Budget Implementation Act, 2017, No. 1 (S.C. 2017, c. 20)

Marginal note:Statutory Instruments Act

251.17 The Statutory Instruments Act does not apply in respect of payment orders, notices of unfounded complaint, notices of voluntary compliance or orders to debtors.

Marginal note:Statutory Instruments Act

251.17 The Statutory Instruments Act does not apply in respect of internal audit orders, payment orders, notices of unfounded complaint, notices of voluntary compliance or orders to debtors.

Marginal note:Statutory Instruments Act

251.17 The Statutory Instruments Act does not apply in respect of internal audit orders, compliance orders, payment orders, notices of unfounded complaint, notices of voluntary compliance or orders to debtors.

• (a) contravenes any provision of this Part or the regulations, other than a provision of Division IX, subsection 239.1(2), 239.2(1), 251.001(9) or 252(2) or any regulation made under section 227 or paragraph 264(a);

Marginal note:Publication

259.2 The Minister may, subject to the regulations, make public the name of an employer convicted of an offence under this Part, the nature of the offence, the punishment imposed and any other information prescribed by regulation.

PART IVAdministrative Monetary Penalties

Interpretation and Application

Marginal note:Definitions

• 268 (1) The following definitions apply in this Part.

  department

  department means a department in, or other portion of, the federal public administration to which Part II applies, as provided under subsection 123(2). (ministère)

  employer

  employer has,

  • (a) in respect of a violation related to Part II, the same meaning as in subsection 122(1); and

  • (b) in respect of a violation related to Part III, the same meaning as in section 166. (employeur)

  penalty

  penalty means an administrative monetary penalty imposed under this Part for a violation. (pénalité)

• Marginal note:Application — department

  (2) This Part applies to a department and to persons employed in a department only in respect of a violation that is related to Part II.

Purpose

Marginal note:Purpose of Part

269 The purpose of this Part is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient penalty system to promote compliance with Parts II and III of this Act.

Regulations

Marginal note:Regulations

• 270 (1) 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 Part II or III or of any regulations made under those Parts,

    • (ii) the contravention of any direction, or of any direction of any specified class of directions, issued under any provision of Part II or of any regulations made under that Part,

    • (iii) the contravention of any order, or of any order of any specified class of orders, made or issued under any provision of Part II or III or of any regulations made under those Parts, or

    • (iv) the failure to comply with any condition, or with any condition of any specified class of conditions, of a permit issued under section 176;

  • (b) respecting the determination of, or the method of determining, the amount payable as the penalty for each violation, penalties which may be different for individuals and for other persons and departments;

  • (c) respecting the circumstances under which, the criteria by which and the manner in which a penalty may be reduced;

  • (d) respecting the determination of a lesser amount than the penalty imposed that may be paid in complete satisfaction of the penalty if paid within the time and manner prescribed by regulation;

  • (e) respecting the service of documents required or authorized under this Part, including the manner and proof of service and the circumstances under which documents are deemed to be served;

  • (f) prescribing the method of calculating and determining the regular rate of wages for the purpose of section 288;

  • (g) prescribing anything that by this Part is to be prescribed; and

  • (h) generally, for carrying out the purposes and provisions of this Part.

• Marginal note:Restriction — amount of penalty

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation may not exceed $250,000.

Minister’s Powers

Marginal note:Powers regarding notices of violation

271 The Minister may

• (a) establish the form of notices of violation;

• (b) designate persons, or classes of persons, who are authorized to issue notices of violation; and

• (c) establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Delegation

272 Subject to any terms and conditions specified by the Minister, the Minister may delegate to any qualified person or class of persons any of the powers the Minister is authorized to exercise or any of the duties or functions the Minister is authorized to perform for the purposes of this Part.

Commission of Violations

Marginal note:Violations

273 Every person or department that contravenes or fails to comply with a provision, direction, order or condition designated by regulations made under paragraph 270(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

Marginal note:Liability of parties to violation

274 If a corporation or a department commits a violation, any of the following persons 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 or department has been proceeded against in accordance with this Part:

• (a) any officer, director, agent or mandatary of the corporation;

• (b) any senior official in the department; or

• (c) any other person exercising managerial or supervisory functions in the corporation or department.

Marginal note:Proof of violation — employees

275 In any proceedings under this Part against a person or a department 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 or of the department, whether or not the employee or agent or mandatary has been identified or proceeded against in accordance with this Part.

Marginal note:Notice of violation

• 276 (1) If a person designated under paragraph 271(b) has reasonable grounds to believe that a person or a department has committed a violation, the designated person may issue a notice of violation and shall cause it to be served on the person or on the department in accordance with the regulations.

• Marginal note:Contents

  (2) The notice of violation shall

  • (a) name the person or department that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the penalty for the violation;

  • (d) inform the person or department of their right to contest the facts of the alleged violation or the penalty, by way of review and appeal, and of the procedure to be followed to exercise that right;

  • (e) inform the person or department of the manner of paying the penalty set out in the notice; and

  • (f) inform the person or department 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 for the penalty set out in the notice.

• Marginal note:Copy given by employer

  (3) If the notice of violation is issued to an employer who has committed a violation by contravening a provision of Part II or a direction issued under that Part, the employer shall, without delay, give a copy of the notice to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).

Rules About Violations

Marginal note:Certain defences not available

• 277 (1) A person or department named in a notice of violation does not have a defence by reason that the person or the department

  • (a) exercised due diligence to prevent the violation; or

  • (b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person or the department.

• 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 Part II or III applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

278 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

• 279 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under Part II or III, and proceeding with it as an offence under Part II or III precludes proceeding with it as a violation under this Part.

• Marginal note:For greater certainty

  (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 period

280 No notice of violation in respect of a violation may be issued more than two years after the day on which the subject-matter of the violation arises.

Reviews

Marginal note:Request for review

281 A person or a department that is served with a notice of violation may, within 30 days after the day on which the notice is served, or within any longer period that the Minister allows, make a request, in the manner prescribed by regulation, to the Minister for a review of the penalty or the facts of the alleged violation, or both.

Marginal note:Variation or cancellation of notice of violation

282 At any time before a request for review in respect of a notice of violation comes before the Minister, a person designated under paragraph 271(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

• 283 (1) On receipt of a request for review made under section 281, the Minister shall conduct the review of the notice of violation.

• Marginal note:Rules of procedure

  (2) The Minister may make rules governing the procedure with respect to reviews under this Part.

• Marginal note:Request treated as an appeal

  (3) The Minister may, if the Minister considers it appropriate in the circumstances, treat the request for review as an appeal, in which case the Minister shall so inform the applicant and refer the request for review to the Board, and the Board shall be considered to have an appeal before it for the purposes of this Part.

Marginal note:Object of review

• 284 (1) The Minister 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 applicant committed the violation, or both.

• Marginal note:Correction of penalty

  (2) If the Minister determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Minister shall correct the amount of the penalty.

• Marginal note:Decision

  (3) The Minister shall make a decision in writing and serve the applicant with a copy of the decision, with reasons.

• Marginal note:Copy given by employer

  (4) If a decision is made with respect to a notice of violation referred to in subsection 276(3), the employer shall, without delay, give a copy of the decision to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).

• Marginal note:Obligation to pay

  (5) If the Minister determines that the applicant committed the violation, the applicant is liable for the penalty that is set out in the decision.

• Marginal note:Decision final

  (6) Subject to the right of appeal under section 285, every decision made under this section is final and shall not be questioned or reviewed in any court.

Appeal

Marginal note:Appeal

• 285 (1) A person or a department may appeal a decision referred to in section 284 to the Board, in writing, within 15 days after the day on which the decision is served.

• Marginal note:Grounds of appeal

  (2) The request for appeal shall contain a statement of the grounds of appeal.

Marginal note:Minister informed of appeal

• 286 (1) The Board shall inform the Minister in writing when an appeal is brought under subsection 285(1) and provide him or her with a copy of the request for appeal.

• Marginal note:Documents provided to Board

  (2) The Minister shall, on request of the Board, provide to the Board a copy of any document that the Minister relied on for the purpose of making the decision being appealed.

• Marginal note:Documents provided to Minister

  (3) The Board shall, on request of the Minister, provide to the Minister a copy of any document that is filed with the Board in the appeal.

• Marginal note:Power of Minister

  (4) The Minister may, in an appeal, present evidence and make representations to the Board.

Marginal note:Object of appeal

• 287 (1) In an appeal under this Part, the Board 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 appellant committed the violation, or both.

• Marginal note:Correction of penalty

  (2) If the Board determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board shall correct the amount of the penalty.

• Marginal note:Decision

  (3) The Board shall make a decision in writing and provide the appellant and the Minister with a copy of the decision, with reasons.

• Marginal note:Copy given by employer

  (4) If a decision is made with respect to a notice of violation referred to in subsection 276(3), the employer shall, without delay, give a copy of the decision to the work place committee or health and safety representative, as those terms are defined in subsection 122(1).

• Marginal note:Obligation to pay

  (5) If the Board determines that the appellant committed the violation, the appellant is liable for the penalty that is set out in the decision.

• Marginal note:Decision final

  (6) Every decision made under this section is final and shall not be questioned or reviewed in any court.

• Marginal note:No review by certiorari, etc.

  (7) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board in any proceedings under this section.

Marginal note:Wages

288 An employee who has been summoned by the Board to attend at an appeal proceeding under this Part and who attends is entitled to be paid by the employer at the employee’s regular rate of wages for the time spent at the proceeding that would otherwise have been time at work.

Responsibility

Marginal note:Payment

289 If a person or a department pays the penalty set out in a notice of violation, the person or the department is considered to have committed the violation and proceedings in respect of it are ended.

Marginal note:Failure to act

290 A person or a department that neither pays a penalty imposed under this Part nor requests a review or an appeal in the specified time is considered to have committed the violation and is liable for the penalty.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 291 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and is recoverable as such in the Federal Court or any other court of competent jurisdiction.

• Marginal note:Limitation period

  (2) No proceedings to recover the debt may be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 292 (1) The Minister may issue a certificate certifying the unpaid amount of any debt referred to in subsection 291(1).

• Marginal note:Registration

  (2) Registration in the Federal Court or in any other court of competent jurisdiction of a certificate issued under subsection (1) has the same force and 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

293 In the absence of evidence to the contrary, a document that appears to be a notice of violation issued under subsection 276(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Burden of proof

294 If the facts of a violation are reviewed or appealed, the person who issued the notice of violation shall establish, on a balance of probabilities, that the applicant or the appellant committed the violation.

Marginal note:Publication

295 The Minister may, subject to the regulations, make public the name of an employer who committed a violation under this Part, the nature of the violation, the amount of the penalty imposed and any other information prescribed by regulation.