Jobs, Growth and Long-term Prosperity Act (S.C. 2012, c. 19)
Full Document:
Assented to 2012-06-29
124. (1) The portion of subsection 24(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:Application
(2) The Commission may issue, renew, suspend in whole or in part, amend, revoke or replace a licence, or authorize its transfer, on receipt of an application
(2) The portion of subsection 24(4) of the Act before paragraph (a) is replaced by the following:
Marginal note:Conditions for issuance, etc.
(4) No licence shall be issued, renewed, amended or replaced — and no authorization to transfer one given — unless, in the opinion of the Commission, the applicant or, in the case of an application for an authorization to transfer the licence, the transferee
(3) Subsection 24(8) of the Act is repealed.
125. (1) Paragraph 37(2)(d) of the Act is replaced by the following:
(d) renew, suspend in whole or in part, amend, revoke or replace — or authorize the transfer of — a licence referred to in paragraph (c) on receipt of an application referred to in subsection 24(2);
(2) Subsection 37(4) of the Act is replaced by the following:
Marginal note:Notice
(4) A designated officer who refuses to issue, renew, suspend, amend, revoke or replace a licence, or authorize its transfer, shall notify the applicant of the refusal.
(3) Paragraph 37(5)(a) of the Act is replaced by the following:
(a) a refusal by the designated officer to issue, renew, suspend, amend, revoke or replace a licence or authorize its transfer;
126. Paragraph 39(1)(b) of the Act is replaced by the following:
(a.1) the applicant, before refusing to authorize the transfer under paragraph 37(2)(d);
(b) the licensee, before renewing, suspending, amending, revoking or replacing a licence or authorizing its transfer, under paragraph 37(2)(d), or before refusing to take any of those actions; and
127. (1) Subsection 40(1) of the Act is amended by adding the following after paragraph (a):
(a.1) the applicant, before refusing to authorize its transfer under section 24;
(2) Paragraph 40(1)(e) of the Act is replaced by the following:
(e) the applicant, before confirming a decision not to issue a licence or authorize its transfer — and the licensee, before confirming a decision not to renew, amend, revoke or replace a licence or authorize its transfer — under paragraph 43(4)(a);
128. (1) Paragraphs 43(1)(a) of the Act is replaced by the following:
(a) a refusal of a designated officer to issue, renew, suspend, amend, revoke or replace a licence or authorize its transfer;
(2) Subsection 43(1) of the Act is amended by striking out “or” at the end of paragraph (c) and by adding the following after that paragraph:
(c.1) an authorization granted by a designated officer to transfer a licence; or
(3) Paragraphs 43(2)(a) and (b) of the Act are replaced by the following:
(a) the applicant, a decision of the Commission not to issue a licence or authorize its transfer;
(b) the licensee, a decision of the Commission not to renew, suspend, amend, revoke or replace a licence or authorize its transfer;
(4) Paragraph 43(4)(a) of the Act is replaced by the following:
(a) a decision not to issue, renew, amend, revoke, replace a licence or authorize its transfer, confirm the decision or issue, renew, amend, revoke or replace the licence or authorize its transfer;
129. (1) Subsection 44(1) of the Act is amended by adding the following after paragraph (u):
(u.1) 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 licence, or any term or condition of any specified class of licences;
(u.2) 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;
(u.3) respecting the service of documents required or authorized under section 65.05, 65.1 or 65.13, including the manner and proof of service and the circumstances under which documents are deemed to be served;
(2) Section 44 of the Act is amended by adding the following after subsection (12):
Marginal note:Restriction — amount of penalty
(13) The amount that may be determined under any regulations made under paragraph (1)(u.2) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.
130. The Act is amended by adding the following after section 65:
ADMINISTRATIVE MONETARY PENALTIES
Commission’s Powers
Marginal note:Powers
65.01 The Commission may
(a) establish the form of notices of violation;
(b) designate inspectors, or designated officers, 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 designated officers to conduct reviews under section 65.13.
Violations
Marginal note:Commission of violation
65.02 (1) Every person who contravenes or fails to comply with a provision, order, decision, term or condition designated under paragraph 44(1)(u.1) commits a violation and is liable to an administrative monetary 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.
65.03 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 an administrative monetary 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
65.04 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
65.05 (1) If a person designated under paragraph 65.01(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
65.06 (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
65.07 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
65.08 (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
65.09 No notice of violation in respect of a violation shall 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
65.1 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 Commission allows, make a request to the Commission 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
65.11 At any time before a request for a review in respect of a notice of violation is received by the Commission, a person designated under paragraph 65.01(b) may cancel the notice of violation or correct an error in it.
Marginal note:Review
65.12 (1) On receipt of a request made under section 65.1, the Commission shall conduct the review or cause the review to be conducted by a designated officer.
Marginal note:Restriction
(2) If the notice of violation was issued by a designated officer, the Commission shall conduct the review.
Marginal note:Review by designated officer
65.13 (1) If a review is conducted by a designated officer, the designated officer 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 designated officer shall render his or her determination in writing and cause the person who requested the review to be served with a copy of the determination and reasons.
Marginal note:Correction of penalty
(3) If the designated officer determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the designated officer shall correct the amount of the penalty.
Marginal note:Responsibility
(4) If the designated officer determines that the person who requested the review committed the violation, the person is liable to the penalty as set out in the determination.
Marginal note:Request for review by Commission
(5) A person on whom a copy of a determination of a review is served may, within 30 days after the day on which it is served, or within any longer period that the Commission allows, make a request to the Commission for a review by the Commission of the amount of the penalty or the facts of the violation, or both.
Marginal note:Review by Commission
65.14 (1) If a review is conducted by the Commission, the Commission 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 Commission shall render its determination in writing and cause the person who requested the review to be served with a copy of the determination and reasons.
Marginal note:Correction of penalty
(3) If the Commission determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Commission shall correct the amount of the penalty.
Marginal note:Responsibility
(4) If the Commission determines that the person who requested the review committed the violation, the person is liable to the penalty as set out in the determination.
Marginal note:Determination final
(5) Despite subsection 43(3), 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:Burden of proof
65.15 If the facts of a violation are reviewed under section 65.13 or 65.14, 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
65.16 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
65.17 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
65.18 (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 or prescription period
(2) No proceedings to recover the debt shall be instituted more than five years after the day on which the debt becomes payable.
Marginal note:Certificate
65.19 (1) The Commission may issue a certificate certifying the unpaid amount of any debt referred to in subsection 65.18(1).
Marginal note:Registration in Federal Court
(2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate 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
65.2 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 65.05(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication
65.21 The Commission 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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