Canada Marine Act (S.C. 1998, c. 10)

Marginal note:Violations

129.02 Every person or ship that contravenes a provision or instruction designated under paragraph 129.03(a) commits a violation and is liable to an administrative monetary penalty not exceeding the maximum established by regulation.

Marginal note:Regulations

129.03 The Governor in Council may make regulations

• (a) designating any of the following as a provision or instruction whose contravention may be proceeded with as a violation, namely,

  • (i) any provision of this Act, other than paragraphs 59(1)(d) and 126(b),

  • (ii) any provision of the regulations, or

  • (iii) any instruction that may be given under the regulations;

• (b) establishing the maximum administrative monetary penalty for a particular violation, which may not exceed $5,000 in the case of an individual and $25,000 in the case of a corporation or ship;

• (c) establishing criteria to be taken into account in determining the penalty;

• (d) designating provisions or instructions the contravention of which, if continued on more than one day, constitutes a separate violation in respect of each day during which the violation is continued;

• (e) respecting the service of the notice that is required to be served under subsection 129.05(1), including the manner and proof of service and the circumstances under which the notice is deemed to be served; and

• (f) generally, for carrying out the purposes and provisions of this section and sections 129.04 to 129.17.

Marginal note:Criteria for penalty

129.04 The administrative monetary penalty imposed is, in each case, to be determined taking into account

• (a) the purpose of the penalty, which is to promote compliance with this Act and not to punish;

• (b) the seriousness of the violation, including the frequency and duration of the conduct;

• (c) the history of the person or ship that has been served with the notice of violation with respect to any prior violation or conviction under this Act within the five-year period immediately before the violation; and

• (d) any other criteria established under paragraph 129.03(c).

Marginal note:Notice of violation

• 129.05 (1) If an enforcement officer believes on reasonable grounds that a person or ship has committed a violation, the officer may issue, and shall cause to be served on the person or ship, a notice of violation.

• Marginal note:Content of notice

  (2) The Minister may establish the form and content of notices of violation, but each notice of violation shall

  • (a) name the person or ship believed to have committed the violation;

  • (b) identify the violation;

  • (c) set out the administrative monetary penalty that the person or ship is liable to pay;

  • (d) set out the particulars concerning the time for and manner of paying the penalty and the time for and manner of requesting a review; and

  • (e) inform the person or ship that, if they do not pay the penalty or request a review in accordance with the particulars set out in the notice, they will be deemed to have committed the violation and the penalty set out in the notice will be imposed.

Marginal note:Option

129.06 A person or ship that has been served with a notice of violation shall either pay the penalty set out in the notice or file with the Appeal Tribunal a written request for a review of the facts of the alleged violation or of the amount of the penalty.

Marginal note:Payment of penalty

129.07 If the person or ship pays the penalty in accordance with the particulars set out in the notice of violation, the person or ship is deemed to have committed the violation and proceedings in respect of the violation are ended.

Marginal note:Request for review

• 129.08 (1) A request for a review shall be filed with the Appeal Tribunal at the address set out in the notice of violation on or before the date specified in the notice or within any further time that the Appeal Tribunal, on application, may allow.

• Marginal note:Time and place for review

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

• Marginal note:Review procedure

  (3) The member of the Appeal Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship that filed the request 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 of establishing that a person or ship has committed the violation identified in the notice is on the Minister.

• Marginal note:Person or ship not compelled to testify

  (5) A person or ship that is alleged to have committed a violation is not required, and may not be compelled, to give any evidence or testimony in the matter.

Marginal note:Failure to pay penalty or request review

129.09 A person or ship that neither pays the penalty nor files a request for a review in accordance with the particulars set out in the notice of violation is deemed to have committed the violation.

Marginal note:Determination by Appeal Tribunal member

• 129.1 (1) At the conclusion of a review under section 129.08, the member of the Appeal Tribunal who conducts the review shall without delay inform the person or ship and the Minister of the member’s determination on the review.

• Marginal note:No violation

  (2) If the member determines that the person or ship has not committed the alleged violation, then, subject to section 129.11, no further proceedings may be taken against the person or ship in respect of the alleged violation.

• Marginal note:Violation

  (3) If the member determines that the person or ship has committed the alleged violation, then the member shall also inform the person or ship and the Minister of the administrative monetary penalty determined by the member to be payable in respect of the violation.

Marginal note:Right of appeal

• 129.11 (1) The Minister or a person or ship affected by a determination made under section 129.1 may, within 30 days after the determination, appeal it to the Appeal Tribunal.

• 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 Appeal Tribunal that is assigned to hear the appeal may dispose of the appeal by dismissing it or allowing it and, in allowing the appeal, the panel may substitute its decision for the determination appealed against.

• Marginal note:Obligation to inform

  (4) If the appeal panel finds that a person or ship has committed the alleged violation, the panel shall without delay inform the person or ship of the finding and of the administrative monetary penalty determined by the panel to be payable in respect of the violation.

Marginal note:Debts due to Her Majesty

129.12 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 facts of the alleged violation or the amount of the penalty is requested in accordance with the particulars set out in the notice of violation, the amount of a penalty set out in the notice, beginning on the day on which the notice was served;

• (b) the amount of a penalty determined by a member of the Appeal Tribunal under section 129.1 or decided by the appeal panel of the Appeal Tribunal under section 129.11, beginning on the day on which the respective determination or decision was made; and

• (c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).

Marginal note:Certificate

• 129.13 (1) All or part of a debt referred to in section 129.12 in respect of which there is a default of payment may be certified by the Appeal Tribunal at the request of the Minister.

• Marginal note:Judgments

  (2) On production in any superior court, a certificate made under subsection (1) is to be registered in that court and, when registered, has the same force and effect, and all proceedings may be taken on 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 in its registration.

Marginal note:Directors and officers of corporations

129.14 If a corporation commits a violation, every person who at the time of the commission of the violation was a director or officer of the corporation is a party to and liable for the violation unless the act or omission constituting the violation took place without the person’s knowledge or consent or the person exercised due diligence to prevent the commission of the violation.

Marginal note:Vicarious liability — acts of employees, agents and mandataries

129.15 A person or ship is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against, unless the person or ship establishes that the violation was committed without the person’s or ship’s knowledge or consent.

Marginal note:Violations not offences

129.16 For greater certainty, a violation is not an offence. Accordingly, section 126 of the Criminal Code does not apply in respect of a violation.

Marginal note:Due diligence available

129.17 Due diligence is a defence in a proceeding in respect of a violation.

General Provisions

Marginal note:How act or omission may be proceeded with

129.18 If an act or an omission can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Marginal note:Time limit

• 129.19 (1) No proceedings in respect of a violation or a prosecution for an offence may be commenced later than one year after the subject-matter of the proceedings became known to the Minister.

• Marginal note:Certification by Minister

  (2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter of any proceedings became known to the Minister, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof that the Minister became aware of the subject-matter on that day.