ADMINISTRATIVE MONETARY PENALTIES

Violations

Marginal note:Violations

23. Every person who contravenes a provision, requirement or condition designated under subparagraph 20(1)(k)(i) commits a violation and is liable to an administrative monetary penalty not exceeding the maximum prescribed or, if no maximum has been prescribed, to a penalty not exceeding $5,000, in the case of an individual, and $25,000, in any other case.

Enforcement Officers

Marginal note:Designation of enforcement officers

• 24. (1) The Minister may designate as enforcement officers for the purposes of this Act persons or classes of persons that the Minister considers qualified.

• Marginal note:Certification of designated persons

  (2) Enforcement officers are to receive a certificate attesting to their designation and shall, on demand, present the certificate to any person from whom they request information in the course of their duties or functions.

• Marginal note:Status of inspector

  (3) Every enforcement officer is, in carrying out their duties and functions, an inspector.

Notices of Violation

Marginal note:Issuance and service

• 25. (1) If an enforcement officer believes on reasonable grounds that a person has committed a violation, the officer may issue, and shall cause to be served on the person, a notice of violation.

• Marginal note:Contents of notice

  (2) The Minister may establish the form and content of notices of violation, but each notice of violation must

  • (a) name the person believed to have committed a violation;

  • (b) identify the violation;

  • (c) set out the penalty that the enforcement officer proposes to impose;

  • (d) inform the person that they may, within 30 days after the notice is served or within any longer period specified in the notice, either pay the penalty set out in the notice or make representations to the officer with respect to the alleged violation or proposed penalty — including any representations about entering into a compliance agreement — and set out the manner for doing so; and

  • (e) inform the person that, if they do not pay the penalty or make representations in accordance with the notice, they will be considered to have committed the violation and the officer may impose a penalty in respect of it.

• Marginal note:Criteria for penalty

  (3) The amount of a proposed penalty is, in each case, to be determined taking into account the following matters:

  • (a) the degree of intention or negligence on the part of the person who committed the violation;

  • (b) the harm done by the violation;

  • (c) the person’s history of prior violations or convictions under this Act during the five-year period immediately before the violation;

  • (d) any prescribed criteria; and

  • (e) any other relevant matter.

Determination of Responsibility and Penalty

Payment of Penalty

Marginal note:Payment

26. If the person pays the penalty proposed in the notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.

Making Representations

Marginal note:Making of representations

• 27. (1) If the person alleged to have committed a violation makes representations, the enforcement officer shall either

  • (a) enter into a compliance agreement with the person on behalf of the Minister; or

  • (b) decide on a balance of probabilities whether the person committed the violation and, if so, impose the penalty proposed, a lesser penalty or no penalty, taking into account the matters mentioned in subsection 25(3).

  The enforcement officer shall cause notice of any decision made under paragraph (b) to be issued and served on the person together with notice of the person’s right of appeal under subsection 29(1).

• Marginal note:Compliance agreements

  (2) In the course of the making of representations, an enforcement officer may, on behalf of the Minister, enter into a compliance agreement with the person alleged to have committed a violation on any terms that the officer considers satisfactory. The terms

  • (a) must provide for payment by the person to the Receiver General of a specified amount not greater than the penalty proposed in the notice of violation if the person does not comply with the agreement; and

  • (b) may provide for the giving of reasonable security, in a form and an amount that the officer considers satisfactory, for the person’s performance of the agreement.

• Marginal note:Agreement ends proceedings

  (3) Entry into a compliance agreement ends the violation proceedings and precludes any further violation or offence proceedings in relation to the act or omission in question.

• Marginal note:If agreement not complied with

  (4) The Minister may issue and serve a notice of default on a person who has entered into a compliance agreement but has not complied with it. On service of the notice, the person is liable to pay without delay the amount provided for in the agreement, failing which, the Minister may realize or enforce any security for the person’s performance of the agreement.

Responsibility

Marginal note:Failure to act

28. A person who neither pays the penalty nor makes representations in accordance with the notice of violation is considered to have committed the violation, and the enforcement officer shall impose the penalty proposed and notify the person of it.

Appeal to Minister

Marginal note:Right of appeal

• 29. (1) A person served with notice of a decision made under paragraph 27(1)(b) may, within 30 days after the notice is served, or within any longer period that the Minister allows, appeal the decision to the Minister.

• Marginal note:Powers of Minister

  (2) On an appeal, the Minister may confirm, set aside or vary the decision of the enforcement officer.

Rules about Violations

Marginal note:Vicarious liability — acts of employees, agents and mandataries

30. A person is liable for a violation that is committed by the person’s employee acting in the course of the employment or the person’s agent or mandatary acting within the scope of their authority, whether or not the employee, agent or mandatary who actually committed the violation is identified or proceeded against.

Marginal note:Due diligence

31. Due diligence is a defence in a proceeding in relation to a violation.

Marginal note:Continuing violation

32. 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:Limitation period

33. Any proceedings in respect of a violation may be instituted at any time within, but not later than, two years after the time when the subject-matter of the proceedings arose.

Marginal note:Violation or offence

• 34. (1) If it is possible to proceed with any act or omission as a violation and it is also possible to proceed with it as an offence, proceeding in one manner precludes proceeding in the other.

• 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 one.

Marginal note:Admissibility of documents

35. In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 25(1) or 27(1) or (4) or given under section 28 or a certificate issued under subsection 37(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation or a prosecution for an offence.

Recovery of Penalties and Amounts

Marginal note:Debts to Her Majesty

• 36. (1) A penalty imposed under this Act and an amount referred to in subsection 27(4) each constitute 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:Time limit

  (2) No proceedings to recover such a debt may be commenced later than seven years after the debt became payable.

• Marginal note:Proceeds payable to Receiver General

  (3) Each such debt is payable to the Receiver General.

Marginal note:Certificate

• 37. (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 36(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.

OFFENCES

Marginal note:Contravention — section 5, 13 or 14 or subsection 16(1)

• 38. (1) Every person who contravenes section 5 or subsection 16(1) or an order made under section 13 or 14 is guilty of an offence and liable on summary conviction

  • (a) in the case of an individual, to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 18 months, or to both; and

  • (b) in any other case, to a fine not exceeding $250,000.

• Marginal note:Contravention — section 15 or subsection 18(5) or (6)

  (2) Every person who contravenes subsection 18(5) or (6) or an order made under section 15 is guilty of an offence and liable on summary conviction

  • (a) in the case of an individual, to a fine not exceeding $25,000 or to imprisonment for a term not exceeding six months, or to both; and

  • (b) in any other case, to a fine not exceeding $125,000.

Marginal note:Jurisdiction — contravention outside Canada

• 39. (1) If a person is alleged to have committed an act or omission that is a contravention of section 5 because of the application of section 6, proceedings in relation to that contravention may, whether or not the person is in Canada, be commenced in any territorial division in Canada, and the person may be tried and punished in respect of that offence in the same manner as if it had been committed in that territorial division.

• Marginal note:Appearance of accused at trial

  (2) The provisions of the Criminal Code, including their exceptions, relating to requirements that an accused appear at and be present during proceedings apply in respect of proceedings commenced in a territorial division under subsection (1).

• Marginal note:Offence dealt with outside Canada

  (3) If a person is alleged to have committed an act or omission referred to in subsection (1) and the person has been dealt with outside Canada for the contravention in a manner that, if the person had been dealt with in Canada for the contravention in that manner, would allow the person to plead autrefois acquit, autrefois convict or pardon, the person is deemed to have been so dealt with in Canada.