Wrecked, Abandoned or Hazardous Vessels Act (S.C. 2019, c. 1)
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Assented to 2019-02-28
PART 5Administration and Enforcement (continued)
Administrative Monetary Penalties (continued)
Assurances of Compliance and Notices of Violation (continued)
Marginal note:Deemed violation
92 (1) A person or vessel that enters into an assurance of compliance under paragraph 91(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 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 subsection 94(1), file a request with the Transportation Appeal 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 paragraph 97(1)(b) 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
93 If the Minister is satisfied that a person or vessel that has entered into an assurance of compliance under paragraph 91(1)(a) has complied with it, he or she 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 91(1)(a)(ii) must be returned to the person or vessel.
Marginal note:When assurance of compliance not complied with
94 (1) If the Minister is of the opinion that a person or vessel that has entered into an assurance of compliance under paragraph 91(1)(a) 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 95, or an appeal panel decides under section 98, that the assurance has been complied with,
Marginal note:Contents of notice
(2) The notice must 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: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:Manner of service
94.1 (1) A notice referred to in any of sections 91, 93, 94 and 108 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 fax or other electronic means to the individual’s last known address or usual place of residence;
(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 fax or other 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;
(c) in the case of a vessel,
(i) by delivering a copy of it personally to the master or another individual who is, or appears to be, in charge of the vessel,
(ii) by posting a copy of it on any conspicuous part of the vessel,
(iii) by leaving a copy of it with the owner or operator of the vessel, with the owner’s or operator’s representative or with an officer or other individual who appears to control or manage the owner’s, operator’s or representative’s head office or place of business, or
(iv) by sending a copy of it by registered mail, courier or fax or other electronic means to the vessel or to a person referred to in subparagraph (i) or (iii) or to their 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 or vessel 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 or vessel 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; or
(b) in the case of service by fax or other electronic means, on the day on which it is sent, as indicated on the record of transmission.
Marginal note:Request for review
95 (1) A person or vessel served with a notice under subsection 94(1) may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal on application may allow, 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 must appoint a time and place for the review and must notify the Minister and the person or vessel that filed the request of that time and place in writing.
Marginal note:Review procedure
(3) The member of the Transportation Appeal Tribunal who is assigned to conduct the review must provide the Minister and the person or vessel with an opportunity that is 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) Despite subsections 90(9) and (10), a person or vessel 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 by member
(6) At the conclusion of the review, the member who conducts the review may confirm the Minister’s decision or determine that the person or vessel has complied with the assurance of compliance and must without delay inform the parties of his or her decision.
Marginal note:Return of security
96 Any security deposited under subparagraph 91(1)(a)(ii) must be returned to the person or vessel if
(a) a notice is served under subsection 94(1) and the person or vessel pays double the amount of the penalty set out in the assurance of compliance; or
(b) a member determines under subsection 95(6), or an appeal panel decides under subsection 98(3), that the assurance has been complied with.
Marginal note:Notice of violation — options
97 (1) A person or vessel served with a notice of violation under paragraph 91(1)(b) must
(a) pay the amount of the penalty; or
(b) within 30 days after the day on which the notice was served or any further time that the Transportation Appeal Tribunal on application allows, file with the Transportation Appeal 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 is not requested within the period referred to in paragraph (1)(b), or the amount of the penalty is paid, the person or vessel is considered to have committed the violation in respect of which the notice was served and 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 must appoint a time and place for the review and must notify the Minister and the person or vessel that filed the request of that time and place in writing.
Marginal note:Review procedure
(4) The member of the Transportation Appeal Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity that is 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 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 by member
(6) At the conclusion of the review, the member who conducts the review must, without delay and in writing, inform the Minister and the person or vessel that is alleged to have committed a violation
(a) that the person or vessel has not committed a violation, in which case, subject to section 98, no further proceedings under this Act are to be taken against the person or vessel in respect of the alleged violation; or
(b) that the person or vessel has committed a violation and, subject to subsections 90(4) and (5) and regulations made under paragraph 109(b), of the amount determined by the member to be payable to the Transportation Appeal Tribunal by or on behalf of the person or vessel and the period within which it must be paid.
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