PART IVInsurable Earnings and Collection of Premiums (continued)
Payment of Premiums (continued)
85 (1) The Minister may assess an employer for an amount payable by the employer under this Act, or may reassess the employer or make such additional assessments as the circumstances require, and the expression “assessment” when used in this Act with reference to any action so taken by the Minister under this section includes a reassessment or an additional assessment.
Marginal note:Notice of assessment and liability of employer
(2) After assessing an employer for an amount payable under this Act, the Minister shall send the employer a notice of assessment, and when the notice is sent the assessment is valid and binding subject to being vacated or varied on appeal under this Act, and the employer is liable to pay the amount to Her Majesty without delay.
Marginal note:Limitation on assessments
(3) No assessment, reassessment or additional assessment of an amount payable by an employer under this Act may be made by the Minister under this section after three years have elapsed after the end of the year in which any premium in relation to which that amount is payable should have been paid, unless the employer has made a misrepresentation or committed fraud in filing a return or in supplying information about the return under this Part.
Marginal note:Mailing or sending date
(4) The day of mailing or sending, as the case may be, of a notice of assessment described in subsection (2) is, in the absence of any evidence to the contrary, deemed to be the day appearing from the notice to be the date of the notice unless called into question by the Minister or by a person acting for the Minister or for Her Majesty.
Marginal note:Date electronic notice sent
(5) For the purposes of this Act, if a notice or other communication in respect of a person or partnership is made available in electronic format such that it can be read or perceived by a person or a computer system or other similar device, the notice or other communication is presumed to be sent to the person or partnership and received by the person or partnership on the date that an electronic message is sent, to the electronic address most recently provided before that date by the person or partnership to the Minister for the purposes of this subsection, informing the person or partnership that a notice or other communication requiring the person or partnership’s immediate attention is available in the person or partnership’s secure electronic account. A notice or other communication is considered to be made available if it is posted by the Minister in the person or partnership’s secure electronic account and the person or partnership has authorized that notices or other communications may be made available in this manner and has not before that date revoked that authorization in a manner specified by the Minister.
- 1996, c. 23, s. 85
- 2010, c. 25, s. 71
86 (1) All premiums, interest, penalties and other amounts payable by an employer under this Act are debts due to Her Majesty and are recoverable in the Federal Court or any other court of competent jurisdiction or in any other manner provided for by this Act.
Marginal note:Amounts deducted and not remitted
(2) Where an employer has deducted an amount from the remuneration of an insured person as or on account of any employee’s premium required to be paid by the insured person but has not remitted the amount to the Receiver General, the employer is deemed, notwithstanding any security interest (as defined in subsection 224(1.3) of the Income Tax Act) in the amount so deducted, to hold the amount separate and apart from the property of the employer and from property held by any secured creditor (as defined in subsection 224(1.3) of the Income Tax Act) of that employer that but for the security interest would be property of the employer, in trust for Her Majesty and for payment to Her Majesty in the manner and at the time provided under this Act.
Marginal note:Extension of trust
(2.1) Notwithstanding the Bankruptcy and Insolvency Act (except sections 81.1 and 81.2 of that Act), any other enactment of Canada, any enactment of a province or any other law, where at any time an amount deemed by subsection (2) to be held by an employer in trust for Her Majesty in the manner and at the time provided under this Act, property of the employer and property held by any secured creditor (as defined in subsection 224(1.3) of the Income Tax Act) of that employer that but for a security interest (as defined in subsection 224(1.3) of the Income Tax Act) would be property of the employer, equal in value to the amount so deemed to be held in trust is deemed
(a) to be held, from the time the amount was deducted by the employer, separate and apart from the property of the employer, in trust for Her Majesty whether or not the property is subject to such a security interest, and
(b) to form no part of the estate or property of the employer from the time the amount was so deducted, whether or not the property has in fact been kept separate and apart from the estate or property of the employer and whether or not the property is subject to such a security interest
and is property beneficially owned by Her Majesty notwithstanding any security interest in such property or in the proceeds thereof, and the proceeds of such property shall be paid to the Receiver General in priority to all such security interests.
Marginal note:Meaning of security interest
(2.2) For the purposes of subsections (2) and (2.1), a security interest does not include a prescribed security interest.
Marginal note:Certificate before distribution
(3) Before distributing any property over which a responsible representative has control in that capacity, the responsible representative shall obtain a certificate from the Minister certifying the payment, or acceptance by the Minister of security for payment, of all amounts
(a) for which an employer is liable under this Act up to and including the date of distribution; and
(b) for the payment of which the responsible representative is or can reasonably be expected to become liable in that capacity.
Marginal note:Personal liability
(4) If the responsible representative distributes to one or more persons property over which the responsible representative has control in that capacity, without obtaining the certificate, the responsible representative is personally liable for the payment of the amounts to the extent of the value of the property distributed and the Minister may assess the responsible representative for the amounts in the same manner and with the same effect as an assessment made under section 85.
(5) If the Minister considers it advisable in a particular case, the Minister may accept security for payment of premiums by way of mortgage, hypothec or other charge of any kind whatever on property of the employer or any other person or by way of guarantee from other persons.
Marginal note:Trustee in bankruptcy
(6) If an employer has become bankrupt, the trustee in bankruptcy is deemed to be the agent of the bankrupt for the purposes of this Act.
Definition of responsible representative
(7) For the purposes of this section, responsible representative means a person, other than a trustee in bankruptcy, who is an assignee, liquidator, receiver, receiver-manager, administrator, executor, liquidator of the succession or any other like person administering, winding up, controlling or otherwise dealing with a property, business or estate of another person.
- 1996, c. 23, s. 86
- 1998, c. 19, s. 266
- 2001, c. 4, s. 77(F)
Marginal note:Records and books
87 (1) An employer paying remuneration to a person they employ in insurable employment shall keep records and books of account at the employer’s place of business or residence in Canada, or at such other place as may be designated by the Minister, in such form and containing such information, including the Social Insurance Number of each insured person, as will enable the determination of any premiums payable under this Act or any premiums or other amounts that should have been deducted or paid.
Marginal note:Specification of required books and records
(2) If the employer has failed to keep adequate records and books of account, the Minister may require the employer to keep such records and books of account as the Minister may specify, and the employer shall keep the required records and books of account.
Marginal note:Retention for six years
(3) The employer shall retain the records and books of account and every account and voucher necessary to verify the information contained in them for six years after the year for which they are kept, or until written permission for their prior disposal is given by the Minister.
Marginal note:Electronic records
(3.1) Every employer required by this section to keep records who does so electronically shall retain them in an electronically readable format for the retention period referred to in subsection (3).
(3.2) The Minister may, on such terms and conditions as are acceptable to the Minister, exempt an employer or a class of employers from the requirement in subsection (3.1).
Marginal note:Retention for ruling or appeal
(4) If the employer or one of their employees is subject to a ruling under section 90 or has made an appeal to the Minister under section 91, the employer shall retain every record, book of account, account and voucher necessary for dealing with the ruling or the appeal until the ruling is made or the appeal is disposed of and any further appeal is disposed of or the time for filing a further appeal has expired.
- 1996, c. 23, s. 87
- 1998, c. 19, s. 267
88 (1) An authorized person may, at any reasonable time, for any purpose relating to the administration or enforcement of this Act, inspect, audit or examine any document that relates or may relate to the information that is or should be contained in the records or books of account or to the amount of any premium payable under this Act and, for those purposes, the authorized person may
(a) subject to subsection (2), enter any premises or place where any records or books of account are or should be kept; and
(b) require the owner, occupant or person in charge of the premises or place to give the authorized person all reasonable assistance and to answer all proper questions relating to the administration or enforcement of this Act and, for that purpose, require the owner, occupant or person in charge to attend at the premises or place with the authorized person.
Marginal note:Warrant required to enter dwelling-house
(2) If the premises or place is a dwelling-house, an authorized person may only enter with the consent of the occupant or under the authority of a warrant issued under subsection (3).
Marginal note:Warrant or order
(3) If, on ex parte application by the Minister, a judge is satisfied by information on oath that
(a) there are reasonable grounds for believing that a dwelling-house is a premises or place mentioned in subsection (1),
(b) entry into the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, and
(c) entry into the dwelling-house has been refused or there are reasonable grounds for believing that entry will be refused,
the judge may issue a warrant authorizing an authorized person to enter the dwelling-house subject to such conditions as may be specified in the warrant.
Marginal note:Order for access to documents, etc.
(4) If the judge is not satisfied that entry into the dwelling-house is necessary for any purpose relating to the administration or enforcement of this Act, the judge may
(a) order the occupant of the dwelling-house to provide an authorized person with reasonable access to any document that is or should be kept in the dwelling-house, and
(b) make such other order as is appropriate in the circumstances to carry out the purposes of this Act,
to the extent that access has been or may be expected to be refused and that the document is or may be expected to be kept in the dwelling-house.
Marginal note:Requirement to provide documents and information
(5) Notwithstanding any other provision of this Act, but subject to subsection (6), the Minister may for any purpose relating to the administration or enforcement of this Part, by notice served personally or by confirmed delivery service, require that any person provide, within such reasonable time as is stated in the notice,
(a) any information or additional information, including any information return or supplementary return; or
(b) any document.
Marginal note:Unnamed persons
(6) The Minister shall not impose on any person, in this section referred to as a “third party”, a requirement under subsection (5) to provide information or any document relating to one or more unnamed persons unless the Minister first obtains the authorization of a judge under subsection (7).
Marginal note:Judicial authorization
(7) On ex parte application by the Minister, a judge may, subject to such conditions as the judge considers appropriate, authorize the Minister to impose on a third party a requirement under subsection (5) relating to an unnamed person or more than one unnamed person, in this section referred to as the “group”, if the judge is satisfied by information on oath that
(a) the person or group is ascertainable;
(b) the requirement is made to verify compliance by the person or persons in the group with any duty or obligation under this Part;
(c) it is reasonable to expect, based on any grounds, including statistical or other information or past experience relating to the group or any other persons, that the person or any person in the group may have failed or may be likely to fail to provide information that is sought under the requirement or to otherwise comply with this Act; and
(d) the information or document is not otherwise more readily available.
Marginal note:Service of authorization
(8) If the authorization is granted, it shall be served together with the notice mentioned in subsection (5).
Marginal note:Review of authorization
(9) If the authorization is granted, a third party on whom it is served may, within 15 days after it is served, apply for a review of the authorization to the judge who granted it or, if the judge is unable to act, to another judge of the same court.
Marginal note:Powers on review
(10) On hearing the application, a judge may cancel the authorization previously granted if the judge is not then satisfied that the conditions in paragraphs (7)(a) to (d) have been met and the judge may confirm or vary the authorization if satisfied that those conditions have been met.
Marginal note:Additional remedy
(11) If a person is found guilty of an offence under subsection 106(2) for failing to comply with a requirement under subsection (5), the court may make such order as it considers proper in order to enforce compliance with the requirement.
Marginal note:Copies as evidence
(12) If a document is inspected, audited, examined or provided in accordance with this section,
(a) the person by whom it is inspected, audited, or examined or to whom it is provided, or any officer of the Canada Revenue Agency, may make one or more copies, or have them made; and
(b) any document appearing to be certified by the Minister or an authorized person to be a copy made under this subsection is evidence of the nature and content of the original document and has the same probative force as the original document would have if it were proven in the ordinary way.
(13) No person shall hinder, molest or interfere with any person doing anything that the person is authorized to do by or under this section or prevent or attempt to prevent any person from doing any such thing and, notwithstanding any other Act or law, every person shall, unless the person is unable to do so, do everything required by or under this section.
- 1996, c. 23, s. 88
- 1999, c. 17, s. 135
- 2005, c. 38, s. 138
Marginal note:Protection of employer
89 (1) No action lies against any person for deducting a sum of money in compliance or intended compliance with this Act.
Marginal note:Discharge of liability
(2) The Minister’s receipt for an amount deducted by a person as required by or under this Act is a good and sufficient discharge of the liability of any debtor to their creditor with respect to the deduction to the extent of the amount mentioned in the receipt.
Rulings and Appeals
Marginal note:Request for ruling
90 (1) An employer, an employee, a person claiming to be an employer or an employee or the Commission may request an officer of the Canada Revenue Agency authorized by the Minister to make a ruling on any of the following questions:
(a) whether an employment is insurable;
(b) how long an insurable employment lasts, including the dates on which it begins and ends;
(c) what is the amount of any insurable earnings;
(d) how many hours an insured person has had in insurable employment;
(e) whether a premium is payable;
(f) what is the amount of a premium payable;
(g) who is the employer of an insured person;
(h) whether employers are associated employers; and
(i) what amount shall be refunded under subsections 96(4) to (10).
Marginal note:Time limit
(2) The Commission may request a ruling at any time, but a request by any other person must be made before the June 30 following the year to which the question relates.
(3) The authorized officer shall make the ruling within a reasonable time after receiving the request.
(4) Unless a ruling has been requested with respect to an insured person,
(a) an amount deducted from the remuneration of the person or paid by an employer as a premium for the person is deemed to have been deducted or paid in accordance with this Act; or
(b) an amount that has not been so deducted or paid is deemed not to have been required to be deducted or paid in accordance with this Act.
- 1996, c. 23, s. 90
- 1999, c. 17, s. 135, c. 31, s. 80
- 2005, c. 38, s. 138
- Date modified: