Hazardous Products Act (R.S.C., 1985, c. H-3)

Dealing with Seized Things

Marginal note:Storage of seized things

• 24 (1) An inspector who seizes a thing under this Act may

  • (a) on notice to and at the expense of its owner or the person having possession, care or control of it at the time of its seizure, store it at the place where it was seized or move it to, and store it at, another place; or

  • (b) order its owner or the person having possession, care or control of it at the time of its seizure to store it at their expense at the place where it was seized or to move it to, and store it at, another place at their expense.

• Marginal note:Interference

  (2) Except with the authorization of an inspector, no person shall remove, alter or interfere in any way with a thing seized under this Act by an inspector.

Marginal note:Release of seized things

24.1 An inspector who seizes a thing under this Act shall release it if they are satisfied that the provisions of this Act and of the regulations that relate to it have been complied with.

Marginal note:Application for restoration

• 25 (1) If a thing has been seized under this Act, its owner or the person having possession, care or control of it at the time of its seizure may, within 120 days after the date of the seizure, on prior notice having been given in accordance with subsection (2) to the Minister, apply to a provincial court judge within whose territorial jurisdiction the seizure was made for an order of restoration under subsection (3).

• Marginal note:Notice to Minister

  (2) The notice referred to in subsection (1) shall be delivered to the Minister at Ottawa at least 30 clear days before the day on which the application to the provincial court judge is to be made, by means of registered mail, a method of courier service that provides a record of delivery and requires a signature on delivery, or any other prescribed method, and shall specify

  • (a) the provincial court judge to whom the application is to be made;

  • (b) the place and time at which the application is to be heard;

  • (c) the thing in respect of which the application is to be made; and

  • (d) the evidence on which the applicant intends to rely to establish that

    • (i) the applicant was the owner or the person having possession, care or control of the thing at the time of its seizure, and

    • (ii) the thing was not used in the contravention of any provision of this Act or of the regulations and it is not something in relation to which a provision of this Act or of the regulations was contravened.

• Marginal note:Order of restoration

  (3) Subject to section 26, the provincial court judge shall order that the thing seized be restored without delay to the applicant if, on the hearing of an application made under subsection (1), the judge is satisfied that

  • (a) the applicant was the owner or the person having possession, care or control of the thing at the time of its seizure;

  • (a.1) the thing was not used in the contravention of any provision of this Act or of the regulations and it is not something in relation to which a provision of this Act or of the regulations was contravened; and

  • (b) the thing is not and will not be required as evidence in any proceedings in respect of an offence under section 28.

• Marginal note:No application for restoration

  (4) If no application has been made under subsection (1) for the restoration of a thing seized under this Act within 120 days after the date of the seizure, the Minister may dispose of it, at the expense of its owner or the person having possession, care or control of it at the time of its seizure, as the Minister thinks fit.

Marginal note:Forfeiture  — conviction for offence

• 26 (1) If a person has been convicted of an offence under section 28, the court may order that a thing seized under this Act by means of or in respect of which the offence was committed be forfeited to Her Majesty in right of Canada. The thing forfeited may be disposed of, as the Minister directs, at the expense of its owner, the person who was entitled to possession of it at the time of its seizure or the person who has been convicted of the offence.

• Marginal note:Forfeiture  — consent of owner

  (2) If the owner of a thing seized under this Act consents in writing to its forfeiture, the thing is forfeited to Her Majesty in right of Canada and may be disposed of, at the expense of its owner, as the Minister directs.

Removal or Forfeiture of Unlawful Imports

Marginal note:Unlawful imports

• 26.01 (1) An inspector who has reasonable grounds to believe that an imported hazardous product does not meet the requirements of the regulations or was imported in contravention of a provision of this Act or of the regulations may decide whether to give the owner or importer, or the person having possession, care or control of the product, the opportunity to take a measure in respect of it.

• Marginal note:Factors

  (2) In making a decision under subsection (1), the inspector shall consider, among other factors

  • (a) whether the hazardous product endangers human health or safety; and

  • (b) any other prescribed factors.

• Marginal note:Duty of inspector

  (3) If the inspector decides under subsection (1) not to give the owner or importer, or the person having possession, care or control of the hazardous product the opportunity to take a measure in respect of it, the inspector shall exercise, in respect of the product, any of the powers conferred by the provisions of this Act, other than this section, or of the regulations.

• Marginal note:Measures that may be taken and notice

  (4) However, if the inspector decides under subsection (1) to give the owner or importer, or the person having possession, care or control of the hazardous product the opportunity to take a measure in respect of it, the inspector, or any other inspector who is informed of the decision, shall decide whether the owner or importer, or the person having possession, care or control of it may remove it from Canada at their expense, consent to its forfeiture or take either of these measures, and shall notify or cause to be notified the owner or importer, or the person having possession, care or control of the product that they may take that measure within the period specified by the inspector or other inspector, as the case may be.

• Marginal note:Forfeiture

  (5) If a person is notified under subsection (4) that they may consent to the forfeiture of the hazardous product and the person consents to its forfeiture, the product is forfeited to Her Majesty in right of Canada and may be disposed of, as the Minister may direct, at the person’s expense.

Orders for Taking Measures

Marginal note:Taking measures

• 26.1 (1) The Minister may order a supplier to take any measure that the Minister considers necessary to remedy a non-compliance, or to prevent non-compliance, with the provisions of this Act or of the regulations, if the Minister believes on reasonable grounds that any provision of this Act or of the regulations has been contravened in relation to the hazardous product.

• Marginal note:Measures

  (2) The measures referred to in subsection (1) include measures related to the label or safety data sheet for the hazardous product or to stopping the sale or importation of the hazardous product or causing it to be stopped.

• Marginal note:Notice

  (3) The order shall be provided in the form of a written notice that sets out the reasons for the measure and the time within which and manner in which the measure is to be carried out.

• Marginal note:Statutory Instruments Act

  (4) For greater certainty, orders made under subsection (1) are not statutory instruments within the meaning of the Statutory Instruments Act.

Review of Orders for Taking Measures

Marginal note:Review officer

26.2 The Minister may designate as a review officer for the purposes of reviewing orders under section 26.3 any individual or class of individuals who, in the Minister’s opinion, is qualified to be so designated.

Marginal note:Request for review

• 26.3 (1) Subject to any other provision of this section, an order made under section 26.1 shall be reviewed by a review officer other than the individual who made the order, on the written request of the person who was ordered under it to take a measure, but only on grounds that involve questions of fact alone or questions of mixed law and fact.

• Marginal note:Contents of and time for making request

  (2) The written request shall state the grounds for review and set out the evidence, including evidence that was not considered by the individual who made the order, that supports those grounds and the decision that is sought. It shall be delivered to the Minister within seven days after the day on which the order is provided under subsection 26.1(3).

• Marginal note:No authority to review

  (3) The review is not to be done if the request does not comply with subsection (2) or is frivolous, vexatious or not made in good faith.

• Marginal note:Reasons for refusal

  (4) The person who made the request shall, without delay, be notified in writing of the reasons for not doing the review.

• Marginal note:Review initiated by review officer

  (5) A review officer  —  other than the individual who made the order  —  may review an order made under section 26.1, whether or not a request is made under subsection (1).

• Marginal note:Order in effect

  (6) An order made under section 26.1 continues to apply during a review unless the review officer decides otherwise.

• Marginal note:Completion of review

  (7) A review officer shall complete the review no later than 30 days after the day on which the request is delivered to the Minister.

• Marginal note:Extension of period for review

  (8) The review officer may extend the review period by no more than 30 days if they are of the opinion that more time is required to complete the review. They may extend the review period more than once.

• Marginal note:Reasons for extension

  (9) If the review period is extended, the person who made the request shall, without delay, be notified in writing of the reasons for extending it.

• Marginal note:Decision on completion of review

  (10) On completion of a review, the review officer shall confirm, amend, terminate or cancel the order.

• Marginal note:Notice

  (11) The person who made the request or, if there is no request, the person to whom the order was directed, shall, without delay, be notified in writing of the reasons for the review officer’s decision under subsection (10).

• Marginal note:Effect of amendment

  (12) An order made under section 26.1 that is amended is subject to review under this section.

• Marginal note:Certain information privileged

  (13) All information that, under the Hazardous Materials Information Review Act, a supplier is exempt from disclosing under this Act and that is obtained by a review officer in the exercise of their powers or the performance of their duties or functions under this section is privileged and, notwithstanding the Access to Information Act or any other Act or law, shall not be disclosed to any other person except as may be necessary for the purposes of the administration and enforcement of this Act.

Regulations

Marginal note:Regulations

27 The Governor in Council may make regulations

• (a) respecting the performance of an inspector’s, analyst’s or review officer’s duties or functions and the circumstances in which an inspector or a review officer may exercise their powers;

• (a.1) respecting the taking of samples and the seizure, detention, forfeiture or disposition of anything under this Part;

• (a.2) respecting the form of notices referred to in subsections 25(2) and 26.1(3) and the time within which and manner in which orders are to be provided under subsection 26.1(3);

• (a.3) respecting the measures referred to in section 26.1;

• (a.4) respecting the review of orders under section 26.3;

• (a.41) respecting the implementation, in relation to hazardous products, of international agreements that affect those products;

• (a.5) prescribing anything that by this Part is to be prescribed; and

• (b) generally for carrying out the purposes and provisions of this Part.