Budget Implementation Act, 2019, No. 1 (S.C. 2019, c. 29)

Enforcement

Designation of Authorized Persons

Marginal note:Designation by Minister

46.1 The Minister may designate persons or classes of persons as authorized persons for the purposes of the administration and enforcement of this Act and may limit in any manner that he or she considers appropriate the powers that the authorized persons may exercise under this Act.

Marginal note:Certificate of designation

46.11 The Minister shall provide every authorized person with a certificate of their designation and, if the authorized person’s powers are limited under section 46.1, the certificate is to specify the powers that the authorized person may exercise.

Compliance Measures

Marginal note:Authority to enter

• 46.12 (1) An authorized person may, for a purpose related to verifying compliance or preventing non-compliance with this Act, enter a place, including a ship, in which the authorized person has reasonable grounds to believe that

  • (a) there is anything to which this Act applies;

  • (b) there has been carried on, is being carried on or is likely to be carried on any activity in respect of which this Act applies; or

  • (c) there is any book, record, electronic data or other document relating to the application of this Act.

• Marginal note:Powers on entry

  (2) The authorized person may, for that purpose,

  • (a) examine the place and anything in the place;

  • (b) use any means of communication or cause it to be used;

  • (c) use any computer system or data processing system, or cause it to be used, to examine data contained in or available to it;

  • (d) prepare or cause to be prepared any document, in the form of a printout or other intelligible output, from the data;

  • (e) direct any person to produce for inspection, or for the purposes of making copies or taking extracts, any document;

  • (f) use any copying equipment or cause it to be used;

  • (g) conduct tests or analyses;

  • (h) take measurements or samples;

  • (i) take photographs or make recordings or sketches;

  • (j) remove anything for the purposes of examination, testing or copying;

  • (k) direct any person to put anything into operation or to cease operating it;

  • (l) prohibit or limit access to all or part of the place or to anything in the place; and

  • (m) direct any person to establish their identity to the authorized person’s satisfaction.

• Marginal note:Powers — direction to provide information

  (3) An authorized person may, for a purpose related to verifying compliance or preventing non-compliance with this Act,

  • (a) direct any person to provide any information; and

  • (b) direct a ship, if it is about to enter or is within Canadian waters, to provide any information.

• Marginal note:Powers — direction to ship

  (4) If an authorized person has reasonable grounds to believe that an offence under this Act has been committed, they may direct a ship that is about to enter or is within Canadian waters

  • (a) to stop;

  • (b) to proceed through those waters, or to proceed to the place within those waters that they may specify, by the route and in the manner that they may specify, and to moor, anchor or remain there for any reasonable period that they may specify;

  • (c) to proceed out of those waters by the route and in the manner that they may specify; or

  • (d) to remain outside those waters.

Marginal note:Dwelling house or living quarters

• 46.13 (1) An authorized person shall not enter a dwelling house or living quarters under subsection 46.12(1) without the consent of the occupant except under the authority of a warrant issued under subsection (2), unless the authorized person has reasonable grounds to believe that the dwelling house or living quarters are not being lived in.

• Marginal note:Authority to issue warrant

  (2) On ex parte application, a justice of the peace may issue a warrant authorizing an authorized person to enter a dwelling house or living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

  • (a) the dwelling house or living quarters are a place referred to in subsection 46.12(1);

  • (b) entry to the dwelling house or living quarters is necessary for a purpose related to verifying compliance or preventing non-compliance with this Act; and

  • (c) entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

• Marginal note:Use of force

  (3) In executing a warrant to enter a dwelling house or living quarters, an authorized person may use force only if the use of force has been specifically authorized in the warrant and they are accompanied by a peace officer.

• Marginal note:Telewarrant

  (4) If an authorized person believes that it would not be practicable to appear personally to make an application for a warrant under subsection (2), a warrant may be issued by telephone or other means of telecommunication on information submitted by telephone or other means of telecommunication, and section 487.1 of the Criminal Code applies for that purpose, with any necessary modifications.

Marginal note:Disposition of sample

• 46.14 (1) An authorized person who takes a sample under paragraph 46.12(2)(h) may dispose of it in any manner that they consider appropriate or may submit it for analysis or examination to any person the Minister considers appropriate.

• Marginal note:Certificate or report

  (2) A person that has made an analysis or examination under subsection (1) may issue a certificate or report that sets out the results of the analysis or examination.

• Marginal note:Certificate or report admissible in evidence

  (3) Subject to subsections (4) and (5), the certificate or report is admissible in evidence in any proceeding related to a contravention of this Act and, in the absence of any evidence to the contrary, is proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

• Marginal note:Attendance of person

  (4) The party against which the certificate or report is produced may, with leave of the court or of the Tribunal, require for the purposes of cross-examination the attendance of the person that issued it.

• Marginal note:Notice

  (5) The certificate or report may be admitted in evidence only if the party that intends to produce it has given to the party against which it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.

Marginal note:Return of anything removed

• 46.15 (1) Anything removed under paragraph 46.12(2)(j) is to be returned as soon as feasible after it is no longer required for the purpose for which it was taken unless

  • (a) the thing, in the authorized person’s opinion, is no longer useful; or

  • (b) the owner is unknown or cannot be located.

• Marginal note:Thing not returned

  (2) An authorized person may dispose of anything that is not returned under subsection (1) in the manner that they consider appropriate, and any proceeds realized from the disposition are to be paid to the Receiver General.

Marginal note:Interference

46.16 Unless authorized by an authorized person, it is prohibited for a person to knowingly move, alter or interfere in any way with a sample taken under paragraph 46.12(2)(h) or anything removed under paragraph 46.12(2)(j).

Marginal note:Seizure

46.17 For the purpose referred to in subsection 46.12(1), an authorized person may seize and detain anything

• (a) by means of which or in relation to which they have reasonable grounds to believe that any provision of this Act or of the regulations has been contravened; or

• (b) that they have reasonable grounds to believe will afford evidence in respect of a contravention of any provision of this Act or of the regulations.

Marginal note:Custody of thing seized

46.18 If an authorized person seizes a thing, the authorized person, or any person that they may designate, shall retain custody of the thing, subject to any order made under section 490 of the Criminal Code.

Marginal note:Liability for costs and expenses

46.19 If there is more than one owner of a thing seized or forfeited under this Act, the owners are jointly and severally, or solidarily, liable for the amount due or payable in respect of the costs and expenses resulting from the seizure, forfeiture or disposition of the thing in excess of any proceeds of disposition of the thing that have been forfeited to Her Majesty in right of Canada under this Act.

Marginal note:Detention order

• 46.2 (1) An authorized person may order the detention of a ship if the authorized person has reasonable grounds to believe that an offence under this Act has been committed by or in respect of the ship.

• Marginal note:Order in writing

  (2) The detention order is to be in writing and be addressed to every person empowered to grant clearance to the ship.

• Marginal note:Service of detention order notice

  (3) Subject to subsection (4), notice of a detention order is to be served

  • (a) by delivering a copy of the notice to the authorized representative of the ship or, in the absence of an authorized representative, a person in charge of the ship; or

  • (b) if service cannot reasonably be effected in the manner provided in paragraph (a), by posting a copy of the notice on any conspicuous part of the ship.

• Marginal note:Public notice of detention order

  (4) If service cannot reasonably be effected in the manner provided in paragraph (3)(a) or (b), public notice of the detention order is to be given.

• Marginal note:Contents of notice

  (5) The notice is to indicate

  • (a) the measures that are to be taken for the detention order to be rescinded; and

  • (b) the amount and form of any security that is to be deposited with the Minister.

• Marginal note:Notification of foreign state

  (6) If the ship that is subject to a detention order is registered in a foreign state, that state is to be notified that the order was made.

• Marginal note:Movement of ship prohibited

  (7) Subject to subsection 46.22(1), it is prohibited for a person to move a ship that is subject to a detention order.

• Marginal note:Granting clearance prohibited

  (8) It is prohibited for a person to which a detention order is addressed, after they have received notice of the order, to grant clearance to the ship that is subject to the order, unless they have been notified that the order has been rescinded.

• Marginal note:Rescission of order

  (9) An authorized person may rescind a detention order if, in their opinion, it would be in the public interest to do so. However, an authorized person shall rescind a detention order if they are satisfied that the measures indicated in the notice referred to in subsection (5) have been taken and, if applicable, security in the amount and form indicated in the notice has been deposited with the Minister.

• Marginal note:Notice of rescission

  (10) An authorized person who rescinds a detention order shall notify, in the form and manner specified by the Minister, the persons referred to in subsection (2) and the persons on which the notice was served under paragraph (3)(a) of the rescission.

• Marginal note:Liability for costs and expenses

  (11) The authorized representative of a ship that is subject to a detention order or, in the absence of an authorized representative, the owner of that ship is liable for all costs and expenses resulting from the detention.

• Marginal note:Return of security

  (12) If, in the Minister’s opinion, the matter has been resolved, the Minister

  • (a) may apply the security to reimburse Her Majesty in right of Canada, in whole or in part, for any of the costs and expenses resulting from the detention of the ship or to pay to Her Majesty in right of Canada, in whole or in part, any fine or penalty imposed under this Act; and

  • (b) shall return the security, or any part of it that remains if it is applied under paragraph (a), if all costs and expenses and any fine or penalty imposed under this Act have been paid.

Marginal note:Interference with service of notice

46.21 It is prohibited for a person to knowingly interfere with the service of a notice of a detention order.

Marginal note:Permission or direction to move ship

• 46.22 (1) The Minister may, in respect of a ship that is subject to a detention order,

  • (a) on application made by the authorized representative of the ship or, in the absence of an authorized representative, the person in charge of the ship, permit the ship to be moved in accordance with the Minister’s directions; and

  • (b) on application made by the owner of a dock — or by the person in charge of a place — at which the detained ship is situated, direct the authorized representative or person in charge of the ship to move it in accordance with the Minister’s directions.

• Marginal note:Non-compliance with paragraph (1)(b)

  (2) If a person does not comply with a direction given to them under paragraph (1)(b) and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the ship, the Minister may authorize the applicant to move the ship in accordance with the Minister’s directions and at the expense of the authorized representative or, in the absence of an authorized representative, the owner.

Provisions Related to Entry

Marginal note:Accompanying person

• 46.23 (1) If an authorized person enters a place under subsection 46.12(1), they may be accompanied by any other person whom they believe is necessary to help them in the exercise of their powers or the performance of their duties or functions under this Act.

• Marginal note:Entry on private property

  (2) An authorized person and a person accompanying them may enter private property – other than a dwelling house or living quarters – and pass through it, including with vehicles and equipment, in order to gain entry to the place referred to in subsection 46.12(1).

Marginal note:Duty to assist

46.24 The owner of a place that is entered by an authorized person under subsection 46.12(1), the person in charge of the place and every person in it shall give all assistance to the authorized person that is reasonably required to enable the authorized person to exercise their powers or perform their duties or functions under this Act and shall provide the authorized person with any document or information, or access to any data, that they may reasonably require.

Obstruction

Marginal note:Obstruction

46.25 It is prohibited for a person to knowingly give false or misleading information either orally or in writing to, or otherwise knowingly obstruct or hinder, an authorized person who is exercising powers or performing duties or functions under this Act.

Administrative Monetary Penalties

Marginal note:Violation — person

• 46.26 (1) Every person that contravenes a provision or direction that is designated as a violation in the regulations commits a violation and is liable to a penalty.

• Marginal note:Violation — ship

  (2) Every ship that contravenes any of the following commits a violation and is liable to a penalty:

  • (a) a direction given under paragraph 46.12(3)(b) or subsection 46.12(4); or

  • (b) a provision the contravention of which is designated as a violation by the regulations.

• Marginal note:Continuing violation

  (3) A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.

• Marginal note:Penalty

  (4) The maximum amount payable as the penalty for a violation set out in subsection (1) or (2) is $250,000 and the total maximum amount payable for a related series or class of violations is the amount set out in the regulations.

• Marginal note:Purpose of penalty

  (5) The purpose of the penalty is to promote compliance with this Act and not to punish.

• Marginal note:Clarification

  (6) 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

  (7) 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 — person

  (8) A person is not to be found to be liable for a violation under this Act if they establish that they exercised due diligence to prevent its commission.

• Marginal note:Due diligence defence — ship

  (9) A ship is not to be found to be liable for a violation under this Act if the person that committed the act or omission that constitutes the violation establishes that they exercised due diligence to prevent its commission.

Marginal note:Assurance of compliance or notice of violation

• 46.27 (1) If the Minister has reasonable grounds to believe that a person or ship has committed a violation, the Minister may

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

    • (i) identifies the violation and provides that the person or ship will comply with the provision to which the violation relates within the period, and be subject to the 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 amount of the penalty that the person or ship 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 or ship, a notice of violation that names the person or ship, identifies the violation and sets out

    • (i) the amount of the penalty that the person or ship 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 place 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 or ship is unable to comply with the assurance of compliance for reasons beyond the person’s or ship’s control.

• Marginal note:Short-form description

  (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

• 46.28 (1) A person or ship that enters into an assurance of compliance under paragraph 46.27(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 ship 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 46.3(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 paragraph 46.33(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

46.29 If the Minister is of the opinion that a person or ship that has entered into an assurance of compliance under paragraph 46.27(1)(a) has complied with it, he or she shall cause a notice to that effect to be served on the person or ship and, on the service of the notice,

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

• (b) any security deposited under subparagraph 46.27(1)(a)(ii) is to be returned to the person or ship.

Marginal note:When assurance of compliance not complied with

• 46.3 (1) If the Minister is of the opinion that a person or ship that has entered into an assurance of compliance under paragraph 46.27(1)(a) has not complied with it, the Minister may cause a notice of default to be served on the person or ship to the effect that, unless a member determines under section 46.31, or an appeal panel decides under section 46.34, that the assurance has been complied with,

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

  • (b) the security deposited under subparagraph 46.27(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) The notice of default is to include the place 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 or compensation

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

Marginal note:Request for review

• 46.31 (1) A person or ship served with a notice under subsection 46.3(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the Minister’s decision made under that subsection.

• Marginal note:Date, time and place for review

  (2) On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship 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 ship did not comply with the assurance of compliance referred to in the notice. The person is not required, and is not to be compelled, to give any evidence or testimony in the matter.

• Marginal note:Defence not available

  (5) Despite subsections 46.26(8) and (9), a person or ship does not have a defence by reason that the person or ship 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 ship has complied with the assurance of compliance and shall without delay inform the parties of his or her decision.

Marginal note:Return of security

46.32 Any security deposited under subparagraph 46.27(1)(a)(ii) is to be returned to the person or ship if

• (a) a notice is served under subsection 46.3(1) and the person or ship pays double the amount of the penalty set out in the assurance of compliance; or

• (b) a member determines under subsection 46.31(6), or an appeal panel decides under subsection 46.34(3), that the assurance has been complied with.

Marginal note:Notice of violation — option

• 46.33 (1) A person or ship served with a notice of violation under paragraph 46.27(1)(b) may

  • (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 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 is not requested within the period referred to in paragraph (1)(b) or the amount of the penalty is paid, the person or ship is considered to have committed the violation in respect of which the notice is served and proceedings in respect of the violation are ended.

• Marginal note:Date, time and place for review

  (3) On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, 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 or ship 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 ship committed the violation referred to in the notice. The person is not required, and is not to 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 or ship

  • (a) that the person or ship has not committed a violation, in which case, subject to section 46.34, no further proceedings under this Act are to be taken against the person or ship in respect of the alleged violation; and

  • (b) that the person or ship has committed a violation, in which case, subject to subsections 46.26(4) and (5) and the regulations, the member shall inform the Minister and the person or ship of the amount determined by the member to be payable to the Tribunal by or on behalf of the person or ship and the period within which it is to be paid.

Marginal note:Right of appeal

• 46.34 (1) The Minister or the person or ship that requested the review may, within 30 days after the day on which a determination is made under subsection 46.31(6) or 46.33(6), appeal the determination to the Tribunal.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at the 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) At the conclusion of the review, the appeal panel of the Tribunal that is assigned to hear the appeal may

  • (a) in the case of a determination made under subsection 46.31(6), dismiss the appeal, or allow the appeal and substitute its own decision; or

  • (b) in the case of a determination made under subsection 46.33(6), dismiss the appeal, or allow the appeal and, subject to subsections 46.26(4) and (5) and the regulations, substitute its own decision.

• Marginal note:Notice of decision

  (4) The appeal panel shall inform the parties of its decision without delay and shall specify the period within which any amount determined by the appeal panel to be payable to the Tribunal is to be paid.

Recovery of Debts

Marginal note:Debts due to Her Majesty

• 46.35 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal 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 46.27(1)(b), from the expiry of the period specified in the notice for the payment of that amount, unless a review is requested under subsection 46.33(1);

  • (b) the amount of a penalty set out in a notice of default referred to in subsection 46.3(1), from the date the notice is served, unless a review is requested under subsection 46.31(1);

  • (c) the amount of a penalty determined by a member under section 46.33, or decided by an appeal panel under section 46.34, 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 or ship that is liable to pay an amount referred to in paragraph (1)(a), (b) or (c) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.

Marginal note:Certificate of default

• 46.36 (1) All or part of a debt referred to in subsection 46.35(1) 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:Effect of registration

  (2) On production to the Federal 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:Manner of service

• 46.37 (1) A notice referred to in any of sections 46.27, 46.29, 46.3 and 46.45 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; and

  • (c) in the case of a ship,

    • (i) by delivering a copy of it personally to the master or another individual who is, or appears to be, in charge of the ship,

    • (ii) by posting a copy of it on any conspicuous part of the ship,

    • (iii) by leaving a copy of it with the owner or operator of the ship, 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 ship 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 the person served or on behalf of the person or ship 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 ship 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 fax or other electronic means, on the day on which it is sent, as indicated on the record of transmission.

Marginal note:Proof of violation by ship

46.38 It is sufficient proof that a ship has committed a violation to establish that the act or omission that constitutes the violation was committed by a person in charge of the ship, whether or not the person has been identified.

Marginal note:Party to violation committed by ship

• 46.39 (1) If a ship commits a violation under this Act and a person in charge of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the violation, that person is a party to and liable for the violation, whether or not the ship has been proceeded against under sections 46.27 to 46.36.

• Marginal note:Party to violation committed by corporation

  (2) If a corporation commits a violation under this Act, any director, officer or agent or mandatary of the corporation who 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 46.27 to 46.36.

Marginal note:Violation by employee or agent or mandatary

46.4 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:Direction to ship

46.41 For the purposes of a proceeding against a ship for a violation in respect of a contravention of a direction given under this Act, a direction is deemed to have been given to the ship if

• (a) it is given to the authorized representative or a person in charge of the ship; or

• (b) in the case of a direction that cannot be given to any person referred to in paragraph (a) despite reasonable efforts having been made to do so, a copy of it is posted on any conspicuous part of the ship.

Marginal note:Limitation or prescription period

46.42 A notice of violation may be issued no later than two years after the day on which an authorized person becomes aware of the violation.

Marginal note:Certificate

46.43 A document that purports to have been issued by an authorized person and that certifies the day on which they became aware of a 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 authorized person became aware of the violation on that day.

Public Record

Marginal note:Disclosure of notices of violation and default

46.44 The Minister shall 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 or ship that committed it and the amount of the penalty.

Marginal note:Notations removed

• 46.45 (1) Unless the Minister is of the opinion that it is not in the public interest to do so, on the fifth anniversary of the day on which a person or ship has paid every penalty that the person or ship is liable to pay under this Act, the Minister shall remove a notice of violation or notice of default from the public record of notices of violation or default along with all the other information kept in the public record with respect to the violation or default.

• Marginal note:Duty to notify

  (2) If the Minister is of the opinion that removal of a notation is not in the public interest, he or she shall give notice of that fact to the person or ship in writing, and provide the grounds for that opinion.

• Marginal note:Contents of notice

  (3) The notice is to include the place 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 or ship may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the Minister’s decision made under subsection (2).

• Marginal note:Date, time and place for review

  (5) On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

• Marginal note:Review procedure

  (6) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person or ship with an opportunity that is 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 or ship that requested the review may, within 30 days after the day on which a determination is made under subsection (7), appeal the determination to the Tribunal.

• Marginal note:Loss of right of appeal

  (9) A person or ship that does not appear at the 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

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

Regulations

Marginal note:Regulations

46.46 The Governor in Council may make regulations

• (a) designating as a violation the contravention of

  • (i) any specified provision of this Act or of the regulations, or

  • (ii) any direction given under any specified provision of this Act;

• (b) establishing a penalty, or a range of penalties, in respect of a violation, up to the maximum amount set out in subsection 46.26(4);

• (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;

• (d) setting out the total maximum amount payable for a related series or class of violations;

• (e) respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be reduced in whole or in part; and

• (f) respecting persons that may request a review on behalf of a ship in relation to an alleged violation by the ship.