Economic Action Plan 2014 Act, No. 2 (S.C. 2014, c. 39)
Full Document:
Assented to 2014-12-16
180. (1) Subsection 10(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) contravenes subsection 5(1.5), or
Marginal note:1989, c. 17, s. 6
(2) Subsection 10(2) of the Act is replaced by the following:
Marginal note:Offences
(2) Every person is guilty of an offence punishable on summary conviction and is liable to a fine not exceeding five thousand dollars, who
(a) contravenes or fails to comply with subsection 8(5) or (6) or 8.1(4); or
(b) does not submit the information required by the inspector under subsection 8(5.1).
181. The Act is amended by adding the following after section 13:
Marginal note:Exemptions
14. (1) The Minister may, by order, subject to any terms and conditions that he or she may specify, exempt any person, class of persons or entity from the application of subsection 4(4) or paragraph 9(1)(b), for any of the following purposes:
(a) national security;
(b) public safety, including with respect to penitentiaries and prisons;
(c) customs and immigration;
(d) national defence;
(e) international relations;
(f) the investigation or prosecution of offences in Canada, including the preservation of evidence;
(g) the protection of property, or the prevention of serious harm to any person; or
(h) for any other purpose prescribed by regulation.
Marginal note:Regulation
(2) The Governor in Council may make regulations for the purpose of paragraph (1)(h).
182. The Act is amended by adding the following after section 15:
ADMINISTRATIVE MONETARY PENALTIES
Marginal note:Commission of violation
15.1 Every contravention of subsection 4(1), (3) or (4) or 5(1.5) constitutes a violation and the person who commits the violation is liable
(a) in the case of an individual, to an administrative monetary penalty not exceeding $25,000 and, for a subsequent contravention, a penalty not exceeding $50,000; or
(b) in any other case, to an administrative monetary penalty not exceeding $10,000,000 and, for a subsequent contravention, a penalty not exceeding $15,000,000.
Marginal note:Criteria for penalty
15.11 (1) The amount of the penalty is to be determined by taking into account the following factors:
(a) the nature and scope of the violation;
(b) the history of compliance with this Act by the person who committed the violation;
(c) any benefit that the person obtained from the commission of the violation;
(d) the person’s ability to pay the penalty;
(e) any factors established by the regulations; and
(f) any other relevant factor.
Marginal note:Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Marginal note:Power of Minister — violation
15.12 The Minister may
(a) designate any person, or any person who is a member of a class of persons, as being authorized to issue notices of violation or to accept undertakings; and
(b) establish, in respect of each violation, a short-form description to be used in notices of violation.
Marginal note:Entry into undertaking
15.13 (1) A person may enter into an undertaking after a notice of violation is served on them.
Marginal note:Contents
(2) The undertaking
(a) shall be accepted by a person who is authorized to accept an undertaking;
(b) shall identify every act or omission that constitutes a violation and that is covered by the undertaking;
(c) shall identify every provision at issue;
(d) may contain any conditions that the person who is authorized to accept an undertaking considers appropriate; and
(e) may include a requirement to pay a specified amount.
Marginal note:Effect of undertaking
(3) If a person enters into an undertaking, the proceeding that is commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.
Marginal note:Failure to respect undertaking
(4) Failure to respect an undertaking constitutes a violation.
Marginal note:Issuance and service
15.14 (1) A person who is authorized to issue notices of violation and who believes, on reasonable grounds, that a person has committed a violation may issue, and shall cause to be served on the person, a notice of violation.
Marginal note:Contents of notice
(2) The notice of violation shall name the person who is believed to have committed the violation, identify the violation and include
(a) the penalty that the person is liable to pay;
(b) a statement as to the right of the person, within 30 days after the day on which the notice is served, or within any longer period that the Minister specifies, to pay the penalty or to make representations with respect to the violation and the penalty, and the manner for doing so; and
(c) a statement indicating that if the person does not pay the penalty or make representations in accordance with the notice, the person is deemed to have committed the violation and the penalty is to be imposed.
Marginal note:Payment
15.15 (1) If a person who is served with a notice of violation pays the penalty proposed in the notice, the person is deemed to have committed the violation and the proceedings in respect of it are ended.
Marginal note:Representations to Minister
(2) If a person who is served with a notice of violation makes representations in accordance with the notice, the Minister shall decide, on a balance of probabilities, after considering any other representations that the Minister considers appropriate, whether the person committed the violation and may, if the Minister so decides, impose the penalty set out in the notice, a lesser penalty or no penalty.
Marginal note:Failure to pay or make representations
(3) If a person who is served with a notice of violation neither pays the penalty nor makes representations in accordance with the notice, the person is deemed to have committed the violation and the penalty is to be imposed.
Marginal note:Copy of decision and notice of rights
(4) The Minister shall cause a copy of any decision made under subsection (2) to be issued and served on the person together with a notice of the person’s right to appeal under section 15.2.
Marginal note:Evidence
15.16 In a proceeding in respect of a violation, a notice purporting to be served under subsection 15.14(1) or a copy of a decision purporting to be served under subsection 15.15(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.
Marginal note:Defence
15.17 (1) It is a defence for a person in a proceeding in relation to a violation to establish that they exercised due diligence to prevent the violation.
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:Vicarious liability — acts of employees and agents and mandataries
15.18 A person is liable for a violation that is committed by an employee of the person acting in the course of the employee’s employment, or by an agent or mandatary of the person acting within the scope of the agent’s or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against.
Marginal note:Officer, director or agent or mandatary of corporations
15.19 An officer, director or agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.
Marginal note:Appeal to Federal Court
15.2 (1) Subject to subsection (2), an appeal may be brought in the Federal Court from a decision made under subsection 15.15(2) within 30 days after the day on which the decision is made.
Marginal note:Appeal on question of fact
(2) An appeal on a question of fact may be brought only with the leave of the Federal Court, an application for which shall be made within 30 days after the day on which the decision is made. The appeal may not be brought later than 30 days after the day on which leave to appeal is granted.
Marginal note:Debts due to Her Majesty
15.21 (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 payable under an undertaking entered into under subsection 15.13(1), beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is entered into;
(b) the amount of the 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 representations are made in accordance with the notice;
(c) if representations are made, either the amount of the penalty that is imposed by the Minister or on appeal, as the case may be, beginning on the day specified by the Minister or the court or, if no day is specified, beginning on the day on which the decision is made; 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:Time limit or prescription
(2) A proceeding to recover such a debt may not be commenced later than five years after the day on which the debt becomes payable.
Marginal note:Receiver General
(3) A penalty paid or recovered in relation to a violation is payable to the Receiver General.
Marginal note:Certificate of default
15.22 (1) The Minister may issue a certificate for the unpaid amount of any debt referred to in subsection 15.21(1).
Marginal note:Effect of registration
(2) Registration of a certificate in the Federal Court has the same effect as a judgment of that Court for a debt of the amount set out in the certificate and all related registration costs.
Marginal note:Time limit or prescription
15.23 (1) A proceeding in respect of a violation may not be commenced later than three years after the day on which the subject-matter of the proceedings becomes known to the Minister.
Marginal note:Certificate of Minister
(2) A document appearing to have been issued by the Minister, certifying the day on which the subject-matter of any proceedings became known to him or her, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.
Marginal note:Publication
15.24 The Minister may make public
(a) the name of a person who committed a violation, the nature of the violation including the acts or omissions, or the provisions at issue and the amount of the penalty; and
(b) the name of a person who enters into an undertaking, the nature of the undertaking including the acts or omissions, or the provisions at issue, the conditions included in the undertaking and, if applicable, the amount of the penalty.
Marginal note:How act or omission may be proceeded with
15.25 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.
Marginal note:For greater certainty
15.26 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.
Marginal note:Regulations
15.27 The Governor in Council may make regulations
(a) designating provisions of this Act whose contravention constitutes a separate violation in respect of each day during which it continues;
(b) for the purpose of paragraph 15.11(1)(e), establishing other factors to be considered in determining the amount of the penalty; and
(c) respecting undertakings entered into under section 15.13.
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