Transportation Appeal Tribunal of Canada Act (S.C. 2001, c. 29)
Full Document:
Assented to 2001-12-18
Marginal note:1999, c. 9, s. 25
68. Subsection 32(4) of the Act is replaced by the following:
Marginal note:Contents of notice
(4) An order contained in a notice under subsection (1), (3) or (3.1) takes effect on the date of receipt of the notice. The notice shall indicate the address at which, and the date, being thirty days after the notice is sent, on or before which, the recipient of the notice may file a request for a review of the order.
69. The Act is amended by adding the following after section 32:
Marginal note:Request for review
32.1 (1) A person, including a railway company, who is sent a notice under section 32 that contains an order 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 of the order.
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. In the case of a request for review of an order made under subsection 32(3), the Tribunal shall do so without delay.
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:Person not compelled to testify
(4) In a review of an order made under subsection 32(3), a person who the Minister is of the opinion has contravened a regulation made under section 24 is not required, and shall not be compelled, to give any evidence or testimony in the matter.
Marginal note:Determination
(5) The member may confirm the order or refer the matter back to the Minister for reconsideration.
Marginal note:Right of appeal
32.2 (1) The person who requested the review under section 32.1 may, within thirty days after the determination, appeal a determination made under subsection 32.1(5) to the Tribunal.
Marginal note:Loss of right of appeal
(2) 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
(3) 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:Stay of order
32.3 If a request for review is filed, an order made under subsection 32(1) or (3.1) shall be stayed until the matter is finally disposed of in accordance with section 32.1, 32.2 or 32.4. However, an order made under subsection 32(3) shall not be stayed pending a review under section 32.1, an appeal under section 32.2 or reconsideration by the Minister under subsection 32.1(5) or 32.2(3).
Marginal note:Reconsideration by Minister
32.4 If a matter is referred back to the Minister under subsection 32.1(5) or 32.2(3), the Minister may confirm the order, or may, by order, alter or revoke the order. For greater certainty, the Minister’s order may be made an order of the Federal Court or of any superior court under section 34.
Marginal note:When alteration or revocation effective
32.5 An alteration or revocation under section 32.4 has effect when the railway company or other person to whom notice of the order under section 32 was sent receives notice of the alteration or revocation.
Marginal note:1999, c. 9, s. 33
70. Paragraph 46(d) of the Act is replaced by the following:
(d) orders and notices sent under sections 31 to 32.5;
COORDINATING AMENDMENTS
Amendment to This Act
Marginal note:Amendment to this Act
71. If Bill C-14, introduced in the first session of the 37th Parliament and entitled the Canada Shipping Act, 2001, receives royal assent, then, on the coming into force of section 1 of that Act, subsection 2(2) of this Act is replaced by the following:
Marginal note:Jurisdiction generally
(2) The Tribunal has jurisdiction in respect of reviews and appeals as expressly provided for under the Aeronautics Act, the Canada Shipping Act, 2001, the Marine Transportation Security Act, the Railway Safety Act and any other federal Act regarding transportation.
Bill C-14
Marginal note:Bill C-14
72. If Bill C-14, introduced in the first session of the 37th Parliament and entitled the Canada Shipping Act, 2001 (referred to in this section as the “other Act”), receives royal assent, then, on the coming into force of section 2 of this Act,
(a) the definition “adjudicator” in section 2 of the other Act is repealed;
(b) section 2 of the other Act is amended by adding the following in alphabetical order:
“Tribunal”
« Tribunal »
“Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act.
(c) section 15 of the other Act and the heading before it are repealed;
(d) subparagraph 16(4)(e)(ii) of the French version of the other Act is replaced by the following:
(ii) le capitaine ou le membre de l’équipage a été déclaré coupable d’une infraction liée à l’exécution de ses fonctions sur un bâtiment ou a commis une violation pour laquelle un procès-verbal a été dressé en vertu de l’alinea 229(1)b).
(e) subsections 16(5) and (6) of the other Act are replaced by the following:
Marginal note:Notice after refusal to issue
(5) The Minister of Transport must, immediately after refusing to issue a Canadian maritime document, give the applicant a notice
(a) confirming the refusal and providing all relevant information concerning the grounds on which the Minister has refused to issue the document; and
(b) indicating, in the case of a refusal to issue a document under Part 3 (Personnel) on the grounds set out in paragraph (4)(a), (b), (c) or (e), the address at which, and the date, being thirty days after the notice is given, on or before which, the applicant may file a request for a review of the Minister’s decision.
(f) the other Act is amended by adding the following after section 16:
Marginal note:Request for review
16.1 (1) An applicant who receives a notice under subsection 16(5) 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 of the decision if
(a) the request is in respect of a Canadian maritime document that is issued under Part 3 (Personnel); and
(b) the grounds for refusing to issue the document are set out in paragraph 16(4)(a), (b), (c) or (e).
Marginal note:Time and place for review
(2) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister of Transport and the applicant of the time and place in writing.
Marginal note:Review procedure
(3) The member of the Tribunal assigned to conduct the review must provide the Minister of Transport and the applicant with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Person not compelled to testify
(4) In a review of a decision made under subparagraph 16(4)(e)(ii) on the ground that an applicant has committed a violation in respect of which a notice of violation has been issued to the applicant, the applicant is not required, and must not be compelled, to give any evidence or testimony in the matter before the matter that gave rise to the issue of the notice has been disposed of in accordance with sections 232 to 232.2.
Marginal note:Determination
(5) The member may
(a) in the case of a decision made under paragraph 16(4)(e), confirm the decision or substitute his or her own determination; or
(b) in any other case, confirm the decision or refer the matter back to the Minister of Transport for reconsideration.
(g) section 20 of the other Act is replaced by the following:
Marginal note:Suspension, cancellation and refusal to renew
20. (1) Subject to section 20.1, the Minister of Transport may suspend, cancel or refuse to renew a Canadian maritime document if the Minister is satisfied that
(a) the requirements for the issuance of the document are no longer met;
(b) a term or condition attached to the document has been contravened;
(c) the document was obtained by any fraudulent or improper means or a misrepresentation of any material fact;
(d) the holder of the document has not paid a fine or penalty imposed on them under this Act;
(e) the holder of the document has contravened a provision of this Act or the regulations that the Minister is responsible for administering;
(f) in the case of a Canadian maritime document issued under Part 3 (Personnel) to a master or crew member,
(i) the master or crew member is incompetent or has committed an act of misconduct,
(ii) the master or crew member was on board a vessel that contravened any of sections 5.3 to 5.5 of the Coastal Fisheries Protection Act and knew, when the contravention occurred, that the vessel was committing the contravention, or
(iii) the master or crew member has been found guilty of an offence related to their duties on a vessel; or
(g) in the case of a refusal to renew,
(i) the applicant has not paid a fee set under paragraph 35(1)(g) in respect of the issuance of the document, or
(ii) the Minister is of the opinion that the public interest and, in particular, the record of the applicant or of a principal of the applicant warrant it.
Marginal note:Return of document
(2) If a Canadian maritime document is suspended or cancelled, the person who held it shall return it on demand to the Minister of Transport.
Marginal note:Notice before suspension or cancellation
20.1 The Minister of Transport must, before suspending or cancelling a Canadian maritime document issued under Part 3 (Personnel), give the holder 30 days notice of the proposed suspension or cancellation. The notice must
(a) provide the holder with all relevant information concerning the grounds on which the Minister proposes to suspend or cancel the document; and
(b) indicate, in the case of a proposed suspension or cancellation of a document on the grounds referred to in paragraph 20(1)(a), (b), (c), (e) or (f) or subparagraph 20(1)(g)(ii), the address at which, and the date, being 30 days after the notice is given, on or before which, the applicant may file a request for a review of the Minister’s decision.
Marginal note:Exception
20.2 (1) The Minister of Transport may suspend or cancel a Canadian maritime document issued under Part 3 (Personnel) without complying with section 20.1 if, on ex parte application by the Minister, the Tribunal determines that compliance with that section is not in the interest of public safety.
Marginal note:Decision within 24 hours
(2) An application by the Minister of Transport under subsection (1) must be heard by a member of the Tribunal, sitting alone, whose determination shall be made within 24 hours after the application is filed with the Tribunal.
Marginal note:Appeal
(3) The Minister of Transport may, within 24 hours after the determination, appeal the determination to the Tribunal.
Marginal note:Decision within 48 hours
(4) The appeal panel of the Tribunal assigned to hear the appeal shall make a decision within 48 hours after the appeal is filed with the Tribunal.
Marginal note:Notice after suspension, cancellation or refusal to renew
20.3 Except where notice of a proposed suspension or cancellation of a Canadian maritime document is given under section 20.1, the Minister of Transport must, immediately after suspending, cancelling or refusing to renew a Canadian maritime document, give the holder a notice that
(a) confirms the suspension, cancellation or refusal and provides all relevant information concerning the grounds on which the Minister suspended, cancelled or refused to renew the document; and
(b) indicates, in the case of the suspension or cancellation of, or the refusal to renew, a document on the grounds referred to in paragraph 20(1)(a), (b), (c), (e) or (f) or subparagraph 20(1)(g)(ii), the address at which, and the date, being 30 days after the notice is given, on or before which, the applicant may file a request for a review of the Minister’s decision.
Marginal note:Request for review
20.4 (1) Subject to subsection (2), the holder of a Canadian maritime document that is referred to in a notice under section 20.1 or 20.3 may, within the time specified in the notice or any further time that the Tribunal on application allows, file a written request for a review of the decision referred to in the notice.
Marginal note:Exception
(2) A request for a review must not be filed with, or accepted by, the Tribunal if the grounds for suspending, cancelling or refusing to renew the document are set out in paragraph 20(1)(d) or subparagraph 20(1)(g)(i).
Marginal note:Effect of request
(3) The filing of a request for a review in respect of a notice under section 20.1 operates as a stay of the proposed suspension or cancellation until the matter is finally disposed of in accordance with this section or section 20.5.
Marginal note:Time and place for review
(4) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister of Transport and the holder of the time and place in writing.
Marginal note:Review procedure
(5) The member of the Tribunal assigned to conduct the review must provide the Minister of Transport and the holder with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Person not compelled to testify
(6) In a review of a decision made under paragraph 20(1)(e), the holder is not required, and must not be compelled, to give any evidence or testimony in the matter.
Marginal note:Determination
(7) The member may
(a) in the case of a decision made under paragraph 20(1)(e) or subparagraph 20(1)(f)(ii) or (iii), confirm the Minister of Transport’s decision or substitute his or her own determination; and
(b) in any other case, confirm the Minister of Transport’s decision or refer the matter back to the Minister for reconsideration.
Marginal note:Right of appeal
20.5 (1) The applicant for, or holder of, a Canadian maritime document may appeal to the Tribunal a determination made under subsection 16.1(5) or 20.4(7), and the Minister of Transport may appeal to the Tribunal a determination made under paragraph 16.1(5)(a) or 20.4(7)(a). The time limit for making an appeal is 30 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 paragraph 16.1(5)(a) or 20.4(7)(a), dismiss the appeal, or allow the appeal and substitute its own decision; or
(b) in the case of a determination made under paragraph 16.1(5)(b) or 20.4(7)(b), dismiss the appeal or refer the matter back to the Minister of Transport for reconsideration.
(h) paragraphs 35(1)(a) and (c) of the other Act are repealed;
(i) subsection 229(1) of the other Act is replaced by the following:
229. (1) If the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may
(a) enter into an assurance of compliance with the person or vessel that
(i) identifies the violation and provides that the person or vessel 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 made under this Part, for the violation that the person or vessel would have been liable to pay if the assurance had not been entered into; or
(b) issue, and cause to be served on the person or vessel, a notice of violation that names the person or vessel, identifies the violation and sets out
(i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay,
(ii) the period, being thirty days after the notice is served, within which the penalty must be paid or a review of the notice requested, and
(iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.
(j) subsection 229(3) of the French version of the other Act is replaced by the following:
Marginal note:Description abrégée
(3) Il peut établir, pour toute violation, une description abrégée à utiliser dans les procès-verbaux.
(k) sections 230 to 232 of the other Act are replaced by the following:
Marginal note:Deemed violation
230. (1) A person who, or vessel that, enters into an assurance of compliance 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, or vessel that, enters into an assurance of compliance may, within 48 hours after the assurance is signed, unless a notice of default is served within that period under section 231.1, request 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 paragraph 232(1)(b) of the facts of the violation and the amount of the penalty is deemed to have been requested.
Marginal note:When assurance of compliance complied with
231. If the Minister is satisfied that an assurance of compliance has been complied with, the Minister must cause a notice to that effect to be served on the person or vessel and, on the service of the notice,
(a) no further proceedings may be taken against the person or vessel with respect to the violation in respect of which the assurance was entered into; and
(b) any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel.
Marginal note:When assurance of compliance not complied with
231.1 (1) If the Minister is of the opinion that a person who, or vessel that, 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 or vessel to the effect that, unless a member determines under section 231.2, or an appeal panel decides under section 232.2, that the assurance has been complied with,
(a) the person or vessel is liable to pay double the amount of the penalty set out in the assurance; or
(b) the security deposited under subparagraph 229(1)(a)(ii) is forfeited to Her Majesty in right of Canada.
Marginal note:Contents of notice
(2) A notice under subsection (1) must include the address at which, and the date, being 30 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 or vessel served has no right of set-off against any amount spent by the person or vessel under the assurance of compliance.
Marginal note:Request for review
231.2 (1) A person or vessel served with a notice under subsection 231.1(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 must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, 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 must provide the Minister and the person or vessel 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 or vessel did not comply with the assurance of compliance referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.
Marginal note:Certain defences not available
(5) A person or vessel named in a notice of default does not have a defence by reason that the person or vessel exercised 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 or vessel has complied with the assurance of compliance.
Marginal note:Return of security
231.3 Any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel if
(a) the person or vessel pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice of default under section 231.1; or
(b) a member determines under section 231.2, or an appeal panel decides under section 232.2, that the assurance of compliance has been complied with.
Marginal note:Notice of violation
232. (1) A person or vessel served with a notice of violation under paragraph 229(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 or vessel is deemed to have committed the violation in respect of which the notice was served.
Marginal note:Time and place for review
232.1 (1) On receipt of a request filed under paragraph 232(1)(b), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.
Marginal note:Review procedure
(2) The member of the Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Burden of proof
(3) The burden is on the Minister to establish that the person or vessel committed the violation referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.
Marginal note:Determination
(4) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 244(h), substitute his or her own determination.
Marginal note:Right of appeal
232.2 (1) The Minister or the person who, or vessel that, requested the review may, within 30 days after the determination, appeal a determination made under subsection 231.2(6) or 232.1(4) to the Tribunal.
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 231.2(6), dismiss the appeal or allow the appeal and substitute its own decision; or
(b) in the case of a determination made under subsection 232.1(4), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 244(h), substitute its own decision.
(l) section 234 of the other Act is replaced by the following:
Marginal note:Debts due to Her Majesty
234. 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 the penalty is requested under paragraph 232(1)(b), the amount of a penalty set out in a notice of violation, from the time the notice is served;
(b) the amount that a notice of default served under subsection 231.1(1) provides that a person is liable to pay, from the time the notice is served;
(c) the amount of a penalty determined by a member after a review under section 232.1, or decided by an appeal panel after an appeal under section 232.2, 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).
(m) subsection 235(1) of the other Act is replaced by the following:
Marginal note:Certificate
235. (1) All or part of a debt referred to in section 234 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.
(n) paragraph 239(1)(a) of the other Act is replaced by the following:
(a) the person or vessel pays every penalty that the person or vessel 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;
(o) subsection 239(3) of the other Act is replaced by the following:
Marginal note:Contents of notice
(3) A notice under subsection (2) must 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:Request for review
(4) The person or vessel 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
(5) On receipt of a request filed under subsection (4), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.
Marginal note:Review procedure
(6) The member of the Tribunal assigned to conduct the review must provide the Minister and the person who, or vessel that, filed the request with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.
Marginal note:Determination
(7) The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.
Marginal note:Right of appeal
(8) The person who, or vessel that, requested the review may, within 30 days after the determination, appeal a determination made under subsection (7) to the Tribunal.
Marginal note:Loss of right of appeal
(9) If the person or vessel does not appear at the review hearing, the person or vessel is not entitled to appeal a determination unless the person or vessel establishes that there was sufficient reason to justify the absence.
Marginal note:Disposition of appeal
(10) The appeal panel assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.
(p) paragraph 244(i) of the other Act is repealed.
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