Fairness at the Pumps Act (S.C. 2011, c. 3)
Full Document:
Assented to 2011-03-23
Fairness at the Pumps Act
S.C. 2011, c. 3
Assented to 2011-03-23
An Act to amend the Electricity and Gas Inspection Act and the Weights and Measures Act
SUMMARY
This enactment provides for the imposition of administrative monetary penalties for contraventions to the Electricity and Gas Inspection Act and the Weights and Measures Act. It also provides for higher maximum fines for offences committed under each of those Acts and creates new offence provisions for repeat offenders.
The enactment also amends the Weights and Measures Act to require that traders cause any device that they use in trade or have in their possession for trade to be examined within the periods prescribed by regulation. That new requirement is to be enforced through a new offence provision. The enactment also provides the Minister of Industry with the authority to designate persons who are not employed in the federal public administration as inspectors to perform certain examinations.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
SHORT TITLE
Marginal note:Short title
1. This Act may be cited as the Fairness at the Pumps Act.
R.S., c. E-4ELECTRICITY AND GAS INSPECTION ACT
2. The long title of the Electricity and Gas Inspection Act is replaced by the following:
3. The definition “meter” in subsection 2(1) of the Act is replaced by the following:
“meter”
« compteur »
“meter” means an electricity or gas meter and includes any apparatus used for the purpose of making measurements of, or obtaining the basis of a charge for, electricity or gas supplied to a purchaser;
4. Subsection 16(1) of the Act is replaced by the following:
Marginal note:Owner’s liability
16. (1) The owner of each verified meter that is in use shall keep it in good repair and is responsible for causing it to be dealt with in accordance with the requirements of this Act and the regulations, and, subject to those requirements, the owner is liable to pay any fees chargeable for dealing with the meter in accordance with those requirements.
Marginal note:R.S., c. 31 (1st Supp.), s. 7
5. (1) Subsection 26(3) of the Act is replaced by the following:
Marginal note:Designation to perform inspector’s functions
(3) Despite anything in this Act, except as provided in subsections (5) and (5.1), any functions that pertain to an inspector’s office may be performed by any person who is designated as an inspector by the Minister for the purpose of the performance of those functions.
(2) Section 26 of the Act is amended by adding the following after subsection (5):
Marginal note:Other restrictions
(5.1) A person designated as an inspector under subsection (3) is not authorized to exercise the powers set out in subsection 29.12(1).
6. The Act is amended by adding the following after section 29:
ADMINISTRATIVE MONETARY PENALTIES
Powers of the Governor in Council
Marginal note:Regulations
29.1 The Governor in Council may make regulations
(a) designating any provision of this Act — other than paragraphs 30(b) to (e) and subsection 32(1) — or of the regulations as a provision whose contravention may be proceeded with as a violation in accordance with sections 29.11 to 29.29;
(b) establishing a penalty, or a range of penalties, in respect of each violation;
(c) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;
(d) classifying each violation as a minor violation, a serious violation or a very serious violation;
(e) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be increased or reduced in whole or in part; and
(f) respecting a lesser amount that may be paid as complete satisfaction of a penalty if it is paid within the prescribed time and in the prescribed manner, including the circumstances in which the lesser amount may be set out in a notice of violation.
Violations
Marginal note:Commission of violation
29.11 (1) Every person who contravenes a provision designated under paragraph 29.1(a) commits a violation and is liable to a penalty established in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of a penalty is to promote compliance with this Act and not to punish.
Marginal note:Maximum penalty
(3) The maximum penalty for a violation is $2,000.
Proceedings
Marginal note:Notice of violation
29.12 (1) An inspector may issue a notice of violation and cause it to be provided to a person if the inspector has reasonable grounds to believe that the person has committed a violation.
Marginal note:Contents of notice
(2) The notice of violation must
(a) name the person believed to have committed the violation;
(b) identify the acts or omissions that constitute the alleged violation;
(c) set out the penalty for the violation that the person is liable to pay;
(d) set out the particulars concerning the time and manner of payment; and
(e) subject to the regulations, set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are set out in the notice.
Marginal note:Summary of rights
(3) A notice of violation must clearly summarize, in plain language, the rights and obligations under this section and sections 29.13 to 29.26 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.
Marginal note:Short-form descriptions
(4) The Minister may establish a short-form description of each violation to be used in notices of violation.
Penalties
Marginal note:Effect of payment
29.13 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are set out in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice,
(a) they are deemed to have committed the violation to which the amount paid relates;
(b) the Minister shall accept the amount as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 29.12 are ended.
Marginal note:Alternatives to payment
(2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are set out in the notice,
(a) request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the provision to which the violation relates, if the penalty is $1,000 or more; or
(b) request a review by the Minister of the acts or omissions that constitute the alleged violation or the amount of the penalty.
Marginal note:Deeming
(3) If the person who is named in the notice does not pay the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise any right referred to in subsection (2) within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice.
Compliance Agreements
Marginal note:Compliance agreements
29.14 (1) After considering a request made under paragraph 29.13(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on any conditions that are satisfactory to the Minister, which conditions may
(a) include a provision for the giving of reasonable security, in a form and in an amount that are satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; and
(b) provide for the reduction, in whole or in part, of the amount of the penalty for the violation.
Marginal note:Deeming
(2) A person who enters into a compliance agreement with the Minister is, on doing so, deemed to have committed the violation to which the compliance agreement relates, and the proceedings commenced in respect of the violation under section 29.12 are ended.
Marginal note:If compliance agreement complied with
(3) If the Minister is of the opinion that a person who has entered into a compliance agreement has complied with it, the Minister shall cause the person to be provided with a notice to that effect, at which time any security given by the person under that agreement shall be returned to the person.
Marginal note:If compliance agreement not complied with
(4) If the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with it, the Minister shall cause the person to be provided with a notice of default to the effect that
(a) instead of the penalty set out in the compliance agreement, the person is liable to pay, within the prescribed time and in the prescribed manner that are set out in the notice of default, twice the amount of the penalty set out in the notice of violation and, for greater certainty, subsection 29.11(3) does not apply in respect of that amount; or
(b) the security, if any, given by the person under the compliance agreement is forfeited to Her Majesty in right of Canada.
Marginal note:Effect of notice of default
(5) Once they have been provided with the notice of default, the person shall pay the amount set out in it or, if the notice provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada.
Marginal note:Effect of payment
(6) If the person pays the amount set out in a notice of default under paragraph (4)(a) within the prescribed time and in the prescribed manner that are set out in the notice,
(a) the Minister shall accept the amount as complete satisfaction of the amount owing; and
(b) the compliance agreement entered into under subsection (2) terminates.
Marginal note:Refusal to enter into compliance agreement
29.15 (1) If the Minister refuses to enter into a compliance agreement after considering a request made under paragraph 29.13(2)(a), the Minister shall cause the person to be provided with a notice to that effect and the person who is named in the notice is liable to pay the amount of the penalty within the prescribed time and in the prescribed manner that are set out in the notice.
Marginal note:Effect of payment
(2) If the person pays the amount within the prescribed time and in the prescribed manner that are set out in the notice
(a) they are deemed to have committed the violation to which the amount paid relates;
(b) the Minister shall accept the amount as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 29.12 are ended.
Marginal note:Deeming
(3) If the person does not pay the amount within the prescribed time and in the prescribed manner that are set out in the notice, they are deemed to have committed the violation.
Review by the Minister
Marginal note:Review — violation
29.16 (1) After completing a review requested under paragraph 29.13(2)(b) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Minister shall determine whether the person who is named in the notice committed the violation and, if the Minister determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Minister shall correct that amount and cause the person to be provided with a notice of the Minister’s decision.
Marginal note:Review — penalty
(2) After completing a review requested under paragraph 29.13(2)(b) with respect to the amount of the penalty set out in the notice of violation, the Minister shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Minister determines that it was not, the Minister shall correct that amount and cause the person to be provided with a notice of the Minister’s decision.
Marginal note:Payment
(3) The person who is provided with a notice of the Minister’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are set out in the notice.
Marginal note:Effect of payment
(4) If the person pays the amount of the penalty that is set out in the notice of the Minister’s decision within the prescribed time and in the prescribed manner that are set out in the notice,
(a) the Minister shall accept the amount as complete satisfaction of the penalty; and
(b) the proceedings commenced in respect of the violation under section 29.12 are ended.
Marginal note:Submissions in writing
(5) The Minister is to consider only written evidence and written submissions in determining whether a person committed a violation or whether the amount of a penalty was established in accordance with the regulations.
Recovery of Debts
Marginal note:Debts to Her Majesty
29.17 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:
(a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to enter into a compliance agreement with the Minister or to have the Minister review the acts or omissions that constitute the violation or the amount of the penalty;
(b) every amount set out in a compliance agreement entered into with the Minister under subsection 29.14(1), beginning on the day specified in that agreement or, if no day is specified, beginning on the day on which the agreement is entered into;
(c) the amount set out in a notice of default referred to in subsection 29.14(4), beginning on the day specified in the notice;
(d) the amount of a penalty set out in the Minister’s notice under subsection 29.15(1) or in the notice of the Minister’s decision made under subsection 29.16(1) or (2), beginning on the day specified in the notice; and
(e) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (d).
Marginal note:Limitation period or prescription
(2) No proceedings to recover such a debt may be commenced later than five years after the debt becomes payable.
Marginal note:Debt final
(3) The debt is final and may not be reviewed, restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 29.13 to 29.16.
Marginal note:Certificate of default
29.18 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 29.17(1).
Marginal note:Effect of registration
(2) Registration in the Federal Court of the certificate has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
Rules of Law About Violations
Marginal note:Violations not offences
29.19 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Marginal note:Due diligence defence
29.2 (1) A person may not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Marginal note:Burden of proof
29.21 In every case where the Minister is to determine whether a person who is named in a notice of violation committed any violation identified in it, the Minister shall do so on a balance of probabilities.
Marginal note:Offences by corporate officers, etc.
29.22 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors, agents or mandataries who directs, authorizes, assents to or acquiesces or participates in the commission of the violation is a party to and liable for the violation, whether or not the person who actually committed it is proceeded against in accordance with this Act.
Marginal note:Vicarious liability — acts of employees, agents and mandataries
29.23 A person is liable for a violation that is committed by their employee, agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent’s or mandatary’s authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Marginal note:Continuing violation
29.24 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
Other Provisions
Marginal note:Evidence
29.25 In any proceeding for a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Limitation period or prescription
29.26 No proceedings in respect of a violation may be commenced later than six months after the day on which an inspector becomes aware of the acts or omissions that constitute the alleged violation.
Marginal note:Certification by Minister
29.27 A document appearing to have been issued by the Minister and certifying the day on which the acts or omissions that constitute the alleged violation became known to an inspector is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the inspector became aware of the acts or omissions on that day.
Marginal note:Information may be made public
29.28 The Minister may make public
(a) the name and business address of a person who enters into a compliance agreement, the nature of the compliance agreement — including the acts or omissions and provisions at issue, the conditions included in the compliance agreement and the amount payable under it, if any; or
(b) the name and business address of a person who is deemed to have committed a violation or who the Minister determined committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.
Marginal note:How act or omission may be proceeded with
29.29 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
7. Section 32 of the Act is replaced by the following:
Marginal note:Stealing stamp or seal
32. (1) Every person who steals any stamp, seal, label, tag or marker issued for the stamping, sealing, labelling, tagging or marking of a meter under this Act is guilty of an offence.
Marginal note:Punishment — first offence
(2) Every person who is guilty of an offence under subsection (1) is liable, for a first offence,
(a) on summary conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding six months, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years.
Marginal note:Punishment — subsequent offences
(3) Every person who is guilty of an offence under subsection (1) is liable, for a second or subsequent offence,
(a) on summary conviction, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding six months, or to both; or
(b) on conviction on indictment, to imprisonment for a term not exceeding two years.
8. (1) The portion of section 33 of the Act before paragraph (a) is replaced by the following:
Marginal note:Other offences
33. Every person is guilty of an offence who
(2) The portion of section 33 of the Act after paragraph (k) is repealed.
(3) Section 33 of the Act is renumbered as subsection 33(1) and is amended by adding the following:
Marginal note:Punishment — first offence
(2) Every person who is guilty of an offence under subsection (1) is liable, for a first offence,
(a) on summary conviction, to a fine not exceeding $10,000; or
(b) on conviction on indictment, to a fine not exceeding $25,000.
Marginal note:Punishment — subsequent offences
(3) Every person who is guilty of an offence under subsection (1) is liable, for a second or subsequent offence,
(a) on summary conviction, to a fine not exceeding $20,000; or
(b) on conviction on indictment, to a fine not exceeding $50,000.
9. Section 34 of the Act is replaced by the following:
Marginal note:Punishment — general offence
34. Every person who contravenes any provision of this Act or the regulations for the contravention of which no liability for a punishment is otherwise provided by this Act is guilty of an offence and liable on summary conviction for a first offence under that provision to a fine not exceeding $10,000, and for a second or subsequent offence under that provision to a fine not exceeding $20,000.
10. The Act is amended by adding the following after section 35:
Marginal note:Due diligence defence
35.1 A person may not be convicted of an offence under this Act — other than for a contravention of any of paragraphs 30(b) to (e) or subsection 32(1) — if they establish that they exercised due diligence to prevent the commission of the offence.
R.S., c. W-6WEIGHTS AND MEASURES ACT
Marginal note:1995, c. 1, par. 63(2)(d)
11. The definition “inspector” in section 2 of the Weights and Measures Act is replaced by the following:
“inspector”
« inspecteur »
“inspector” means a person who is designated under subsection 16.1(1) to verify compliance with this Act;
12. The portion of section 8 of the Act before paragraph (a) is replaced by the following:
Marginal note:Use of devices
8. No trader shall use, or have in their possession for use, in trade, any device unless
13. Subsection 9(1) of the Act is replaced by the following:
Marginal note:Marking commodities for sale
9. (1) No trader shall sell, offer for sale or have in their possession for sale on the basis of number or measure any commodity, unless its quantity is stated accurately within prescribed limits of error and in the manner prescribed in terms of number or units of measurement of length, area, volume or capacity, or mass or weight on the following items, as may be prescribed:
(a) the commodity;
(b) the package containing the commodity; or
(c) a shipping bill, bill of lading or other document accompanying the commodity.
14. (1) Paragraph 10(1)(d) of the Act is replaced by the following:
(d) respecting the manner in which inspectors shall carry out their functions under this Act;
(2) Subsection 10(1) of the Act is amended by adding the following after paragraph (e):
(e.1) prescribing a period, in relation to any category of trade or any class, type or design of device, for the purposes of subsection 15(1);
(3) Paragraph 10(1)(g) of the French version of the Act is replaced by the following:
g) préciser les cas où un commerçant doit signaler l’emplacement d’un instrument dont il a la propriété ou la possession en vue du commerce et les modalités de son rapport;
(4) Paragraphs 10(1)(k) and (l) of the Act are replaced by the following:
(k) respecting the detention of things seized and detained under paragraph 17(1)(c);
(l) respecting the disposition of things forfeited under section 41;
(5) Subsection 10(1) of the Act is amended by adding the following after paragraph (q):
(q.1) designating any class of examination or other service provided by an inspector under this Act as a class of examination or service to which any fees prescribed, or charges payable, under this Act do not apply;
15. Sections 15 and 16 of the Act are replaced by the following:
Marginal note:Examinations within prescribed periods
15. (1) Every trader who uses a device in trade, or possesses a device for trade, shall cause it to be examined, within the prescribed period, by an inspector.
Marginal note:Extensions
(2) The Minister may, in the prescribed circumstances, grant to a trader an extension of the period, but no extension may exceed one year.
Marginal note:Request for examination
15.1 An inspector may examine a device at the request of the owner or the person who is in possession of it.
Marginal note:Adjustments and alterations to devices
16. When an inspector examines a device, they may, with the consent of the owner or person who is in possession of it, make any prescribed adjustments or alterations to that device.
Marginal note:R.S., c. 31 (1st Supp.), s. 26
16. Sections 17 and 18 of the Act are replaced by the following:
ADMINISTRATION AND ENFORCEMENT
Designation
Marginal note:Power to designate
16.1 (1) For the purposes of the administration and enforcement of this Act, the Minister may designate persons, or classes of persons, to exercise powers in relation to any matter referred to in the designation.
Marginal note:Training and qualification
(1.1) The Minister shall ensure that, for each particular sector, all persons designated under subsection (1) are trained and qualified in the same manner and that all examinations made by these persons are conducted consistently.
Marginal note:Limitation
(2) The Minister may designate only persons employed in the federal public administration to exercise powers under any of sections 17 to 18, subsection 19(3) or section 21 or subsection 22.11(1).
Marginal note:Suspension and revocation
(3) The Minister may suspend or revoke a designation made under subsection (1).
Powers
Marginal note:Authority to enter and other powers
17. (1) An inspector who has reasonable grounds to believe that an object to which this Act applies is located in or on a place, including a vehicle, or that an activity regulated by this Act is conducted in a place, including a vehicle, may, for the purpose of verifying compliance with this Act,
(a) enter the place;
(b) examine the place or anything found in or on the place;
(c) seize and detain anything in or on the place;
(d) use any means of communication in the place or cause it to be used;
(e) use any computer system in the place, or cause it to be used, to examine data contained in or available to it;
(f) prepare a document, or cause one to be prepared, based on the data;
(g) use any copying equipment in the place, or cause it to be used;
(h) direct any person to put anything in or on the place into operation or to cease operating it; and
(i) prohibit or limit access to all or part of the place.
Marginal note:Certificate to be produced
(2) The Minister shall provide the inspector with a certificate of their designation, and on entering the place, the inspector shall, on request, produce the certificate to the person in charge of that place.
Marginal note:Duty to assist
(3) The owner or person in charge of the place and every person in the place shall give all assistance that is reasonably required to enable the inspector to verify compliance with this Act and shall provide any documents, data or information that are reasonably required for that purpose.
Marginal note:Warrant for dwelling-house
17.1 (1) If the place is a dwelling-house, the inspector may not enter it without the occupant’s consent except under the authority of a warrant issued under subsection (2).
Marginal note:Authority to issue warrant
(2) On ex parte application, a justice of the peace may issue a warrant authorizing an inspector who is named in it to enter a dwelling-house, subject to any conditions specified in the warrant, if the justice is satisfied by information on oath that
(a) the dwelling-house is a place referred to in subsection 17(1);
(b) entry to the dwelling-house is necessary to verify compliance with this Act; and
(c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused or that consent to entry cannot be obtained from the occupant.
Marginal note:Entry on private property
17.2 (1) For the purpose of gaining entry to a place referred to in subsection 17(1), an inspector may enter private property and pass through it, and is not liable for doing so. For greater certainty, no person has a right to object to that use of the property and no warrant is required for the entry, unless the property is a dwelling-house.
Marginal note:Person accompanying inspector
(2) A person may, at the inspector’s request, accompany the inspector to assist them to gain entry to the place referred to in subsection 17(1) and is not liable for doing so.
Marginal note:Use of force
17.3 In executing a warrant to enter a dwelling-house, an inspector shall not use force unless the use of force has been specifically authorized in the warrant and the inspector is accompanied by a peace officer.
Marginal note:Examining vehicle
18. (1) A member of the Royal Canadian Mounted Police or of any provincial or municipal police force may, at the request and in the company of an inspector, stop and detain any vehicle so that the inspector may examine it for the purposes of verifying compliance with this Act.
Marginal note:Vehicle to be moved
(2) The inspector may require the operator of the vehicle to proceed with it to an appropriate place, if doing so is necessary to conduct the examination.
17. (1) The portion of subsection 19(1) of the Act before paragraph (a) is replaced by the following:
Marginal note:Certificate
19. (1) If an inspector examines a device, they shall issue to the owner or person who is in possession of it,
(2) Subsection 19(2) of the Act is replaced by the following:
Marginal note:Marking of devices — requirements met
(2) If an inspector determines that a device referred to in paragraph (1)(a) meets the requirements of this Act and the regulations, they shall mark the device as prescribed and
(a) attach the prescribed seals that are intended to indicate any adjustments to the device; or
(b) if those seals are already attached to the device, verify that they can indicate any adjustments and, in the case of electronic seals, collect the information that is necessary to detect any adjustments.
18. (1) The portion of section 21 of the Act before paragraph (a) is replaced by the following:
Marginal note:Payment of fees if dispute
21. If a dispute arises between a trader and any other person with respect to the accuracy of a device that is used by the trader in trade and an inspector examines the device at the request of the trader or other person, the fee for the examination shall be paid
(2) Section 21 of the Act is renumbered as subsection 21(1) and is amended by adding the following:
Marginal note:Examination if dispute
(2) An inspector may examine the device at the request of a person referred to in subsection (1).
19. The Act is amended by adding the following before the heading before section 23:
ADMINISTRATIVE MONETARY PENALTIES
Powers of the Governor in Council
Marginal note:Regulations
22. The Governor in Council may make regulations
(a) designating any provision of this Act — other than paragraph 29(b), subsections 30(1) and 31(2) and section 32 — or of the regulations as a provision whose contravention may be proceeded with as a violation in accordance with sections 22.1 to 22.28;
(b) establishing a penalty, or a range of penalties, in respect of each violation;
(c) establishing criteria to be considered in determining the amount of the penalty if a range of penalties is established;
(d) classifying each violation as a minor violation, a serious violation or a very serious violation;
(e) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be increased or reduced in whole or in part; and
(f) respecting a lesser amount that may be paid as complete satisfaction of a penalty if it is paid within the prescribed time and in the prescribed manner, including the circumstances in which the lesser amount may be set out in a notice of violation.
Violations
Marginal note:Commission of violation
22.1 (1) Every person who contravenes a provision designated under paragraph 22(a) commits a violation and is liable to a penalty established in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of a penalty is to promote compliance with this Act and not to punish.
Marginal note:Maximum penalty
(3) The maximum penalty for a violation is $2,000.
Proceedings
Marginal note:Notice of violation
22.11 (1) An inspector may issue a notice of violation and cause it to be provided to a person if the inspector has reasonable grounds to believe that the person has committed a violation.
Marginal note:Contents of notice
(2) The notice of violation must
(a) name the person believed to have committed the violation;
(b) identify the acts or omissions that constitute the alleged violation;
(c) set out the penalty for the violation that the person is liable to pay;
(d) set out the particulars concerning the time and manner of payment; and
(e) subject to the regulations, set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are set out in the notice.
Marginal note:Summary of rights
(3) A notice of violation must clearly summarize, in plain language, the rights and obligations under this section and sections 22.12 to 22.25 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.
Marginal note:Short-form descriptions
(4) The Minister may establish a short-form description of each violation to be used in notices of violation.
Penalties
Marginal note:Effect of payment
22.12 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are set out in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice,
(a) they are deemed to have committed the violation to which the amount paid relates;
(b) the Minister shall accept that amount as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 22.11 are ended.
Marginal note:Alternatives to payment
(2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are set out in the notice,
(a) request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the provision to which the violation relates, if the penalty is $1,000 or more; or
(b) request a review by the Minister of the acts or omissions that constitute the alleged violation or the amount of the penalty.
Marginal note:Deeming
(3) If the person who is named in the notice does not pay the penalty, or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise any right referred to in subsection (2) within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice.
Compliance Agreements
Marginal note:Compliance agreements
22.13 (1) After considering a request made under paragraph 22.12(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on any conditions that are satisfactory to the Minister, which conditions may
(a) include a provision for the giving of reasonable security, in a form and in an amount that are satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; and
(b) provide for the reduction, in whole or in part, of the amount of the penalty for the violation.
Marginal note:Deeming
(2) A person who enters into a compliance agreement with the Minister is, on doing so, deemed to have committed the violation to which the compliance agreement relates, and the proceedings commenced in respect of the violation under section 22.11 are ended.
Marginal note:If compliance agreement complied with
(3) If the Minister is of the opinion that a person who has entered into a compliance agreement has complied with it, the Minister shall cause the person to be provided with a notice to that effect, at which time any security given by the person under that agreement shall be returned to the person.
Marginal note:If compliance agreement not complied with
(4) If the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with it, the Minister shall cause the person to be provided with a notice of default to the effect that
(a) instead of the penalty set out in the compliance agreement, the person is liable to pay, within the prescribed time and in the prescribed manner set out in the notice of default, twice the amount of the penalty set out in the notice of violation and, for greater certainty, subsection 22.1(3) does not apply in respect of that amount; or
(b) the security, if any, given by the person under the compliance agreement is forfeited to Her Majesty in right of Canada.
Marginal note:Effect of notice of default
(5) Once they have been provided with the notice of default, the person shall pay the amount set out in it or, if the notice provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada.
Marginal note:Effect of payment
(6) If the person pays the amount set out in a notice of default under paragraph (4)(a) within the prescribed time and in the prescribed manner that are set out in the notice,
(a) the Minister shall accept the amount as complete satisfaction of the amount owing; and
(b) the compliance agreement entered into under subsection (2) terminates.
Marginal note:Refusal to enter into compliance agreement
22.14 (1) If the Minister refuses to enter into a compliance agreement after considering a request made under paragraph 22.12(2)(a), the Minister shall cause the person to be provided with a notice to that effect and the person who is named in the notice is liable to pay the amount of the penalty within the prescribed time and in the prescribed manner that are set out in the notice.
Marginal note:Effect of payment
(2) If the person pays the amount within the prescribed time and in the prescribed manner
(a) they are deemed to have committed the violation to which the amount paid relates;
(b) the Minister shall accept the amount as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 22.11 are ended.
Marginal note:Deeming
(3) If the person does not pay the amount within the prescribed time and in the prescribed manner that are set out in the notice, they are deemed to have committed the violation.
Review by the Minister
Marginal note:Review — violation
22.15 (1) After completing a review requested under paragraph 22.12(2)(b) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Minister shall determine whether the person who is named in the notice committed the violation and, if the Minister determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Minister shall correct that amount and cause the person to be provided with a notice of the Minister’s decision.
Marginal note:Review — penalty
(2) After completing a review requested under paragraph 22.12(2)(b) with respect to the amount of the penalty set out in the notice of violation, the Minister shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Minister determines that it was not, the Minister shall correct that amount and cause the person to be provided with a notice of the Minister’s decision.
Marginal note:Payment
(3) The person who is provided with a notice of the Minister’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are set out in the notice.
Marginal note:Effect of payment
(4) If the person pays the amount of the penalty that is set out in the notice of the Minister’s decision within the prescribed time and in the prescribed manner that are set out in the notice,
(a) the Minister shall accept the amount as complete satisfaction of the penalty; and
(b) the proceedings commenced in respect of the violation under section 22.11 are ended.
Marginal note:Submissions in writing
(5) The Minister is to consider only written evidence and written submissions in determining whether a person committed a violation or whether the amount of a penalty was established in accordance with the regulations.
Recovery of Debts
Marginal note:Debts to Her Majesty
22.16 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:
(a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to enter into a compliance agreement with the Minister or to have the Minister review the acts or omissions that constitute the violation or the amount of the penalty;
(b) every amount set out in a compliance agreement entered into with the Minister under subsection 22.13(1), beginning on the day specified in that agreement or, if no day is specified, beginning on the day on which the agreement is entered into;
(c) the amount set out in a notice of default referred to in subsection 22.13(4), beginning on the day specified in the notice;
(d) the amount of a penalty set out in the Minister’s notice under subsection 22.14(1) or in the notice of the Minister’s decision made under subsection 22.15(1) or (2), beginning on the day specified in the notice; and
(e) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (d).
Marginal note:Limitation period or prescription
(2) No proceedings to recover such a debt may be commenced later than five years after the debt becomes payable.
Marginal note:Debt final
(3) The debt is final and may not be reviewed, restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 22.12 to 22.15.
Marginal note:Certificate of default
22.17 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 22.16(1).
Marginal note:Effect of registration
(2) Registration in the Federal Court of the certificate has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
Rules of Law About Violations
Marginal note:Violations not offences
22.18 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Marginal note:Due diligence defence
22.19 (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Marginal note:Burden of proof
22.2 In every case where the Minister is to determine whether a person who is named in a notice of violation committed any violation identified in it, the Minister shall do so on a balance of probabilities.
Marginal note:Offences by corporate officers, etc.
22.21 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors, agents or mandataries who directs, authorizes, assents to or acquiesces or participates in the commission of the violation is a party to and liable for the violation whether or not the person who actually committed it is proceeded against in accordance with this Act.
Marginal note:Vicarious liability — acts of employees, agents and mandataries
22.22 A person is liable for a violation that is committed by their employee, agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent’s or mandatary’s authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Marginal note:Continuing violation
22.23 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
Other Provisions
Marginal note:Evidence
22.24 In any proceeding for a violation, a notice of violation purporting to be issued under subsection 22.11(1) and a certificate purporting to be issued under paragraph 19(1)(a) are admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Limitation period or prescription
22.25 No proceedings in respect of a violation may be commenced later than six months after the day on which an inspector becomes aware of the acts or omissions that constitute the alleged violation.
Marginal note:Certification by Minister
22.26 A document appearing to have been issued by the Minister and certifying the day on which the acts or omissions that constitute the alleged violation became known to an inspector is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the inspector became aware of the acts or omissions on that day.
Marginal note:Information may be made public
22.27 The Minister may make public
(a) the name and business address of a person who enters into a compliance agreement, the nature of the compliance agreement — including the acts or omissions and provisions at issue, the conditions included in the compliance agreement and the amount payable under it, if any; or
(b) the name and business address of a person who is deemed to have committed a violation or who the Minister determined committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.
Marginal note:How act or omission may be proceeded with
22.28 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
20. Paragraph 23(a) of the Act is replaced by the following:
(a) in the certificate issued under paragraph 19(1)(a) at the time of the most recent examination made under this Act; or
21. The portion of section 24 of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Inobservation des règlements
24. Commet une infraction le commerçant qui, pour le commerce, utilise ou a en sa possession un instrument qui :
22. Section 25 of the Act is replaced by the following:
Marginal note:Examination within prescribed period
25. Every trader who fails to cause a device to be examined as required by subsection 15(1) is guilty of an offence.
23. Sections 31 and 32 of the Act are replaced by the following:
Marginal note:Obstructing inspector
31. (1) Every person who obstructs or hinders an inspector in carrying out their functions under this Act is guilty of an offence.
Marginal note:Misleading statements
(2) Every person who knowingly makes a false or misleading statement, either orally or in writing, in connection with any matter under this Act, to an inspector who is carrying out their functions under this Act is guilty of an offence.
Marginal note:Interference with seized thing
(3) Every person who, without an inspector’s permission, removes, alters or interferes in any way with anything seized and detained by an inspector under paragraph 17(1)(c) is guilty of an offence.
Marginal note:Failure to stop vehicle or proceed as directed
32. Every operator of a vehicle is guilty of an offence if they wilfully fail
(a) to bring the vehicle to a stop in accordance with any order or direction given under subsection 18(1) by a member of the Royal Canadian Mounted Police or of any provincial or municipal police force; or
(b) to proceed with the vehicle to an appropriate place in accordance with any order or direction given under subsection 18(2) by an inspector.
24. Subsections 35(1) and (2) of the Act are replaced by the following:
Marginal note:Punishment for first offence
35. (1) Every person who is guilty of an offence under any of sections 23 to 34 is liable, for a first offence,
(a) on summary conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding six months, or to both; or
(b) on conviction on indictment, to a fine not exceeding $25,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:Punishment for subsequent offences
(1.1) Every person who is guilty of an offence under any of sections 23 to 34 is liable, for a second or subsequent offence,
(a) on summary conviction, to a fine not exceeding $20,000 or to imprisonment for a term not exceeding six months, or to both; or
(b) on conviction on indictment, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding two years, or to both.
Marginal note:Punishment for general offence
(2) Every person who contravenes any provision of this Act or the regulations for the contravention of which no liability for a punishment is elsewhere provided in this Act is guilty of an offence and liable on summary conviction for a first offence under that provision to a fine not exceeding $10,000, and for a second or subsequent offence under that provision to a fine not exceeding $20,000.
25. The Act is amended by adding the following after section 35:
Marginal note:Due diligence defence
35.1 A person may not be convicted of an offence under this Act — other than for a contravention of paragraph 29(b), subsection 30(1) or 31(2) or section 32 — if they establish that they exercised due diligence to prevent the commission of the offence.
26. Section 36 of the French version of the Act is replaced by the following:
Marginal note:Présomption
36. Le commerçant qui a en sa possession un instrument qui ne porte pas la marque réglementaire indiquant que son usage est illégal pour le commerce est réputé, sauf preuve contraire, avoir l’instrument en sa possession pour s’en servir à des fins commerciales.
27. Subsection 38(2) of the Act is replaced by the following:
Marginal note:Inspector’s certificates
(2) In any prosecution for an offence under this Act, a certificate purporting to have been issued by an inspector under subsection 19(1) and to have been signed by the inspector who did the examination is evidence of the matters stated in it relating to the examination without proof of the signature or official character of the person appearing to have signed the certificate.
Marginal note:R.S., c. 27 (1st Supp.), s. 203
28. Sections 39 to 41 of the Act are replaced by the following:
Marginal note:Examination and samples of seized things
39. (1) If an inspector seizes and detains anything under paragraph 17(1)(c), they shall, at the request of the person from whom the thing is seized, allow that person or any person authorized by that person to examine the seized thing and, if possible, provide that person with a sample of it.
Marginal note:Detention
(2) A seized thing is not to be detained
(a) after the provisions of this Act or any regulations that are applicable to the seized thing have, in the inspector’s opinion, been complied with; or
(b) after the expiry of 60 days from the day of seizure, unless, before the expiry of that period,
(i) the seized thing has been forfeited under section 41,
(ii) a prosecution has been instituted in respect of an offence in relation to which the seized thing is evidence, in which case the seized thing may be detained until the prosecution is finally concluded, or
(iii) notice of an application for an order extending the period during which the seized thing may be detained has been served in accordance with section 40.
Marginal note:Storing of seized things
(3) A seized thing may, at the option of the inspector, be kept or stored in the building or place where it was seized or may be removed to any other proper place by the inspector or at their direction.
Marginal note:Application to extend period of detention
40. (1) If a prosecution in respect of an offence in relation to which a seized thing could be evidence has not been commenced, the Minister may, before the expiry of 60 days after the day of seizure and on the serving of prior notice in accordance with subsection (2) on the owner of the seized thing or on the person in whose possession the seized thing was at the time of seizure, apply to a provincial court judge within whose territorial jurisdiction the seizure was made for an order extending the period during which the seized thing may be detained.
Marginal note:Notice
(2) The notice shall be served by personal service at least five clear days before the day on which the application is to be made to the provincial court judge or by registered mail at least seven clear days before that day and shall specify
(a) the provincial court judge to whom the application is to be made;
(b) the place where and the time when the application is to be heard, which time shall be not later than 10 days after the day on which the notice is served;
(c) the seized thing in respect of which the application is to be made; and
(d) the evidence on which the Minister intends to rely to show why the period during which the seized thing may be detained should be extended.
Marginal note:Order of extension granted
(3) If, on the hearing of an application, the provincial court judge is satisfied that the seized thing should continue to be detained, the provincial court judge shall order that it be detained for any additional period that the provincial court judge considers proper and that on the expiry of that period the seized thing be restored to the person from whom it was seized or to any other person entitled to its possession unless, before the expiry of that period, subparagraph 39(2)(b)(i) or (ii) applies.
Marginal note:Order of extension refused
(4) If, on the hearing of an application, the provincial court judge is not satisfied that the seized thing should continue to be detained, the provincial court judge shall order that the thing be restored to the person from whom it was seized or to any other person entitled to its possession
(a) on the expiry of 60 days after the day of seizure, unless, before the expiry of those 60 days, subparagraph 39(2)(b)(i) or (ii) applies; or
(b) immediately, if, at the time of the hearing, the period of 60 days after the day of seizure has expired.
FORFEITURE AND RETURN
Marginal note:Forfeiture on consent
41. (1) If the owner or the person in lawful possession of a thing at the time it is seized under paragraph 17(1)(c) consents in writing to its forfeiture, it is forfeited to Her Majesty.
Marginal note:Forfeiture by order of court
(2) If a person is convicted of an offence under this Act and a thing seized by means of or in relation to which the offence was committed is then being detained, it
(a) is, on the conviction, in addition to any punishment imposed for the offence, forfeited to Her Majesty if the forfeiture is directed by the court; or
(b) shall, on the expiry of the period for taking an appeal from the conviction or on the final conclusion of the proceedings, as the case may be, be restored to the person from whom it was seized or to any other person entitled to its lawful possession on any conditions, if any, relating to sale or advertising that are imposed by order of the court and that, in the opinion of the court, are necessary to avoid the commission of any further offence under this Act.
29. The Act is amended by replacing “inspected” and “inspection” with “examined” and “examination”, respectively, in the following provisions:
(a) paragraph 8(b);
(b) paragraphs 10(1)(f), (q) and (r);
(c) the heading before section 15;
(d) paragraph 19(1)(b);
(e) the heading before section 20;
(f) subsection 20(1);
(g) paragraph 26(1)(c); and
(h) subparagraph 29(a)(i).
REPORT
Marginal note:Review
29.1 (1) The Minister of Industry must complete a review of the provisions and the operation of this Act within five years after it receives royal assent.
Marginal note:Report
(2) The Minister must cause a report of the results of the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report has been completed.
COMING INTO FORCE
Marginal note:Order in council
30. The provisions of this Act come into force on a day or days to be fixed by order of the Governor in Council.
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