Marine Transportation Security Act (S.C. 1994, c. 40)

Act current to 2019-07-29 and last amended on 2008-06-18. Previous Versions

Administrative Penalties (continued)

Assurances of Compliance and Notices of Violation (continued)

Marginal note:When assurance of compliance not complied with

  •  (1) If the Minister is of the opinion that a person who 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 to the effect that, unless a member determines under section 37, or an appeal panel decides under section 40, that the assurance has been complied with,

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

    • (b) the security deposited under subparagraph 33(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

  • Marginal note:Contents of notice

    (2) A notice under subsection (1) shall 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:No set-off

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

  • 2001, c. 29, s. 59

Marginal note:Request for review

  •  (1) A person who is served with a notice under subsection 36(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 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.

  • 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: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) A person does not have a defence by reason that the person exercised all 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 has complied with the assurance of compliance.

  • 2001, c. 29, s. 59

Marginal note:Return of security

 Any security deposited under subparagraph 33(1)(a)(ii) shall be returned to the person if

  • (a) the person pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice under subsection 36(1); or

  • (b) a member determines under subsection 37(6), or an appeal panel decides under subsection 40(3), that the assurance has been complied with.

  • 2001, c. 29, s. 59

Marginal note:Notice of violation

  •  (1) A person served with a notice of violation under paragraph 33(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 is deemed to have committed the violation in respect of which the notice was served.

  • Marginal note:Time and place for review

    (3) On receipt of a request filed under paragraph (1)(b), 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.

  • Marginal note:Review procedure

    (4) 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:Burden of proof

    (5) 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

    (6) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 51(c), substitute his or her own determination.

  • 2001, c. 29, s. 59

Marginal note:Right of appeal

  •  (1) The Minister or the person who requested the review of the decision may appeal a determination made under subsection 37(6) or 39(6) to the Tribunal within thirty 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 subsection 37(6), dismiss the appeal or allow the appeal and substitute its own decision; or

    • (b) in the case of a determination made under subsection 39(6), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 51(c), substitute its own decision.

  • 2001, c. 29, s. 59

Choice of Proceedings

Marginal note:How contravention may be proceeded with

 If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.

  • 2001, c. 29, s. 59

Recovery of Debts

Marginal note:Debts due to Her Majesty

 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 a penalty is requested under subsection 39(1), the amount of the penalty, from the time the notice of violation that sets out the penalty is served;

  • (b) the amount of a penalty set out in a notice of default referred to in subsection 36(1), from the time the notice under that subsection is served;

  • (c) the amount of a penalty determined by a member under section 39, or decided by an appeal panel under section 40, 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).

  • 2001, c. 29, s. 59

Marginal note:Certificate

  •  (1) All or part of a debt referred to in section 42 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:Registration of certificate

    (2) On production to the Federal Court, a certificate shall be registered. When it is registered, a certificate 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 reasonable costs and charges attendant on its registration.

  • 2001, c. 29, s. 59

Rules of Law about Violations

Marginal note:Violations are not offences

 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

  • 2001, c. 29, s. 59

Marginal note:Defence

 For greater certainty, no person is liable for the commission of a violation if the person exercised all due diligence to prevent the commission.

  • 2001, c. 29, s. 59
 
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