Fairness at the Pumps Act (S.C. 2011, c. 3)
Full Document:
Assented to 2011-03-23
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.
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