• Marginal note:Exploitant du bâtiment

  (2) L’exploitant d’un bâtiment peut être déclaré coupable d’une infraction à la présente loi, en rapport avec ce bâtiment, commise par une autre personne, que celle-ci ait été ou non identifiée, poursuivie ou déclarée coupable, à moins que, lors de l’infraction, le bâtiment n’ait été en la possession d’une autre personne sans son consentement.

ADMINISTRATIVE PENALTIES

Interpretation

Definition of “violation”

32. In sections 33 to 51, “violation” means a contravention of a provision that is designated as a violation by the regulations.

Assurances of Compliance and Notices of Violation

Marginal note:If reasonable grounds to believe a violation

• 33. (1) If the Minister has reasonable grounds to believe that a person has committed a violation, the Minister may

  • (a) enter into an assurance of compliance with the person that

    • (i) identifies the violation and provides that the person will comply with the provision to which the violation relates within the period, and be subject to the terms and conditions, specified in the assurance,

    • (ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and

    • (iii) sets out the penalty, fixed by or within the range fixed by the regulations, that the person would have been liable to pay for the violation if the assurance had not been entered into; or

  • (b) issue, and cause to be served on the person, a notice of violation that names the person, identifies the violation and sets out

    • (i) the penalty, fixed by or within the range fixed by the regulations, that the person is liable to pay for the violation,

    • (ii) the period, being thirty days after notice is served, within which the penalty must be paid or a review must be requested, and

    • (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.

• Marginal note:Extension of period

  (2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person’s control.

• Marginal note:Short-form descriptions in notices of violation

  (3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Deemed violation

• 34. (1) A person who enters into an assurance of compliance under paragraph 33(1)(a) is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

• Marginal note:Request for review

  (2) A person who enters into an assurance of compliance may, within forty-eight hours after the assurance is signed, unless a notice of default is served within that period under subsection 36(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 39(1) of the facts of the violation and of the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

35. If the Minister is satisfied that an assurance of compliance under paragraph 33(1)(a) has been complied with, the Minister shall cause a notice to that effect to be served on the person and, on the service of the notice,

• (a) no further proceedings may be taken against the person with respect to the violation in respect of which the assurance was entered into; and

• (b) any security deposited under subparagraph 33(1)(a)(ii) must be returned to the person.

Marginal note:When assurance of compliance not complied with

• 36. (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,

  • (a) the person is liable to pay double the amount of the penalty set out in the assurance; or

  • (b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) A notice under subsection (1) shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.

• Marginal note:No set-off

  (3) On the service of a notice of default, the person served has no right of set-off against any amount spent by the person under the assurance of compliance.

Marginal note:Request for review

• 37. (1) A person who is served with a notice under subsection 36(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.

• Marginal note:Time and place for review

  (2) On receipt of a request filed under subsection (1), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (4) The burden is on the Minister to establish that the person did not comply with the assurance of compliance referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Certain defences not available

  (5) A person does not have a defence by reason that the person exercised all due diligence to comply with the assurance of compliance.

• Marginal note:Determination

  (6) The member may confirm the Minister’s decision or determine that the person has complied with the assurance of compliance.

Marginal note:Return of security

38. Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if

• (a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or

• (b) a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.

Marginal note:Notice of violation

• 39. (1) A person served with a notice of violation under paragraph 33(1)(b) must

  • (a) pay the amount of the penalty; or

  • (b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

• Marginal note:When review not requested

  (2) If a review of the facts of the violation is not requested, the person is deemed to have committed the violation in respect of which the notice was served.

• Marginal note:Time and place for review

  (3) On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing.

• Marginal note:Review procedure

  (4) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (5) The burden is on the Minister to establish that the person committed the violation referred to in the notice. The person is not required, and shall not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Determination

  (6) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 51(c), substitute his or her own determination.

Marginal note:Right of appeal

• 40. (1) The Minister or the person who requested the review of the decision may appeal a determination made under subsection 37(6) or 39(6) to the Tribunal within thirty days after the determination.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) The appeal panel of the Tribunal assigned to hear the appeal may

  • (a) in the case of a determination made under subsection 37(6), dismiss the appeal or allow the appeal and substitute its own decision; or

  • (b) in the case of a determination made under subsection 39(6), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 51(c), substitute its own decision.

Choice of Proceedings

Marginal note:How contravention may be proceeded with

41. If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.

Recovery of Debts

Marginal note:Debts due to Her Majesty

42. The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:

• (a) unless a review of the amount of a penalty is requested under subsection 39(1), the amount of the penalty, from the time the notice of violation that sets out the penalty is served;

• (b) the amount of a penalty set out in a notice of default referred to in subsection 36(1), from the time the notice under that subsection is served;

• (c) the amount of a penalty determined by a member under section 39, or decided by an appeal panel under section 40, from the time of the respective determination or decision; and

• (d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).

Marginal note:Certificate

• 43. (1) All or part of a debt referred to in section 42 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.

• Marginal note:Registration of certificate

  (2) On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant on its registration.

Rules of Law about Violations

Marginal note:Violations are not offences

44. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Defence

45. For greater certainty, no person is liable for the commission of a violation if the person exercised all due diligence to prevent the commission.

Marginal note:Violation by employee or agent

• 46. (1) A person is liable for a violation committed by their employee or agent, whether or not the employee or agent has been identified or proceeded against under sections 33 to 43.

• Marginal note:Liability of operator of a vessel

  (2) The operator of a vessel is liable for a violation committed in relation to the vessel by another person, whether or not the other person has been identified or proceeded against under sections 33 to 43 unless, at the time of the violation, the vessel was in the possession of another person without the operator’s consent.

• Marginal note:Liability of operator of marine facility

  (3) The operator of a marine facility is liable for a violation committed with their consent by another person in relation to the facility, whether or not the other person has been identified or proceeded against under sections 33 to 43.

• Marginal note:Officers, etc., of corporation

  (4) An officer, director or agent of a corporation that commits a violation under this Act is a party to and liable for the violation if he or she directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation has been identified or proceeded against under sections 33 to 43.

General Provisions

Marginal note:Notations removed

• 47. (1) Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the last day on which any of the following events occurs, the Minister is to remove every notation of violation or default, and every suspension or cancellation of the designation of or refusal to designate or to renew the designation of a person as a screening officer on prescribed grounds, from any records that the Minister may keep respecting the person:

  • (a) payment by the person of every penalty that the person is liable to pay after a notice of violation, a notice of default, a determination of a member of the Tribunal on review or a decision of an appeal panel of the Tribunal; or

  • (b) the suspension or cancellation of the designation of, or the refusal to designate or to renew the designation of, the person as a screening officer under section 19.2.

• Marginal note:Duty to notify

  (2) When the Minister is of the opinion that removal of a notation is not in the public interest, the Minister shall give notice of that fact to the person.

• Marginal note:Contents of notice

  (3) A notice under subsection (2) shall provide all relevant information concerning the grounds on which the Minister has refused to remove the notation and shall include the address at which, and the date, being thirty days after the notice is served, on or before which, a request for a review may be filed.

• Marginal note:Review

  (4) Subsections 37(1) to (3) apply in respect of a refusal to remove a notation, with any modifications that the circumstances require.

• Marginal note:Determination

  (5) The member of the Tribunal assigned to conduct the review may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

• Marginal note:Right of appeal

  (6) The person may, within thirty days after a determination is made under subsection (5), appeal the determination to the Tribunal.

• Marginal note:Loss of right of appeal

  (7) If the person does not appear at the review hearing, the person is not entitled to appeal a determination unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (8) The appeal panel of the Tribunal assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.

Marginal note:Public record

48. The Minister shall keep a public record of notations of violations or default that appear on any record that the Minister may keep respecting persons under this Act.

Marginal note:Limitation period

49. No notice of violation may be issued more than two years after the Minister becomes aware of the violation.

Marginal note:Certificate of Minister

50. A document that purports to have been issued by the Minister and certifies 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.

Regulations

Marginal note:Regulations

51. The Governor in Council may make regulations

• (a) designating, as a violation that may be proceeded with in accordance with sections 33 to 46, 49 and 50, the contravention of a provision that is an offence under this Act;

• (b) designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued;

• (c) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine that would be payable if the violation were proceeded with by way of summary conviction; and

• (d) prescribing anything that by subsections 33 to 50 is to be prescribed.