Marginal note:Interference with service

223. No person shall wilfully interfere with the service of a notice of a detention order.

Marginal note:Direction to move a detained vessel

224. The Minister may

• (a) on application made by the authorized representative of a detained vessel in the form and manner specified by the Minister, permit the master to move it in accordance with the directions of the Minister;

• (b) on application made by the owner of a dock or wharf or by the person in charge of a harbour at which a detained vessel is situated in the form and manner specified by the Minister, direct the person who is, or appears to be, in charge of the vessel to move the vessel in accordance with the directions of the Minister; and

• (c) if a person to whom a direction is given under paragraph (b) does not comply with it and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the vessel, authorize the applicant to move the vessel in accordance with the Minister’s directions and at the expense of the authorized representative.

Sale of Vessels

Marginal note:Distress on vessel for sums ordered to be paid

225. A court, justice of the peace or provincial court judge that orders the authorized representative of a vessel to pay any fine, crew member’s wages or other sum of money may, if payment is not made in accordance with the order, order the seizure and sale of the vessel or its machinery or equipment.

Marginal note:Abandoned vessels

• 226. (1) The Minister may sell a vessel that is deemed abandoned under the regulations and may, by bill of sale, give the purchaser a valid title to it free from any mortgage or other claim on the vessel that exists at the time of the sale.

• Marginal note:Vessel may be seized and sold if fine or penalty not paid

  (2) At any time after a fine is imposed under a relevant provision against, or a certificate registered under subsection 235(2) (registration in Federal Court) in respect of, a vessel or its authorized representative, the Minister may, while the fine or debt remains unpaid, seize the vessel and, after giving notice to the authorized representative, sell it and, by bill of sale, give the purchaser a valid title to the vessel free from any mortgage or other claim on the vessel that exists at the time of the sale.

• Marginal note:Proceeds of sale

  (3) Any surplus remaining from the proceeds of a sale is to be distributed in accordance with the regulations after satisfying the following claims in the following order:

  • (a) the cost of the seizure and sale;

  • (b) any claim for salvage in respect of the vessel;

  • (c) the claims of masters and crew members for wages;

  • (c.1) the claims of masters for disbursements made or liabilities incurred for necessaries on account of the vessel;

  • (d) the amount of any fine imposed or debt due under a relevant provision; and

  • (e) the cost of returning masters and crew members to the place where they first came on board or to another place to which they and the Minister have agreed.

• Marginal note:If proceeds insufficient

  (4) If the proceeds of sale of a vessel are insufficient to satisfy the claims described in subsection (3), the Minister may proceed for the balance owing against

  • (a) the authorized representative, in the case of a Canadian vessel; and

  • (b) the owner, in the case of a foreign vessel.

Foreign Vessels in Contravention of International Conventions

Marginal note:Minister’s powers

• 227. (1) If the Minister has reasonable grounds to believe that a foreign vessel is in contravention of an international convention or protocol listed in Schedule 1, the Minister may

  • (a) if the vessel has not entered Canadian waters, direct the vessel not to enter Canadian waters;

  • (b) if the vessel has entered Canadian waters but is not in a port in Canada, direct the vessel to leave Canadian waters; and

  • (c) if the vessel is in a port in Canada, direct the vessel to leave Canadian waters, subject to any terms and conditions that the Minister may specify.

• Marginal note:Limitation

  (2) The Minister may not give a direction under subsection (1) if, in the Minister’s opinion, doing so would put the safety of the vessel, any person on board or the environment at imminent risk.

• Marginal note:Notification

  (3) If the Minister gives a direction under subsection (1) in respect of a vessel, the Minister must notify the state where the vessel is registered of the direction given and the reason for it.

Administrative Penalties

Interpretation

Definition of “violation”

228. In sections 229 to 244, “violation” means a contravention of a relevant provision that is designated as a violation by the regulations made under this Part.

Assurances of Compliance and Notices of Violation

Marginal note:If reasonable grounds to believe a violation

• 229. (1) If the Minister has reasonable grounds to believe that a person or vessel has committed a violation, the Minister may

  • (a) enter into an assurance of compliance with the person or vessel that

    • (i) identifies the violation and provides that the person or vessel will comply with the provision to which the violation relates within the period and be subject to the terms and conditions that are specified in the assurance,

    • (ii) sets out the amount and form of any security that, pending compliance with the assurance, must be deposited with the Minister, and

    • (iii) sets out the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel would have been liable to pay if the assurance had not been entered into; or

  • (b) issue, and cause to be served on the person or vessel, a notice of violation that names the person or vessel, identifies the violation and sets out

    • (i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay,

    • (ii) the period within which the penalty must be paid or a review of the notice requested, and

    • (iii) particulars of the manner in which the penalty must be paid or a review requested.

• Marginal note:Extension of period

  (2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person with whom or vessel with which the assurance of compliance was entered into is unable to comply with it because of reasons beyond the person’s or vessel’s control.

• Marginal note:Short-form descriptions in notices of violation

  (3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Deemed violation

• 230. (1) A person who, or vessel that, enters into an assurance of compliance is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

• Marginal note:Request for review

  (2) A person who, or vessel that, enters into an assurance of compliance may, within 48 hours after the assurance is signed and before a notice of default is served under subsection 231(2), request a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under subsection 232(1) of the facts of the violation and the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

• 231. (1) If the Minister is satisfied that an assurance of compliance has been complied with, the Minister must cause a notice to that effect to be served on the person or vessel and, on the service of the notice,

  • (a) no further proceedings may be taken against the person or vessel with respect to the violation in respect of which the assurance was entered into; and

  • (b) any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel.

• Marginal note:When assurance of compliance not complied with

  (2) If the Minister is of the opinion that a person who, or vessel that, has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person or vessel to the effect that, unless an adjudicator determines under subsection (3) that the assurance has been complied with,

  • (a) the person or vessel is liable to pay double the amount of the penalty set out in the assurance; or

  • (b) the security deposited under subparagraph 229(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Review of notice of default

  (3) A person or vessel served with a notice of default may, within 30 days after being served and in the prescribed manner, request a review by an adjudicator of the facts of the non-compliance with the assurance of compliance.

• Marginal note:Burden of proof

  (4) In the case of a review of the facts of a non-compliance,

  • (a) the burden is on the Minister to establish, on a balance of probabilities, that the person or vessel named in the notice did not comply with the assurance of compliance; and

  • (b) the person is not required and may not be compelled to give any evidence or testimony in the matter.

• Marginal note:Certain defences not available

  (5) A person or vessel named in a notice of default does not have a defence by reason that the person or vessel exercised due diligence to comply with the assurance of compliance.

• Marginal note:No set off

  (6) On the service of a notice of default, the person or vessel served has no right of set-off against any amount spent by the person or vessel under the assurance of compliance.

• Marginal note:Return of security

  (7) Any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel if

  • (a) a notice of default is served under paragraph (2)(a) and the person or vessel pays double the amount of the penalty; or

  • (b) an adjudicator determines under subsection (3) that the assurance has been complied with.

Marginal note:Notice of violation

• 232. (1) A person or vessel served with a notice of violation must pay the amount of the penalty or may, within 30 days after being served and in the prescribed manner, request a review by an adjudicator of the facts of the violation or the amount of the penalty.

• Marginal note:Burden of proof

  (2) In the case of a review of the facts of a violation,

  • (a) the burden is on the Minister to establish, on a balance of probabilities, that the person or vessel named in the notice of violation committed the violation; and

  • (b) the person is not required and shall not be compelled to give any evidence or testimony in the matter.

• Marginal note:When review not requested

  (3) If a review is not requested of the facts of the violation, the person or vessel is deemed to have committed the violation in respect of which the notice was served.

Choice of Proceedings

Marginal note:How contravention may be proceeded with

233. If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.

Recovery of Debts

Marginal note:Debts due to Her Majesty

234. The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:

• (a) unless a review of the amount of the penalty is requested under subsection 232(1), the amount of a penalty set out in a notice of violation, from the time the notice is served;

• (b) the amount that a notice of default served under subsection 231(2) provides that a person is liable to pay, from the time the notice is served;

• (c) the amount of a penalty determined by an adjudicator on a review under subsection 232(1), from the time the adjudicator gives their decision; and

• (d) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (c).

Marginal note:Certificate of default

• 235. (1) A debt referred to in section 234 in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister.

• Marginal note:Judgments

  (2) On production to the Federal Court, a certificate made under subsection (1) is to be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all reasonable costs and charges attendant in its registration.

Rules of Law about Violations

Marginal note:Violations are not offences

236. For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Common law principles

237. 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 a relevant provision applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Vicarious liability — Canadian maritime document holders

• 238. (1) The holder of a Canadian maritime document is liable for a violation that is committed in respect of any matter that relates to an activity or a requirement under that document, whether or not the person or vessel that actually committed the violation is identified or proceeded against in accordance with this Act.

• Marginal note:Vicarious liability — acts of employees and agents

  (2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee’s employment or within the scope of the agent’s authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.

General Provisions

Marginal note:Notations removed

• 239. (1) Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the last day on which any of the following events occurs the Minister is to remove every notation of violation or default, and every suspension or cancellation of or refusal to issue or renew a Canadian maritime document on prescribed grounds, from any records that the Minister may keep respecting a person or vessel:

  • (a) the person or vessel pays every penalty that the person or vessel is liable to pay under a notice of violation, a notice of default or an adjudicator’s decision;

  • (b) a suspension on prescribed grounds of a Canadian maritime document issued to the person or vessel ends;

  • (c) the Minister cancels, on prescribed grounds, a Canadian maritime document issued to the person or vessel; and

  • (d) the Minister refuses, on prescribed grounds, to issue a Canadian maritime document to the person or vessel or to renew a Canadian maritime document issued to the person or vessel.

• Marginal note:Duty to notify

  (2) The Minister is to give a person or vessel notice of a decision not to remove a notation in respect of the person or vessel and providing all relevant information concerning the grounds on which the Minister has refused to remove it.

• Marginal note:Review

  (3) The person may, within 30 days after the day on which the notice is given, request that an adjudicator review the decision.

Marginal note:Disclosure of notations of violations

240. The Minister shall keep a public record of notations of violations or default kept on any record that the Minister may keep respecting the person or vessel.

Marginal note:Limitation period

241. No notice of violation may be issued more than two years after the day on which the Minister becomes aware of the contravention.

Marginal note:Certificate of Minister

242. A document that purports to have been issued by the Minister and certifies the day on which the Minister became aware of a violation is evidence, without proof of the signature or official character of the person appearing to have signed the document, that the Minister became aware of the violation on that day.

Marginal note:When compliance agreement in effect

243. If a violation arising out of the contravention of any provision of Part 4 or the regulations made under that Part is committed while an agreement or arrangement is in effect between the Minister and the authorized representative of a Canadian vessel that provides that inspections of the vessel to ensure compliance with that provision will be carried out by the authorized representative or a person or an organization acting on their behalf, the penalty or range of penalties fixed under paragraph 244(h) in respect of the violation is doubled.

Regulations

Marginal note:Regulations

244. The Governor in Council may, on the recommendation of the Minister, make regulations for carrying out the purposes and provisions of this Part, including regulations

• (a) respecting clearances for departure from a port in Canada;

• (b) respecting the investigation of shipping casualties, the alleged contravention of a relevant provision or an incident that involved a vessel and that, in the opinion of the Minister, jeopardized the safety of persons;

• (c) respecting the detention of vessels, including the review of detention orders;

• (d) specifying the circumstances in which a vessel is deemed abandoned;

• (e) respecting the sale of a vessel under section 226, including measures that must be taken before the vessel is sold and the manner of establishing, and the priority of payment of, claims against the vessel;

• (f) designating as a violation that may be proceeded with in accordance with sections 229 to 242 the contravention of a relevant provision that is an offence under this Act;

• (g) designating violations that, if continued on more than one day, constitute a separate violation for each day on which they are continued;

• (h) designating violations that may be proceeded with by issuing notices of violation and fixing a penalty or a range of penalties in respect of each such violation, up to a maximum of $25,000 but in any event not greater than the maximum fine if the violation were proceeded with by way of summary conviction;

• (i) respecting reviews under subsection 231(3) (notices of default), 232(2) (notices of violation) or 239(3) (removal of notations of violations);

• (j) respecting the service of documents required or authorized to be served under this Part, including the manner of serving them, the proof of their service and the circumstances under which they are deemed to have been served; and

• (k) prescribing anything that by this Part is to be prescribed.