Decision Date: December 3, 2020

Panel: Darrell Le Houillier

Keywords: Mines Act – ss. 36.1(3), 36.6; Administrative Penalties (Mines) Regulation – s. 10; contravention; administrative penalty; preliminary application; jurisdiction; new hearing; evidence

Mountainside Quarries Group Inc. (the “Appellant”) appealed an administrative penalty issued on July 16, 2020, by the Acting Director, Health and Safety Specialists, Ministry of Energy, Mines, and Petroleum Resources (the “Ministry”), who was acting as the Chief Inspector of Mines (the “Chief Inspector”).

In June 2018, a worker employed by the Appellant was found dead at a gravel quarry operated by the Appellant. Based on evidence at the work site, it appeared that the worker died after being struck by a rock that was ejected by a piece of heavy machinery that crushed rock, when he was nearby to refuel the machinery.

After giving the Appellant an opportunity to be heard, the Chief Inspector concluded that the Appellant’s mine manager had failed to meet the requirements in two sections of the Health, Safety and Reclamation Code for Mines, contrary to section 36.1(3) of the Mines Act. Specifically, the Appellant’s mine manager failed to: ensure that the worker was adequately trained to do his job, and had received thorough orientation and basic instruction in safe work practices; and, maintain a record of all training that workers and supervisors have received, and make that record available to an inspector upon request. The Chief Inspector levied an administrative penalty of $47,500 against the Appellant for the two contraventions, pursuant to section 36.6 of the Mines Act.

The Appellant appealed the Chief Inspector’s decision to the Board, arguing that the mine manager had adequately trained the worker to do his job, and the record of training was adequate. The Appellant asked the Board to “quash” the administrative penalty, or alternatively, to reduce the penalty to reflect mitigation factors that the Appellant said should have been considered.
Before the appeal was heard, the Chief Inspector applied to the Board for a preliminary determination that the appeal would be heard based on the record of evidence before the Chief Inspector plus submissions by the parties, rather than the Board holding a new hearing which could involve evidence that was not before the Chief Inspector.

The Board considered its enabling legislation, including the relevant sections of the Mines Act, the Administrative Penalties (Mines) Regulation (the “Regulation”), the Administrative Tribunals Act, and the Environmental Management Act. The Board noted that most of the Acts under which it hears appeals state that it may conduct an appeal “by way of a new hearing”, but the Mines Act and the Regulation are silent in that regard. The Board also noted that its decision-making authority under the Mines Act is more limited than under the Environmental Management Act. Under the Mines Act, the Board may confirm, vary, or rescind the appealed decision. The Board had those same powers under the Health Act, which was also silent on whether the Board could hear appeals as a new hearing. In a case involving an appeal under the Health Act, the BC Supreme Court held that the Board’s powers to confirm, vary or rescind decisions amounted to the “widest possible scope of remedial powers.” Thus, the Board concluded that its decision-making powers under the Mines Act do not suggest that appeal hearings are limited to the record of evidence that was before the Chief Inspector.

In addition, the Board noted some differences in which sections of the Administrative Tribunals Act apply to it with respect to appeals under the Mines Act, compared to appeals under the Environmental Management Act. The Board held that those differences do not indicate a different level of inquiry by the Board in deciding appeals under those Acts.

Moreover, the Board found that section 10 of the Regulation grants the Board a broad range of powers under the Administrative Tribunals Act with respect to hearing appeals under the Mines Act, including the power to: hear submissions from parties on facts, law, and jurisdiction; grant interveners the right to lead evidence or cross-examine witnesses; compel the attendance of witnesses and the production of documents; allow witness testimony and cross-examination for a full and fair disclosure of all matters relevant to the issues in an appeal; and, admit any nonprivileged, relevant, necessary, and appropriate information for the resolution of an appeal. Individually and collectively, those powers imply that the Board may receive new evidence in an appeal under the Mines Act.

For those reasons, the Board denied the Chief Inspector’s application to limit the appeal to the record of evidence that was before him.