Budget Implementation Act, 2018, No. 2 (S.C. 2018, c. 27)
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Assented to 2018-12-13
PART 4Various Measures (continued)
DIVISION 232001, c. 6Marine Liability Act (continued)
Amendments to the Act (continued)
742 (1) Subsection 124(1) of the Act is replaced by the following:
Marginal note:Right to information
124 (1) If the examiner considers it necessary to enable them to prepare a report as required by this Part, they may direct that present or former Administrators, Deputy Administrators, employees or agents or mandataries of the Ship-source Oil Pollution Fund provide the examiner with the following to the extent they are reasonably able to do so:
(2) The portion of subsection 124(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Administrator’s responsibilities
(2) On receiving the examiner’s direction, the Administrator shall
(3) Paragraph 124(2)(b) of the Act is replaced by the following:
(b) obtain from any former Administrator or the present or any former Deputy Administrator, employees or agents or mandataries of that Fund any information and explanations that the examiner considers necessary to enable the examiner to prepare any report that is required by this Part and that the former Administrator or the present or former Deputy Administrator, employees or agents or mandataries are reasonably able to provide and provide the examiner with the information and explanations so obtained.
743 (1) Paragraphs 125(a) and (b) of the Act are replaced by the following:
(a) respecting the payment of the levy under section 114.1 and of the additional levy under section 114.2;
(b) prescribing, for the purposes of paragraph 114.1(2)(b), a quantity of oil that is less than the quantity set out in that paragraph;
(c) exempting classes of persons from the application of paragraph 114.1(2)(a) or (b);
(c.1) prescribing classes of persons for the purposes of regulations made under paragraph (c);
(c.2) amending the definition receiver in subsection 91(1); and
(2) Paragraphs 125(b) and (c) of the Act are replaced by the following:
(3) Section 125 of the Act is amended by striking out “and” at the end of paragraph (c.2) and by adding the following after that paragraph:
(c.3) prescribing classes of persons who export, in a calendar year, more than 150 000 metric tons of contributing oil that is shipped in bulk as cargo after being exported and deeming those persons to have exported the contributing oil in bulk as cargo in that year;
(c.4) prescribing classes of persons who export, in a calendar year, more than 20 000 metric tons of non-persistent oil that is shipped in bulk as cargo after being exported and deeming those persons to have exported the non-persistent oil in bulk as cargo in that year;
(c.5) prescribing, for the purposes of paragraph (c.3) or (c.4), a quantity of oil that is less than the quantity set out in that paragraph; and
744 (1) The Act is amended by adding the following after section 130:
Administrative Monetary Penalties
Assurances of Compliance and Notices of Violation
Marginal note:Violation
130.01 (1) Every person who contravenes any of the following provisions commits a violation and is liable to a penalty:
(a) subsections 74.4(2) and (3), paragraphs 114.1(2)(a) and (b), subsections 114.2(1), 117.1(1), 117.3(2) and 118(1) and (1.1), section 118.1 and subsection 129(7); and
(b) a provision of this Act or of the regulations the contravention of which is designated as a violation by a regulation made under paragraph 130.19(a).
Marginal note:Penalty
(2) The maximum amount payable as the penalty for each violation set out in subsection (1) is, in the case of an individual, $50,000 and, in the case of any other person, $250,000.
Marginal note:Clarification
(3) If a contravention of a provision may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other.
Marginal note:Nature of violation
(4) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Due diligence defence
(5) A person shall not be found to be liable for a violation under this Act, other than in relation to a contravention of subsection 117.3(2) or 118(1) or (1.1), if they establish that they exercised due diligence to prevent its commission.
Marginal note:Assurance of compliance or notice of violation
130.02 (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, is to be deposited with the Minister, and
(iii) sets out the penalty 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 them, identifies the violation and sets out
(i) the penalty that the person is liable to pay for the violation,
(ii) the period, being 30 days after the day on which the notice is served, within which the penalty is to be paid or a review is to be requested, and
(iii) particulars of the manner in which, and the address at which, the penalty is to be paid or a review is to be 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
130.03 (1) A person who enters into an assurance of compliance under paragraph 130.02(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 48 hours after the assurance is signed, unless a notice of default is served within that period under subsection 130.05(1), file a request with the Transportation Appeal Tribunal of Canada for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and the person is deemed to have filed a written request for a review of the facts of the violation and the amount of the penalty under paragraph 130.09(1)(b).
Marginal note:When assurance of compliance complied with
130.04 If the Minister is satisfied that a person who has entered into an assurance of compliance under paragraph 130.02(1)(a) has complied with it, he or she 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 130.02(1)(a)(ii) shall be returned to the person.
Marginal note:When assurance of compliance not complied with
130.05 (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance under paragraph 130.02(1)(a) has not complied with it, he or she may cause a notice of default to be served on the person to the effect that, unless a member of the Transportation Appeal Tribunal of Canada determines under section 130.07 that the assurance has been complied with, or an appeal panel of that Tribunal decides under section 130.1 that the assurance has been complied with,
Marginal note:Contents of notice
(2) The notice shall include the address at which, and the date — being 30 days after the day on which the notice is served — on or before which, a request for a review may be filed and the particulars concerning the procedure for requesting a review.
Marginal note:Effect of notice of default
(3) Once served with the notice of default, the person may not deduct from the amount set out in the notice any amount that the person spent under the assurance of compliance.
Marginal note:Manner of service
130.06 (1) A notice referred to in any of sections 130.02, 130.04, 130.05 and 130.18 is to be served
(a) in the case of an individual,
(i) by leaving a copy of it with the individual at any place or with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence or, in the case of an individual under the age of 18, with a parent or other person having custody of them or exercising parental authority over them, or
(ii) by sending a copy of it by registered mail, courier or electronic means to the individual’s last known address or usual place of residence; and
(b) in the case of a person other than an individual,
(i) by leaving a copy of it with their representative or with an officer or other individual who appears to control or manage the person’s or representative’s head office or place of business, or
(ii) by sending a copy of it by registered mail, courier or electronic means to their representative, to an individual referred to in subparagraph (i) or to the person’s or representative’s head office or place of business.
Marginal note:Proof of service
(2) Service may be proved by
(a) an acknowledgement of service signed by or on behalf of the person served, specifying the date and location of service;
(b) a certificate of service, signed by the person who effected the service, indicating the name of the person served and the means by which and day on which service was effected; or
(c) a record of electronic transmission setting out the date and time of transmission.
Marginal note:Date service effective
(3) In the absence of an acknowledgement of service or a certificate of service, service is considered effective,
(a) in the case of service by registered mail or courier, on the 10th day after the day on which the notice is sent, as indicated on the receipt issued by the postal or courier service; and
(b) in the case of service by electronic means, on the day on which it is sent, as indicated on the record of transmission.
Marginal note:Request for review
130.07 (1) A person served with a notice under subsection 130.05(1) may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal of Canada on application allows, file a written request for a review of the Minister’s decision made under that subsection with the Tribunal.
Marginal note:Time and place for review
(2) On receipt of the request, the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.
Marginal note:Review procedure
(3) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.
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) Despite subsection 130.01(5), a person does not have a defence by reason that the person exercised due diligence to comply with the assurance of compliance.
Marginal note:Determination by member
(6) At the conclusion of the review, the member who conducts the review shall confirm the Minister’s decision or determine that the person has complied with the assurance of compliance and shall without delay inform the parties of his or her decision.
Marginal note:Return of security
130.08 Any security deposited under subparagraph 130.02(1)(a)(ii) shall be returned to the person if
(a) a notice is served under subsection 130.05(1) and the person pays double the amount of the penalty set out in the assurance of compliance; or
(b) a member of the Transportation Appeal Tribunal of Canada determines under subsection 130.07(6), or an appeal panel of that Tribunal decides under subsection 130.1(3), that the assurance has been complied with.
Marginal note:Notice of violation — options
130.09 (1) A person served with a notice of violation under paragraph 130.02(1)(b) shall
(a) pay the amount of the penalty; or
(b) within 30 days after the day on which the notice is served or any further time that the Transportation Appeal Tribunal of Canada 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:Amount paid or no review requested
(2) If a review is not requested within the period referred to in paragraph (1)(b), or the amount of the penalty is paid, the person is considered to have committed the violation in respect of which the notice was served and any proceedings in respect of the violation are ended.
Marginal note:Time and place for review
(3) On receipt of a request filed under paragraph (1)(b), the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.
Marginal note:Review procedure
(4) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.
Marginal note:Burden of proof
(5) In every case when the facts of a violation are reviewed, 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 by member
(6) At the conclusion of the review, the member who conducts the review shall, without delay and in writing, inform the Minister and the person who is alleged to have committed a violation of the member’s determination.
Marginal note:Determination — no violation
(7) If the member determines that the person has not committed a violation, then, subject to section 130.1, no further proceedings under this Act may be taken against the person in respect of the alleged violation.
Marginal note:Determination — violation
(8) If the member determines that the person has committed a violation, then the member shall inform the Minister and the person, subject to subsection 130.01(2) and regulations made under paragraph 130.19(b), of the amount determined by the member to be payable to the Transportation Appeal Tribunal of Canada by or on behalf of the person and the period within which it is to be paid.
Marginal note:Right of appeal
130.1 (1) The Minister or the person who requested the review may, within 30 days after the day on which a determination is made under subsection 130.07(6) or 130.09(6), appeal the determination to the Transportation Appeal Tribunal of Canada.
Marginal note:Loss of right of appeal
(2) A party that does not appear at the review hearing is not entitled to appeal the determination, unless they establish that there was sufficient reason to justify their absence.
Marginal note:Disposition of appeal
(3) At the conclusion of the review, the appeal panel of the Transportation Appeal Tribunal of Canada that is assigned to hear the appeal shall
(a) in the case of a determination made under subsection 130.07(6), dismiss the appeal or allow the appeal and substitute its own decision; or
(b) in the case of a determination made under subsection 130.09(6), dismiss the appeal or allow the appeal and, subject to subsection 130.01(2) and regulations made under paragraph 130.19(b), substitute its own decision.
The appeal panel shall inform the parties of its decision without delay and specify the period within which any amount determined by the appeal panel to be payable to the Transportation Appeal Tribunal of Canada is to be paid.
Recovery of Debts
Marginal note:Debts due to Her Majesty
130.11 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Admiralty Court or any other court of competent jurisdiction:
(a) the amount of a penalty set out in a notice of violation referred to in paragraph 130.02(1)(b), from the expiry of the period specified in the notice for the payment of that amount, unless a review is requested under paragraph 130.09(1)(b);
(b) the amount referred to in paragraph 130.05(1)(a) that a person is liable to pay, from the time the notice of default referred to in subsection 130.05(1) is served, unless a review is requested under subsection 130.07(1);
(c) the amount of a penalty determined by a member under section 130.09 or an appeal panel under section 130.1, from the expiry of the period specified in the decision for the payment of that amount; and
(d) the amount of any costs and expenses referred to in subsection (3).
Marginal note:Limitation or prescription period
(2) Proceedings to recover a debt referred to in subsection (1) may be commenced no later than five years after the day on which the debt becomes payable.
Marginal note:Liability
(3) A person who is liable to pay an amount referred to in any of paragraphs (1)(a) to (c) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.
Marginal note:Certificate of default
130.12 (1) All or part of a debt referred to in subsection 130.11(1) in respect of which there is a default of payment may be certified by the Minister or the Transportation Appeal Tribunal of Canada, as the case may be.
Marginal note:Effect of registration
(2) On production to the Admiralty Court, a certificate made under subsection (1) is to be registered in that Court and, when registered, 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 costs and expenses attendant on its registration.
General
Marginal note:Party to violation committed by corporation
130.13 If a corporation commits a violation under this Act, any director, officer or agent or mandatary of the corporation that directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to and liable for the violation, whether or not the corporation has been identified or proceeded against under sections 130.02 to 130.12.
Marginal note:Violation by employee or agent or mandatary
130.14 A person is liable for a violation that is committed by the person’s employee or agent or mandatary, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against under this Act.
Marginal note:Limitation or prescription period
130.15 No notice of violation may be issued more than two years after the day on which the Minister becomes aware of the violation.
Marginal note:Certificate
130.16 A document that purports to have been issued by the Minister and that certifies the day on which he or she became aware of the violation 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 any evidence to the contrary, is evidence that the Minister became aware of the violation on that day.
Public Record
Marginal note:Notices of violation and of default
130.17 The Minister may keep a public record of notices of violation and notices of default, including, with respect to each violation or default, the nature of the violation or default, the name of the person who committed it and the amount of the penalty.
Marginal note:Notations removed
130.18 (1) Unless the Minister is of the opinion that it is not in the public interest to do so, the Minister shall remove from the public record of notices of violation and notices of default, on the fifth anniversary of the day on which a person has paid every penalty that they are liable to pay under this Act, the notice of violation or notice of default along with all the other information kept in the public record with respect to the violation or default.
Marginal note:Notice
(2) If the Minister is of the opinion that the removal is not in the public interest, he or she shall give notice of that fact to the person in writing and provide the grounds for that opinion.
Marginal note:Contents of notice
(3) The notice shall include the address at which, and the date — being 30 days after the day on which the notice is served — on or before which, a request for a review may be filed and the particulars concerning the procedure for requesting a review.
Marginal note:Request for review
(4) The person may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal of Canada on application may allow, file with the Tribunal a written request for a review of the Minister’s decision made under subsection (2).
Marginal note:Time and place for review
(5) On receipt of the request, the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.
Marginal note:Review procedure
(6) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.
Marginal note:Determination by member
(7) The member who conducts the review shall confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.
Marginal note:Right of appeal
(8) The person who requested the review may, within 30 days after the day on which a determination is made under subsection (7), appeal the determination to the Transportation Appeal Tribunal of Canada.
Marginal note:Loss of right of appeal
(9) If the person does not appear at the review hearing, the person is not entitled to appeal the determination, unless they establish that there was sufficient reason to justify their absence.
Marginal note:Disposition of appeal
(10) The appeal panel of the Transportation Appeal Tribunal of Canada that is assigned to hear the appeal shall dismiss it or refer the matter back to the Minister for reconsideration.
Regulations
Marginal note:Governor in Council
130.19 For the purposes of sections 130.01 to 130.18, the Governor in Council may, on the recommendation of the Minister, make regulations
(a) designating as a violation the contravention of any specified provision of this Act or of the regulations;
(b) establishing a penalty or a range of penalties in respect of a violation up to the maximum amount set out in subsection 130.01(2); and
(c) if a range of penalties is established by regulations made under paragraph (b), respecting the method of determining the amount payable as the penalty for the violation, including the criteria to be taken into account.
(2) Paragraph 130.01(1)(a) of the Act is replaced by the following:
(a) subsections 74.4(2) and (3), any of paragraphs 114.1(2)(a) to (d), subsections 114.2(1), 117.1(1) and (1.1), 117.3(2) and 118(1) and (1.1), section 118.1 and subsection 129(7);
- Date modified: