Energy Safety and Security Act (S.C. 2015, c. 4)
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Assented to 2015-02-26
66. The Act is amended by adding the following after section 202:
Administrative Monetary Penalties
Powers
Marginal note:Regulations
202.01 (1) Subject to section 7, the Governor in Council may make regulations
(a) designating as a violation that may be proceeded with in accordance with this Part
(i) the contravention of any specified provision of this Part or of any of its regulations,
(ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements or orders, made under this Part, or
(iii) the failure to comply with any term or condition of
(A) an operating licence or authorization, or a specified class of operating licences or authorizations, issued under this Part, or
(B) any approval or exemption or a specified class of approvals or exemptions, granted under this Part;
(b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and
(c) respecting the service of documents required or authorized under section 202.06, 202.2 or 202.5, including the manner and proof of service and the circumstances under which documents are considered to be served.
Marginal note:Maximum
(2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.
Marginal note:Powers
202.02 The Board may
(a) establish the form of notices of violation;
(b) designate persons or classes of persons who are authorized to issue notices of violation;
(c) establish, in respect of each violation, a short-form description to be used in notices of violation; and
(d) designate persons or classes of persons to conduct reviews under section 202.4.
Violations
Marginal note:Commission of violation
202.03 (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under paragraph 202.01(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Part and not to punish.
Marginal note:Liability of directors, officers, etc.
202.04 If a corporation commits a violation, any director, officer, or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.
Marginal note:Proof of violation
202.05 In any proceedings under this Part against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee, or agent or mandatary, of the person, whether or not the employee, agent or mandatary is identified or proceeded against in accordance with this Part.
Marginal note:Issuance and service of notice of violation
202.06 (1) If a person designated under paragraph 202.02(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.
Marginal note:Contents
(2) The notice of violation shall
(a) name the person that is believed to have committed the violation;
(b) set out the relevant facts surrounding the violation;
(c) set out the amount of the penalty for the violation;
(d) inform the person of their right, under section 202.2, to request a review with respect to the amount of the penalty or the facts of the violation, and of the period within which that right is to be exercised;
(e) inform the person of the manner of paying the penalty set out in the notice; and
(f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.
Rules about Violations
Marginal note:Certain defences not available
202.07 (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
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 Part applies in respect of a violation to the extent that it is not inconsistent with this Part.
Marginal note:Continuing violation
202.08 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:Violation or offence
202.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.
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 a violation.
Marginal note:Limitation or prescription period
202.1 No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.
Reviews
Marginal note:Right to request review
202.2 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.
Marginal note:Correction or cancellation of notice of violation
202.3 At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 202.02(b) may cancel the notice of violation or correct an error in it.
Marginal note:Review
202.4 (1) On receipt of a request made under section 202.2, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 202.02(d).
Marginal note:Restriction
(2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 202.02(d).
Marginal note:Object of review
202.5 (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.
Marginal note:Determination
(2) The Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.
Marginal note:Correction of penalty
(3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.
Marginal note:Responsibility
(4) If the Board or the person conducting the review determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the notice issued under section 202.06 or as set out in the determination if the amount of the penalty was corrected under subsection (3).
Marginal note:Determination final
(5) A determination made under this section is final and binding and, subject to review by the Trial Division of the Supreme Court of Newfoundland and Labrador, is not subject to appeal or to review by any court.
Marginal note:Burden of proof
202.6 If the facts of a violation are reviewed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
Responsibility
Marginal note:Payment
202.7 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Marginal note:Failure to act
202.8 A person that neither pays the penalty imposed under this Part nor requests a review within the period referred to in section 202.2 is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Marginal note:Debt to Her Majesty
202.9 (1) A penalty constitutes a debt due to Her Majesty in right of the Province and may be recovered in the Trial Division of the Supreme Court of Newfoundland and Labrador.
Marginal note:Limitation period
(2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.
Marginal note:Certificate
202.91 (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 202.9(1).
Marginal note:Registration
(2) Registration in the Trial Division of the Supreme Court of Newfoundland and Labrador of a certificate of non-payment 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.
General
Marginal note:Admissibility of documents
202.92 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 202.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication
202.93 The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
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