Jobs, Growth and Long-term Prosperity Act (S.C. 2012, c. 19)
Full Document:
Assented to 2012-06-29
Marginal note:1990, c. 7, s. 28
92. (1) Paragraph 112(5)(c) of the Act is replaced by the following:
(c) the circumstances in which or conditions under which leave under subsection (1) or (2) is not necessary.
(2) Section 112 of the Act is amended by adding the following after subsection (7):
Marginal note:Offence
(8) Every person who contravenes subsection (1) or (2), a direction made under subsection (4) or an order or regulation made under subsection (5) is guilty of an offence and liable
(a) on summary conviction, to a fine not exceeding one hundred thousand dollars or to imprisonment for a term not exceeding one year or to both; or
(b) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both.
Marginal note:Application of subsections 121(2) to (5)
(9) Subsections 121(2) to (5) apply, with any modifications that the circumstances require, to an offence under subsection (8).
Marginal note:1990, c. 7, s. 32
93. Section 118 of the Act is replaced by the following:
Marginal note:Criteria
118. On an application for a licence to export oil or gas, the Board shall satisfy itself that the quantity of oil or gas to be exported does not exceed the surplus remaining after due allowance has been made for the reasonably foreseeable requirements for use in Canada, having regard to the trends in the discovery of oil or gas in Canada.
Marginal note:1990, c. 7, s. 34
94. (1) The portion of subsection 119.06(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Criteria
(2) In determining whether to make a recommendation, the Board shall seek to avoid the duplication of measures taken in respect of the exportation by the applicant and the government of the province from which the electricity is exported, and shall have regard to
Marginal note:1990, c. 7, s. 34
(2) Paragraph 119.06(2)(b) of the Act is repealed.
Marginal note:1990, c. 7, s. 34
95. Subsections 119.08(1) and (2) of the Act are replaced by the following:
Marginal note:Issuance
119.08 (1) The Board may, subject to the approval of the Governor in Council, issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
Marginal note:Criteria
(2) In deciding whether to issue a licence, the Board shall have regard to
(a) the effect of the exportation of the electricity on provinces other than from which the electricity is to be exported;
(b) whether the applicant has
(i) informed those who have declared an interest in buying electricity for consumption in Canada of the quantities and classes of service available for sale, and
(ii) given an opportunity to purchase electricity on terms and conditions as favourable as the terms and conditions specified in the application to those who, within a reasonable time after being so informed, demonstrate an intention to buy electricity for consumption in Canada; and
(c) any considerations that may be specified in the regulations.
96. Section 119.094 of the Act is amended by striking out “and” at the end of paragraph (b), by adding “and” at the end of paragraph (c) and by adding the following after paragraph (c):
(d) specifying considerations to which the Board shall have regard in deciding whether to issue a licence for the exportation of electricity in relation to which an order made under section 119.07 is in force.
Marginal note:2001, c. 28, s. 59
97. The portion of section 120.5 of the Act before paragraph (a) is replaced by the following:
Marginal note:Where no declaration made
120.5 The Board may, despite its not being satisfied in accordance with section 118, issue a licence for the exportation to the United States, Chile or Costa Rica of such energy goods as were, or of such quality, kind or class of energy goods as was, referred to in a request made under section 120.3 if
98. The Act is amended by adding the following after section 133:
PART IXADMINISTRATIVE MONETARY PENALTIES
Board’s Powers
Marginal note:Regulations
134. (1) The Board may, with the approval of the Governor in Council, make regulations
(a) designating as a violation that may be proceeded with in accordance with this Act
(i) the contravention of any specified provision of this Act or of any of its regulations,
(ii) the contravention of any order or decision, or of any order or decision of any specified class of orders or decisions, made under this Act, or
(iii) the failure to comply with any term or condition of
(A) any certificate, licence or permit or of any specified class of certificate, licence or permit, or
(B) any leave or exemption granted under this Act or of any specified class of leave or exemption granted under this Act;
(b) respecting the determination of or the method of determining the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and
(c) respecting the service of documents required or authorized under section 139, 144 or 147, including the manner and proof of service and the circumstances under which documents are considered to be served.
Marginal note:Maximum
(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation must not be more than twenty-five thousand dollars, in the case of an individual, and one hundred thousand dollars in the case of any other person.
Marginal note:Powers
135. The Board may
(a) establish the form of notices of violation;
(b) designate persons or classes of persons who are authorized to issue notices of violation;
(c) establish, in respect of each violation, a short-form description to be used in notices of violation; and
(d) designate persons or classes of persons to conduct reviews under section 147.
Violations
Marginal note:Commission of violation
136. (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 134(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Marginal note:Liability of directors, officers, etc.
137. If a corporation commits a violation, any director, officer, 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 the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Marginal note:Proof of violation
138. In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Act.
Marginal note:Issuance and service of notice of violation
139. (1) If a person designated under paragraph 135(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
Marginal note:Contents
(2) The notice of violation must
(a) name the person that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the amount of the penalty for the violation;
(d) inform the person of their right to request a review with respect to the violation or the amount of the penalty, and of the prescribed period within which that right must be exercised;
(e) inform the person of the manner of paying the penalty set out in the notice; and
(f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.
Rules about Violations
Marginal note:Certain defences not available
140. (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Marginal note:Continuing violation
141. 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:Violation or offence
142. (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Marginal note:Violations not offences
(2) 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:Limitation or prescription period
143. No notice of violation in respect of a violation may be issued more than two years after the day on which the subject matter of the violation arises.
Reviews
Marginal note:Right to request review
144. A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.
Marginal note:Correction or cancellation of notice of violation
145. At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 135(b) may cancel the notice of violation or correct an error in it.
Marginal note:Review
146. (1) On receipt of a request made under section 144, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 135(d).
Marginal note:Restriction
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 135(d).
Marginal note:Object of review
147. (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Marginal note:Determination
(2) The Board or the person conducting the review shall render a determination in writing and cause the person who requested the review to be served with a copy of the determination and the reasons for it.
Marginal note:Correction of penalty
(3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.
Marginal note:Responsibility
(4) If the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.
Marginal note:Determination final
(5) Despite subsection 21(1), a determination made under this section is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
Marginal note:Federal Court
(6) Despite section 28 of the Federal Courts Act, the Federal Court has exclusive original jurisdiction to hear and determine an application for judicial review of a determination made under this section by the Board.
Marginal note:Burden of proof
148. If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
Responsibility
Marginal note:Payment
149. If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Marginal note:Failure to act
150. A person that neither pays the penalty imposed under this Act nor requests a review in the prescribed period is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Marginal note:Debts to Her Majesty
151. (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered in the Federal Court or any other court of competent jurisdiction.
Marginal note:Limitation period
(2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.
Marginal note:Certificate
152. (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 151(1).
Marginal note:Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate of non-payment issued under subsection (1) has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
General
Marginal note:Admissibility of documents
153. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 139(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication
154. The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
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