An Act to establish a system of administrative monetary penalties for the enforcement of the Canada Agricultural Products Act, the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act and the Seeds ActAgriculture and Agri-Food Administrative Monetary Penalties ActAgriculture and Agri-Food Administrative Monetary Penalties1995December
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A-8.8401995Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:SHORT TITLE
Short titleThis Act may be cited as the Agriculture and Agri-Food Administrative Monetary Penalties Act.
INTERPRETATION
DefinitionsIn this Act,agri-food Actloi agroalimentaireagri-food Act means the Canada Agricultural Products Act, the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act or the Seeds Act;Ministerministre Minister means the Minister of Agriculture and Agri-Food, except that, in relation to a violation involving a contravention of the Pest Control Products Act , it means the Minister of Health;penaltysanctionpenalty means an administrative monetary penalty imposed under this Act for a violation;prescribedVersion anglaise seulementprescribed means prescribed by regulation;TribunalCommissionTribunal means the Review Tribunal continued by subsection 4.1(1) of the Canada Agricultural Products Act.1995, c. 40, s. 2; 1997, c. 21, s. 30; 2002, c. 28, s. 82; 2005, c. 38, ss. 30, 145.
PURPOSE OF ACT
Purpose of ActThe purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-food Acts.
POWERS OF MINISTER
RegulationsThe Minister may make regulationsdesignating as a violation that may be proceeded with in accordance with this Actthe contravention of any specified provision of an agri-food Act or of a regulation made under an agri-food Act,the contravention of any specified order, or class of orders, made by the Minister under the Plant Protection Act, orthe refusal or neglect to perform any specified duty, or class of duties, imposed by or under the Plant Protection Act or the Health of Animals Act,if the contravention, or the failure or neglect to perform the duty, as the case may be, is an offence under an agri-food Act;classifying each violation as a minor violation, a serious violation or a very serious violation;fixing a penalty, or a range of penalties, in respect of each violation;respecting the circumstances under which, the criteria by which and the manner in which a penalty may be increased or reduced, including the reduction of a penalty pursuant to a compliance agreement under subsection 10(1);respecting the determination of a lesser amount that may be paid in complete satisfaction of a penalty if paid within the prescribed time and manner;respecting the circumstances under which reviews under this Act by the Tribunal shall be oral or in writing;respecting the service of documents required or authorized to be served under this Act including, without restricting the generality of the foregoing, the manner of serving such documents, the proof of their service and the circumstances under which such documents shall be deemed to have been served;prescribing anything that by this Act is to be prescribed; andgenerally, for carrying out the purposes and provisions of this Act.Maximum penaltiesThe maximum penalty for a violation isin the case of a violation that is committed by an individual otherwise than in the course of a business and that is not committed to obtain a financial benefit, $2,000; andin any other case, $2,000 for a minor violation, $10,000 for a serious violation and $15,000 for a very serious violation.CriteriaWithout restricting the generality of paragraph (1)(d), in making regulations respecting the criteria for increasing or reducing the amount of the penalty for a violation, the Minister shall include the following in any such criteria:the degree of intention or negligence on the part of the person who committed the violation;the harm done by the violation; andthe history of the person who committed the violation of prior violations or convictions under agri-food Acts within the five year period immediately before the violation.
How act or omission may be proceeded withWhere any act or omission can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that act or omission as a violation or recommend that it be proceeded with as an offence, but proceeding with it as a violation precludes proceeding with it as an offence, and proceeding with it as an offence precludes proceeding with it as a violation.
Duties of Minister re notices of violationThe Minister maydesignate persons, or classes of persons, who are authorized to issue notices of violation; andestablish, in respect of each violation, a short-form description to be used in notices of violation.
PROCEEDINGS
Commission of violationEvery person whocontravenes any provision of an agri-food Act or of a regulation made under an agri-food Act,contravenes any order made by the Minister under the Plant Protection Act, orrefuses or neglects to perform any duty imposed by or under the Plant Protection Act or the Health of Animals Actthe contravention of which, or the refusal or neglect of which, is designated to be a violation by a regulation made under paragraph 4(1)(a) commits a violation and is liable to a warning or to a penalty in accordance with this Act.Issuance of notice of violationWhere a person designated under paragraph 6(a) has reasonable grounds to believe that a person has committed a violation, the designated person may issue, and shall cause to be served on the person, a notice of violation that names the person, identifies the violation andcontains a warning that the person has committed a violation; orsets outthe penalty, established in accordance with the regulations, for the violation that the person is liable to pay,particulars concerning the time for paying and the manner of paying the penalty, andsubject to the regulations, a lesser amount that may be paid in complete satisfaction of the penalty if paid within the time and manner specified in the notice.Summary of rightsA notice of violation must clearly summarize, in plain language, the rights and obligations under this Act of the person on whom it is served, including the right to have the facts of the violation reviewed by the Minister or the Tribunal, and the procedure for requesting such a review.
NOTICES OF VIOLATION WITH WARNING
Notices with warning — request for reviewWhere a notice of violation contains a warning, the person named in the notice may, in the prescribed time and manner, request a review of the facts of the violation by the Minister or the Tribunal.DeemingWhere a person who is served with a notice of violation that contains a warning does not request a review under subsection (1) in the prescribed time and manner, the person is deemed to have committed the violation identified in the notice of violation.
NOTICES OF VIOLATION WITH PENALTY
Notices with penalty — paymentWhere a notice of violation sets out a penalty and the person named in the notice pays, in the prescribed time and manner, the amount of the penalty or, subject to the regulations, the lesser amount set out in the notice that may be paid in lieu of the penalty,the person is deemed to have committed the violation in respect of which the amount is paid;the Minister shall accept that amount as and in complete satisfaction of the penalty; andthe proceedings commenced in respect of the violation under section 7 are ended.Alternatives to paymentInstead of paying the penalty set out in a notice of violation or, where applicable, the lesser amount that may be paid in lieu of the penalty, the person named in the notice may, in the prescribed time and manner,if the penalty is $2,000 or more, request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the agri-food Act or regulation to which the violation relates;request a review by the Minister of the facts of the violation; orrequest a review by the Tribunal of the facts of the violation.DeemingWhere a person who is served with a notice of violation that sets out a penalty does not pay the penalty in the prescribed time and manner or, where applicable, the lesser amount that may be paid in lieu of the penalty, and does not exercise any right referred to in subsection (2) in the prescribed time and manner, the person is deemed to have committed the violation identified in the notice.
COMPLIANCE AGREEMENTS
Compliance agreementsAfter considering a request under paragraph 9(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on such terms and conditions as are satisfactory to the Minister, which terms mayinclude a provision for the giving of reasonable security, in a form and in an amount satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; andprovide for the reduction, in whole or in part, of the penalty for the violation.DeemingA person who makes a request under paragraph 9(2)(a) and who enters into a compliance agreement with the Minister shall, on entering into the compliance agreement, be deemed to have committed the violation in respect of which the compliance agreement was entered into.Where compliance agreement complied withWhere the Minister is satisfied that a person who has entered into a compliance agreement has complied with the agreement, the Minister shall cause a notice to that effect to be served on the person and, on the service of that notice,the proceedings commenced in respect of the violation under section 7 are ended; andany security given under the compliance agreement by the person shall be returned to the person.Where compliance agreement not complied withWhere the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with the agreement, the Minister shall cause a notice of default to be served on the person to the effect thatinstead of the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, the person is liable to pay twice the amount of that penalty and, for greater certainty, subsection 4(2) does not apply in respect of that amount; orthe security, if any, given under the compliance agreement by the person shall be forfeited to Her Majesty in right of Canada.Effect of notice of defaultOn the service of a notice under subsection (4), the person served has no right of set-off against any amount spent by the person under the compliance agreement andthe person served is liable to pay the amount set out in the notice; orwhere the notice of default provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada and the proceedings commenced in respect of the violation under section 7 are ended.Effect of paymentWhere a person pays the amount set out in a notice of default under subsection (4) in the prescribed time and manner,the Minister shall accept the amount as and in complete satisfaction of the amount owing; andthe proceedings commenced in respect of the violation under section 7 are ended.
Refusal to enter into compliance agreementWhere the Minister refuses to enter into a compliance agreement pursuant to a request under paragraph 9(2)(a), the person who made the request may, in the prescribed time and manner,pay the amount of the penalty; orrequest a review by the Tribunal of the facts of the violation.Effect of paymentWhere a person pays the amount referred to in paragraph (1)(a),the person is deemed to have committed the violation in respect of which the payment is made;the Minister shall accept the amount as and in complete satisfaction of the penalty; andthe proceedings commenced in respect of the violation under section 7 are ended.DeemingWhere a person does not pay the amount referred to in paragraph (1)(a) in the prescribed time and manner or does not request a review under paragraph (1)(b), the person is deemed to have committed the violation identified in the notice of violation.
REVIEW BY MINISTER
Review under section 8After concluding a review requested under section 8, the Minister shall determine whether or not the person committed the violation, and the Minister shall cause a notice of any decision under this subsection to be served on the person who requested the review.Right to reviewWhere the Minister decides under subsection (1) that a person has committed a violation, the person may, in the prescribed time and manner, request a review of the Minister’s decision by the Tribunal.
Review under paragraph 9(2)(b)After concluding a review requested under paragraph 9(2)(b), the Minister shall determine whether or not the person requesting the review committed a violation and, where the Minister decides that the person committed a violation but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Minister shall correct the amount of the penalty for the violation, and the Minister shall cause a notice of any decision under this subsection to be served on the person who requested the review.Payment or right to reviewWhere the Minister decides under subsection (1) that a person has committed a violation, the person may, in the prescribed time and manner,pay the amount of the penalty set out in the notice referred to in subsection (1), in which casethe Minister shall accept the amount as and in complete satisfaction of the penalty, andthe proceedings commenced in respect of the violation under section 7 are ended; orrequest a review of the Minister’s decision by the Tribunal.
REVIEW BY TRIBUNAL
Review by TribunalAfter concluding a review requested under this Act, the Tribunal shall, by order, as the case may be,confirm, vary or set aside any decision of the Minister under section 12 or 13, ordetermine whether or not the person requesting the review committed a violation and, where the Tribunal decides that the person committed a violation but considers that the amount of the penalty for the violation, if any, was not established in accordance with the regulations, the Tribunal shall correct the amount of the penalty,and the Tribunal shall cause a notice of any order made under this subsection to be served on the person who requested the review, and on the Minister.PaymentWhere the Tribunal decides under subsection (1) that a person has committed a violation, the person is liable for the amount of the penalty as set out in the order of the Tribunal and, on the payment of that amount in the time and manner specified in the order,the Minister shall accept the amount as and in complete satisfaction of the penalty; andthe proceedings commenced in respect of the violation under section 7 are ended.
ENFORCEMENT
Debts to Her MajestyThe following amounts constitute debts due to Her Majesty in right of Canada that may be recovered as such in the Federal Court:the amount of a penalty, from the time the notice of violation setting out the penalty is served;every amount undertaken to be paid pursuant to a compliance agreement entered into with the Minister under subsection 10(1), from the time the compliance agreement is entered into;the amount set out in a notice of default referred to in subsection 10(4), from the time the notice is served;the amount of a penalty as set out in a decision of the Minister under subsection 13(1), from the time the notice under that subsection is served;the amount of a penalty as set out in an order of the Tribunal under subsection 14(1), from the expiration of the time specified in the order for the payment of that amount; andthe amount of any reasonable expenses incurred pursuant to section 22, from the date they are incurred.Time limitNo proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable.Debt finalA debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 9 to 14 of this Act and subsection 12(2) of the Canada Agricultural Products Act.
Certificate of defaultAny debt referred to in subsection 15(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.JudgmentsOn production to the Federal Court, a certificate made under subsection (1) shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in the certificate and all reasonable costs and charges attendant in the registration of the certificate.
RULES OF LAW ABOUT VIOLATIONS
Violations not offencesFor greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Certain defences not availableA person named in a notice of violation does not have a defence by reason that the personexercised due diligence to prevent the violation; orreasonably and honestly believed in the existence of facts that, if true, would exonerate the person.Common law principlesEvery rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under an agri-food Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Burden of proofIn every case where the facts of a violation are reviewed by the Minister or by the Tribunal, the Minister must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice.
Vicarious liability — licence holders, etc.The holder of a licence, certificate, letter of accreditation, permit, notice or other document issued under an agri-food Act is liable for a violation that is committed in respect of any matter relating to any activity or requirement under that document, whether or not the person who actually committed the violation is identified or proceeded against in accordance with this Act.Vicarious liability — acts of employees and agentsA person is liable for a violation that is committed by any employee or agent of the person acting in the course of the employee’s employment or the scope of the agent’s authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.
Continuing violationA violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
ForfeitureWherea person is deemed by this Act to have committed a violation, orthe Minister, pursuant to a review under this Act, has decided that a person has committed a violation and no request to review the Minister’s decision has been made to the Tribunal in the prescribed time and manner,anything seized and detained under an agri-food Act in relation to the violation is, at the election of Her Majesty in right of Canada, immediately forfeited to Her Majesty in right of Canada and may be disposed of, at the expense of the person from whom it was seized, in accordance with the regulations made under the applicable agri-food Act unless the Minister directs otherwise.
GENERAL PROVISIONS
Notations removedAny notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years fromwhere the notice of violation contained a warning, the date the notice was served, orin any other case, the payment of any debt referred to in subsection 15(1),unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection.Duty to notifyThe Minister shall cause a notice of removal to be served on the person in respect of whom a notation is removed pursuant to subsection (1).
Service of documentsEvery document required or authorized to be served under this Act shall be served in accordance with the regulations, either personally or in such other manner as may be authorized in the regulations.
EvidenceIn any proceeding for a violation or for a prosecution for an offence, a notice of violation purporting to be issued pursuant to this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed the notice of violation.
Time limitNo proceedings in respect of a violation may be commenced later thansix months after the Minister became aware of the violation, in the case of a minor violation; ortwo years after the Minister became aware of the violation, in the case of a serious violation or a very serious violation.Certificate of MinisterA document purporting to have been issued by the Minister and certifying the day on which the Minister became aware of a violation is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the violation on that day.
RELATED AND CONSEQUENTIAL AMENDMENTS
[Amendments]
COMING INTO FORCE
Coming into forceThis Act or any of its provisions, or any provision enacted or amended by this Act, comes into force on a day or days to be fixed by order of the Governor in Council.[Note: Act in force July 30, 1997, see SI/97-89.]
AMENDMENTS NOT IN FORCE — 1998, c. 22, s. 26
The long title of the Agriculture and Agri-Food Administrative Monetary Penalties Act is replaced by the following:An Act to establish a system of administrative monetary penalties for the enforcement of the Canada Agriculture Products Act, the Feeds Act, the Fertilizers Act, the Canada Grain Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act and the Seeds Act
— 1998, c. 22, s. 27
The definition agri-food Act in section 2 of the Act is replaced by the following:agri-food Actloi agroalimentaire agri-food Act means the Canada Agricultural Products Act, the Feeds Act, the Fertilizers Act, the Canada Grain Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act or the Seeds Act;
— 1998, c. 22, s. 28
1997, c. 21On the later of the coming into force of section 29 of the Farm Debt Mediation Act, chapter 21 of the Statutes of Canada, 1997, and the coming into force of section 26 of this Act, the long title of the Agriculture and Agri-Food Administrative Monetary Penalties Act is replaced by the following:An Act to establish a system of administrative monetary penalties for the enforcement of the Canada Agriculture Products Act, the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Canada Grain Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act and the Seeds Act1997, c. 21On the later of the coming into force of section 30 of the Farm Debt Mediation Act, chapter 21 of the Statutes of Canada, 1997, and the coming into force of section 27 of this Act, the definition agri-food Act in section 2 of the Agriculture and Agri-Food Administrative Monetary Penalties Act is replaced by the following:agri-food Actloi agroalimentaire agri-food Act means the Canada Agricultural Products Act, the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Canada Grain Act, the Health of Animals Act, the Meat Inspection Act, the Pest Control Products Act, the Plant Protection Act or the Seeds Act;