained in the copies or summaries submitted by the Administrator, as applicable.

Decisions and directions

10   The appeal board may

                               (a)    dismiss the appeal,

                              (b)    vary the notice of administrative penalty, including

                                        (i)    the particulars of the contravention or failure to comply referred to in section 57.1(4)(b) of the Act,

                                      (ii)    the Administrator’s finding under section 57.1(4)(c) of the Act, or

                                     (iii)    the amount of the administrative penalty imposed,

                                  or

                               (c)    allow the appeal and give the directions, if any, that the appeal board considers appropriate in the circumstances.

Publication

11   The appeal board may publish its decisions, orders and reasons in any manner that the chair considers appropriate.

Judicial review

12(1)  A decision of the appeal board under this Part is final and conclusive, subject to the right to judicial review set out in this section.

(2)  A decision of the appeal board may be judicially reviewed by the Court of Queen’s Bench in accordance with the Alberta Rules of Court (AR 124/2010) and this section.

(3)  An originating application for judicial review must be filed with the Court and, not more than 60 days from the date when the appeal board’s decision was issued, must be served in accordance with the Alberta Rules of Court (AR 124/2010) on

                               (a)    the appeal board, and

                              (b)    every person or body directly affected by the application.

(4)  If an applicant for judicial review makes a written request to the appeal board for materials for the purposes of the application, the appeal board must provide the materials requested within 14 days from the date on which the written request is served.

(5)  Within 30 days from the date that an application for judicial review is served, the appeal board must forward to the clerk of the Court of Queen’s Bench the certified record of proceedings prepared in accordance with Part 3 of the Alberta Rules of Court (AR 124/2010).

(6)  Unless otherwise ordered by the Court of Queen’s Bench, documents excluded by the appeal board from the public record of a hearing shall remain excluded from the public record on judicial review.

Part 3
General

Consequential amendment

13(1)  This section amends the Permit Regulation (AR 204/2007).

(2)  The following is added after section 26(f):

                               (g)    an administrative penalty has been issued, to the person who submitted the permit application, and was not paid within 30 days, if

                                        (i)    no appeal was filed under section 57.3 of the Act, or

                                      (ii)    an appeal was filed under section 57.3 of the Act and the penalty was upheld in whole or in part.

Expiry

14   For the purpose of ensuring that this Regulation is reviewed for ongoing relevancy and necessity, with the option that it may be repassed in its present or an amended form following a review, this Regulation expires on December 1, 2021.

Coming into force

15   This Regulation comes into force on December 1, 2017.