Jobs and Growth Act, 2012 (S.C. 2012, c. 31)
Full Document:
Assented to 2012-12-14
Marginal note:2004, c. 15, s. 96
322. (1) Subsection 32(1) of the Act is replaced by the following:
Marginal note:Interim orders
32. (1) The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with a significant risk, direct or indirect, to safety or security.
Marginal note:2004, c. 15, s. 96
(2) Paragraph 32(2)(c) of the Act is replaced by the following:
(c) the day on which a regulation made under this Act, that has the same effect as the interim order, comes into force, and
Marginal note:2004, c. 15, s. 96
(3) Subsection 32(5) of the Act is replaced by the following:
Marginal note:Deeming
(5) For the purpose of any provision of this Act other than this section, any reference to regulations made under this Act is deemed to include interim orders, and any reference to a regulation made under a specified provision of this Act is deemed to include a reference to the portion of an interim order containing any provision that may be contained in a regulation made under the specified provision.
Marginal note:2009, c. 2, s. 340
323. Section 33 of the Act and the headings before it are replaced by the following:
ADMINISTRATION AND ENFORCEMENT
Designation
Marginal note:Designation
33. The Minister may designate persons or classes of persons for the purposes of the administration and enforcement of this Act.
Marginal note:2009, c. 2, s. 340
324. (1) Subsection 34(1) of the Act is replaced by the following:
Marginal note:Authority to enter
34. (1) A designated person may, for a purpose related to verifying compliance with this Act, enter a place in which they have reasonable grounds to believe that any of the following items are located:
(a) a work or anything related to a work; and
(b) an obstruction or potential obstruction.
Marginal note:2009, c. 2, s. 340
(2) Subsection 34(2) of the French version of the Act is replaced by the following:
Marginal note:Certificat
(2) La personne désignée présente, sur demande, au responsable du lieu le certificat établi en la forme déterminée par le ministre et attestant sa qualité.
Marginal note:2009, c. 2, s. 340
(3) Paragraph 34(3)(c) of the French version of the Act is replaced by the following:
c) ordonner de mettre en marche les machines, le bâtiment ou tout autre moyen de transport, ou de faire fonctionner l’ouvrage ou l’équipement, situés dans le lieu, ou d’arrêter les machines, le bâtiment ou le moyen de transport ou de cesser de faire fonctionner l’ouvrage ou l’équipement;
Marginal note:2009, c. 2, s. 340
325. The portion of section 35 of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Obligation d’assistance
35. Le propriétaire ou le responsable du lieu visé au paragraphe 34(1), ainsi que toute personne qui s’y trouve, sont tenus :
Marginal note:2009, c. 2, s. 340
326. (1) The portion of subsection 36(2) of the French version of the Act before paragraph (a) is replaced by the following:
Marginal note:Pouvoir de décerner un mandat
(2) Sur demande ex parte, le juge de paix peut décerner un mandat autorisant, sous réserve des conditions éventuellement fixées, la personne qui y est nommée à entrer dans une maison d’habitation, s’il est convaincu, sur la foi d’une dénonciation sous serment, que sont réunis les éléments suivants :
Marginal note:2009, c. 2, s. 340
(2) Paragraph 36(2)(b) of the Act is replaced by the following:
(b) entry to the dwelling-house is necessary for a purpose related to verifying compliance with this Act; and
Marginal note:2009, c. 2, s. 340
327. Subsection 38(1) of the Act is replaced by the following:
Marginal note:Injunction
38. (1) If, on the application of the Minister, it appears to a court of competent jurisdiction that a person has done, is about to do or is likely to do any act constituting or directed toward the commission of an offence or a violation under this Act, the court may issue an injunction ordering a person named in the application
(a) to refrain from doing an act that, in the opinion of the court, may constitute or be directed toward the commission of the offence or the violation; or
(b) to do an act that, in the opinion of the court, may prevent the commission of the offence or the violation.
328. The Act is amended by adding the following after section 39:
Administrative Monetary Penalties
Violations
Marginal note:Commission of violation
39.1 (1) Every person who contravenes a provision designated under paragraph 28(1)(i) commits a violation and is liable to a penalty established in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of a penalty is to promote compliance with this Act and not to punish.
Marginal note:Maximum penalty
(3) The maximum penalty for a violation is $5,000, in the case of an individual, and $40,000 in any other case.
Proceedings
Marginal note:Notice of violation
39.11 (1) A designated person may issue a notice of violation and cause it to be provided to a person if the designated person has reasonable grounds to believe that the person has committed a violation.
Marginal note:Contents of notice
(2) The notice of violation shall
(a) name the person believed to have committed the violation;
(b) identify the acts or omissions that constitute the alleged violation;
(c) set out the penalty for the violation that the person is liable to pay;
(d) set out the particulars concerning the time and manner of payment; and
(e) set out a lesser amount that may be paid as complete satisfaction of the penalty if it is paid within the prescribed time and in the prescribed manner that are specified in the notice.
Marginal note:Summary of rights
(3) A notice of violation shall summarize, in plain language, the rights and obligations under this section and sections 39.12 to 39.23 of the person to whom it is provided, including the right to request a review of the acts or omissions that constitute the alleged violation or of the amount of the penalty and the procedure for requesting the review.
Marginal note:Short-form descriptions
(4) The Minister may establish a short-form description of each violation to be used in notices of violation.
Penalties
Marginal note:Effect of payment
39.12 (1) If the person who is named in a notice of violation pays, within the prescribed time and in the prescribed manner that are specified in the notice, the amount of the penalty — or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty — set out in the notice,
(a) the person is deemed to have committed the violation to which the amount paid relates;
(b) the Minister shall accept the amount paid as complete satisfaction of the penalty; and
(c) the proceedings commenced in respect of the violation under section 39.11 are ended.
Marginal note:Alternatives to payment
(2) Instead of paying the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, the person who is named in the notice may, within the prescribed time and in the prescribed manner that are specified in the notice, request a review by the Tribunal of the acts or omissions that constitute the alleged violation or of the amount of the penalty, as the case may be.
Marginal note:Deeming
(3) If the person who is named in the notice does not pay the penalty or, if applicable, the lesser amount that may be paid as complete satisfaction of the penalty, within the prescribed time and in the prescribed manner and does not exercise the right referred to in subsection (2) within the prescribed time and in the prescribed manner, the person is deemed to have committed the violation identified in the notice.
Review by Tribunal
Marginal note:Review — violation
39.13 (1) After completing a review requested under subsection 39.12(2) with respect to the acts or omissions that constitute the alleged violation identified in the notice of violation, the Tribunal shall determine whether the person who is named in the notice committed the violation and, if the Tribunal determines that the person did so but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.
Marginal note:Review — penalty
(2) After completing a review requested under subsection 39.12(2) with respect to the amount of the penalty set out in the notice of violation, the Tribunal shall determine whether the amount of the penalty was established in accordance with the regulations and, if the Tribunal determines that it was not, the Tribunal shall correct that amount and cause the person to be provided with a notice of the Tribunal’s decision.
Marginal note:Payment
(3) The person who is provided with a notice of the Tribunal’s decision is liable to pay the amount of the penalty that is set out in it within the prescribed time and in the prescribed manner that are specified in the notice.
Marginal note:Effect of payment
(4) If the person pays the amount of the penalty that is set out in the notice of the Tribunal’s decision within the prescribed time and in the prescribed manner that are specified in the notice,
(a) the Tribunal shall accept the amount as complete satisfaction of the penalty; and
(b) the proceedings commenced in respect of the violation under section 39.11 are ended.
Recovery of Debts
Marginal note:Debts to Her Majesty
39.14 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:
(a) the amount of a penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless a request is made to have the Tribunal review the acts or omissions that constitute the violation or the amount of the penalty, as the case may be;
(b) the amount of a penalty set out in the notice of the Tribunal’s decision made under subsection 39.13(1) or (2), beginning on the day specified in the notice; and
(c) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in paragraph (a) or (b).
Marginal note:Limitation period or prescription
(2) Proceedings to recover such a debt may be commenced no later than five years after the debt becomes payable.
Marginal note:Debt final
(3) The debt is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 39.12 and 39.13.
Marginal note:Certificate of default
39.15 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 39.14(1).
Marginal note:Effect of registration
(2) Registration of the certificate in the Federal Court 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.
Rules of Law About Violations
Marginal note:Violations not offences
39.16 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Marginal note:Due diligence defence
39.17 (1) A person shall not be found to be liable for a violation if they establish that they exercised due diligence to prevent the commission of the violation.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or an 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:Burden of proof
39.18 If the Tribunal is to determine whether a person who is named in a notice of violation committed any violation that is identified in it, the Tribunal shall do so on a balance of probabilities.
Marginal note:Offences by corporate officers, etc.
39.19 If a person other than an individual commits a violation under this Act, any of the person’s officers, directors and agents or mandataries who directed, authorized, assented to or acquiesced or participated in the commission of the violation is a party to and liable for the violation, whether or not the person who actually committed it is proceeded against in accordance with this Act.
Marginal note:Vicarious liability — acts of employees, agents and mandataries
39.2 A person is liable for a violation that is committed by that person’s employee or agent or mandatary who is acting in the course of the employee’s employment or within the scope of the agent or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against in accordance with this Act.
Marginal note:Continuing violation
39.21 A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued.
Other Provisions
Marginal note:Evidence
39.22 In any proceeding for a violation, a notice of violation purporting to be issued under this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Limitation period or prescription
39.23 Proceedings in respect of a violation may be commenced no later than six months after the day on which a designated person becomes aware of the acts or omissions that constitute the alleged violation.
Marginal note:Certification by Minister
39.24 A document appearing to have been issued by the Minister and certifying the day on which the acts or omissions that constitute the alleged violation became known to a designated person is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of evidence to the contrary, is proof that the designated person became aware of the acts or omissions on that day.
Marginal note:Information may be made public
39.25 The Minister may make public the name and business address of a person who is deemed to have committed a violation or who was determined to have committed a violation, the acts or omissions and provisions at issue, and the amount payable as a result, if any.
Marginal note:How act or omission may be proceeded with
39.26 If an act or omission may be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.
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