Administrative Monetary Penalties (Canada Marine Act) Regulations (SOR/2023-138)

Definition

Marginal note:Definition of Act

1 In these Regulations, Act means the Canada Marine Act.

Designation

Marginal note:Provisions of the Act and its regulations

2 A provision of the Act or its regulations that is set out in column 1 of a Part of Schedule 1 is designated as a provision whose contravention may be proceeded with as a violation in accordance with the Act.

Classification

Marginal note:Seriousness of violation

3 A violation of a provision set out in column 1 of a Part of Schedule 1 is classified as minor, serious or very serious as set out in column 2 of that Part.

Penalties

Marginal note:Maximum amount — individual

• 4 (1) The maximum amount of a penalty payable by an individual with respect to a violation of a provision set out in column 1 of a Part of Schedule 1 is

  • (a) $1,250 in the case of a minor violation;

  • (b) $2,500 in the case of a serious violation; and

  • (c) $5,000 in the case of a very serious violation.

• Marginal note:Maximum amount — corporation or ship

  (2) The maximum amount of a penalty payable by a corporation or ship with respect to a violation of a provision set out in column 1 of a Part of Schedule 1 is

  • (a) $6,250 in the case of a minor violation;

  • (b) $12,500 in the case of a serious violation; and

  • (c) $25,000 in the case of a very serious violation.

Marginal note:Calculation — penalty

• 5 (1) The amount of the penalty for each violation is to be determined by the formula

  A + B + C + D – E

  where

  A

  is the baseline penalty amount as determined under section 6;

  B

  is the history of non-compliance amount, if any, as determined under section 7;

  C

  is the harm amount, if any, as determined under section 8;

  D

  is the economic gain amount, if any, as determined under section 9; and

  E

  is the mitigating factor amount, if any, as determined under subsection (2).

• Marginal note:Determination of mitigating factor amount

  (2) The mitigating factor amount referred to in element E of the formula is obtained by multiplying the percentage determined under section 10 by the sum of elements A, B, C and D.

Marginal note:Baseline penalty amount

6 The baseline penalty amount applicable to a violation is the amount set out in column 2 of Part 1 of Schedule 2, in the case of an individual, or Part 2 of that Schedule, in the case of a corporation or ship, that corresponds to the seriousness of the violation set out in column 1 of the applicable Part.

Marginal note:History of non-compliance amount

• 7 (1) If the violator has a history of non-compliance, the history of non-compliance amount applicable to a violation is the amount set out — for the number of incidents of non-compliance — in column 3 of Part 1 of Schedule 2, in the case of an individual, or Part 2 of that Schedule, in the case of a corporation or ship, that corresponds to the seriousness of the violation set out in column 1 of the applicable Part.

• Marginal note:History of non-compliance

  (2) A violator has a history of non-compliance if, in the five years before the violation,

  • (a) a notice of violation was issued to them for a violation of the same provision or a similar provision of the Act or its regulations, and they

    • (i) have paid the penalty for the violation under section 129.06 of the Act,

    • (ii) are deemed, under section 129.09 of the Act, to have committed the violation, or

    • (iii) were subject to a determination made under subsection 129.1(3) or 129.11(3) of the Act that they committed the violation; or

  • (b) the violator was found guilty of an offence under the Act.

Marginal note:Harm amount

• 8 (1) If the violation results or may result in harm, the harm amount is the amount set out in column 4 of Part 1 of Schedule 2, in the case of an individual, or Part 2 of that Schedule, in the case of a corporation or ship, that corresponds to the seriousness of the violation set out in column 1 of the applicable Part, and that corresponds to the category of real or potential impact on the safety of persons and property and on the environment, as determined under subsection (2).

• Marginal note:Category of impact

  (2) The category of real or potential impact is

  • (a) weak, if the real or potential impact of the violation is trivial;

  • (b) moderate, if the real or potential impact of the violation is not trivial but there is no substantial or widespread impact on property or the environment and no injury to anyone; and

  • (c) high, if the real or potential impact of the violation on property or the environment is substantial or widespread or an individual is injured.

Marginal note:Economic gain amount

9 If, as a result of the violation, the violator benefits from an economic gain or competitive advantage, including by obtaining revenue, profit or income or avoiding or delaying any cost, the economic gain amount is the amount set out in column 5 of Part 1 of Schedule 2, in the case of an individual, or Part 2 of that Schedule, in the case of a corporation or ship, that corresponds to the seriousness of the violation set out in column 1 of the applicable Part.

Marginal note:Mitigating factors amount

10 The percentage that is to be used to calculate the mitigating factor amount is the percentage set out in column 6 of Part 1 of Schedule 2, in the case of an individual, or Part 2 of that Schedule, in the case of a corporation or ship, that corresponds to the seriousness of the violation set out in column 1 of the applicable Part and is

• (a) 20%, if the violator voluntarily discloses the violation to an enforcement officer; or

• (b) 10%, if the violator cooperates with the enforcement officer or has taken voluntary measures to mitigate the harm caused or the harm that could have been caused by the violation.

Marginal note:Continuing violation

11 If an “X” is set out in column 3 of a Part of Schedule 1, a violation of a provision set out in column 1 constitutes a separate violation for each day on which it is continued.

Service

Marginal note:Methods of service

12 An enforcement officer may serve a notice of violation

• (a) in the case of an individual,

  • (i) by leaving a copy of it with the individual or, if the individual cannot conveniently be found, with someone who appears to be an adult member of the same household at the last known address or usual place of residence of the individual, or

  • (ii) by sending a copy of it by registered mail, courier or fax or other electronic means to the individual’s last known address or usual place of residence;

• (b) in the case of a corporation,

  • (i) by sending a copy of it by registered mail, courier or fax or other electronic means to the head office or place of business of the corporation, or

  • (ii) by leaving a copy of it with an officer or other individual who appears to direct or control the head office or place of business of the corporation or with the corporation’s agent or mandatary; and

• (c) in the case of a ship,

  • (i) by leaving a copy of it with the owner, master or any individual who is, or appears to be, in charge of the ship, or

  • (ii) by fixing a copy of it to a prominent part of the ship.

Marginal note:Proof of service

13 Service may be proven by

• (a) in the case of service in person, a certificate of service, in a form approved by the Minister and signed by the person who serves the notice of violation, and that indicates the name of the person receiving the notice and the means by which and day on which service was effected;

• (b) in the case of service by fax or other electronic means, a record of electronic transmission that sets out the date and time of transmission; and

• (c) in any other case, an acknowledgment of service signed by or on behalf of the person served, that specifies the date, place and means of service.

Marginal note:Effective date of service

14 Service is effective

• (a) in the case of a certificate of service, on the day indicated on the certificate;

• (b) in the case of service by fax or other electronic means, on the day indicated on the record of transmission; and

• (c) in the case of service by registered mail or courier, on the fourth day after the day on which a copy of the notice of violation is sent, as indicated on the receipt issued by the postal or courier service.

Payment

Marginal note:Payment options

• 15 (1) Any payment of a penalty required under these Regulations must be made within 30 days after the day on which the notice of violation is served.

• Marginal note:Method of payment

  (2) The payment must be made by means of credit card, or a certified cheque or money order made payable to the Receiver General for Canada.

• Marginal note:Deemed date of payment

  (3) The payment is deemed to have been made

  • (a) on the date indicated on the receipt, if the payment is made in person;

  • (b) on the date indicated on the postmark stamped on the envelope, if the amount is sent by regular mail;

  • (c) on the date indicated on the receipt issued by the postal or courier service, if the payment is sent by registered mail or courier; and

  • (d) on the date the transaction was processed, if the payment was made by credit card.

Coming into Force

Marginal note:Registration

Footnote ^*16 These Regulations come into force on the day on which they are published in the Canada Gazette, Part II.

• Return to footnote ^*[Note: Regulations in force July 5, 2023.]