Pilotage Act (R.S.C., 1985, c. P-14)

Marginal note:Assurance of compliance or notice of violation

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

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

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

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

    • (iii) sets out the amount of the penalty that the person or ship would have been liable to pay for the violation if the assurance had not been entered into; or

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

    • (i) the amount of the penalty that the person or ship is liable to pay for the violation,

    • (ii) the period, being 30 days after the day on which the notice is served, within which the penalty is to be paid or a review is to be requested, and

    • (iii) particulars of the manner in which, and the place at which, the penalty is to be paid or a review is to be 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 or ship is unable to comply with the assurance of compliance for reasons beyond the person’s or ship’s control.

• Marginal note:Short-form description

  (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

• 46.28 (1) A person or ship that enters into an assurance of compliance under paragraph 46.27(1)(a) 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 or ship that enters into an assurance of compliance may, within 48 hours after the assurance is signed, unless a notice of default is served within that period under subsection 46.3(1), file a request with the Tribunal for 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 paragraph 46.33(1)(b) of the facts of the violation and of the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

46.29 If the Minister is of the opinion that a person or ship that has entered into an assurance of compliance under paragraph 46.27(1)(a) has complied with it, he or she shall cause a notice to that effect to be served on the person or ship and, on the service of the notice,

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

• (b) any security deposited under subparagraph 46.27(1)(a)(ii) is to be returned to the person or ship.

Marginal note:When assurance of compliance not complied with

• 46.3 (1) If the Minister is of the opinion that a person or ship that has entered into an assurance of compliance under paragraph 46.27(1)(a) has not complied with it, the Minister may cause a notice of default to be served on the person or ship to the effect that, unless a member determines under section 46.31, or an appeal panel decides under section 46.34, that the assurance has been complied with,

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

  • (b) the security deposited under subparagraph 46.27(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) The notice of default is to include the place at which and the date being 30 days after the day on which the notice is served, on or before which a request for a review may be filed, and the particulars concerning the procedure for requesting a review.

• Marginal note:No set-off or compensation

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

Marginal note:Request for review

• 46.31 (1) A person or ship served with a notice under subsection 46.3(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the Minister’s decision made under that subsection.

• Marginal note:Date, time and place for review

  (2) On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal who is assigned to conduct the review shall provide the Minister and the person or ship with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (4) The burden is on the Minister to establish that the person or ship did not comply with the assurance of compliance referred to in the notice. The person is not required, and is not to be compelled, to give any evidence or testimony in the matter.

• Marginal note:Defence not available

  (5) Despite subsections 46.26(8) and (9), a person or ship does not have a defence by reason that the person or ship exercised due diligence to comply with the assurance of compliance.

• Marginal note:Determination by member

  (6) At the conclusion of the review, the member who conducts the review may confirm the Minister’s decision or determine that the person or ship has complied with the assurance of compliance and shall without delay inform the parties of his or her decision.

Marginal note:Return of security

46.32 Any security deposited under subparagraph 46.27(1)(a)(ii) is to be returned to the person or ship if

• (a) a notice is served under subsection 46.3(1) and the person or ship pays double the amount of the penalty set out in the assurance of compliance; or

• (b) a member determines under subsection 46.31(6), or an appeal panel decides under subsection 46.34(3), that the assurance has been complied with.

Marginal note:Notice of violation — option

• 46.33 (1) A person or ship served with a notice of violation under paragraph 46.27(1)(b) may

  • (a) pay the amount of the penalty; or

  • (b) within 30 days after the day on which the notice is served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

• Marginal note:When review not requested

  (2) If a review is not requested within the period referred to in paragraph (1)(b) or the amount of the penalty is paid, the person or ship is considered to have committed the violation in respect of which the notice is served and proceedings in respect of the violation are ended.

• Marginal note:Date, time and place for review

  (3) On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

• Marginal note:Review procedure

  (4) The member of the Tribunal assigned to conduct the review shall provide the Minister and the person or ship with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

  (5) The burden is on the Minister to establish that the person or ship committed the violation referred to in the notice. The person is not required, and is not to be compelled, to give any evidence or testimony in the matter.

• Marginal note:Determination by member

  (6) At the conclusion of the review, the member who conducts the review shall, without delay and in writing, inform the Minister and the person or ship

  • (a) that the person or ship has not committed a violation, in which case, subject to section 46.34, no further proceedings under this Act are to be taken against the person or ship in respect of the alleged violation; and

  • (b) that the person or ship has committed a violation, in which case, subject to subsections 46.26(4) and (5) and the regulations, the member shall inform the Minister and the person or ship of the amount determined by the member to be payable to the Tribunal by or on behalf of the person or ship and the period within which it is to be paid.

Marginal note:Right of appeal

• 46.34 (1) The Minister or the person or ship that requested the review may, within 30 days after the day on which a determination is made under subsection 46.31(6) or 46.33(6), appeal the determination to the Tribunal.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at the review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

• Marginal note:Disposition of appeal

  (3) At the conclusion of the review, the appeal panel of the Tribunal that is assigned to hear the appeal may

  • (a) in the case of a determination made under subsection 46.31(6), dismiss the appeal, or allow the appeal and substitute its own decision; or

  • (b) in the case of a determination made under subsection 46.33(6), dismiss the appeal, or allow the appeal and, subject to subsections 46.26(4) and (5) and the regulations, substitute its own decision.

• Marginal note:Notice of decision

  (4) The appeal panel shall inform the parties of its decision without delay and shall specify the period within which any amount determined by the appeal panel to be payable to the Tribunal is to be paid.

Recovery of Debts

Marginal note:Debts due to Her Majesty

• 46.35 (1) The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court or any other court of competent jurisdiction:

  • (a) the amount of a penalty set out in a notice of violation referred to in paragraph 46.27(1)(b), from the expiry of the period specified in the notice for the payment of that amount, unless a review is requested under subsection 46.33(1);

  • (b) the amount of a penalty set out in a notice of default referred to in subsection 46.3(1), from the date the notice is served, unless a review is requested under subsection 46.31(1);

  • (c) the amount of a penalty determined by a member under section 46.33, or decided by an appeal panel under section 46.34, from the expiry of the period specified in the decision for the payment of that amount; and

  • (d) the amount of any costs and expenses referred to in subsection (3).

• Marginal note:Limitation or prescription period

  (2) Proceedings to recover a debt referred to in subsection (1) may be commenced no later than five years after the day on which the debt becomes payable.

• Marginal note:Liability

  (3) A person or ship that is liable to pay an amount referred to in paragraph (1)(a), (b) or (c) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.

Marginal note:Certificate of default

• 46.36 (1) All or part of a debt referred to in subsection 46.35(1) in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.

• Marginal note:Effect of registration

  (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 proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all costs and expenses attendant on its registration.

General

Marginal note:Manner of service

• 46.37 (1) A notice referred to in any of sections 46.27, 46.29, 46.3 and 46.45 is to be served

  • (a) in the case of an individual,

    • (i) by leaving a copy of it with the individual at any place or with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence or, in the case of an individual under the age of 18, with a parent or other person having custody of them or exercising parental authority over them, or

    • (ii) by sending a copy of it by registered mail, courier or fax or other electronic means to the individual’s last known address or usual place of residence;

  • (b) in the case of a person other than an individual,

    • (i) by leaving a copy of it with their representative or with an officer or other individual who appears to control or manage the person’s or representative’s head office or place of business, or

    • (ii) by sending a copy of it by registered mail, courier or fax or other electronic means to their representative, to an individual referred to in subparagraph (i) or to the person’s or representative’s head office or place of business; and

  • (c) in the case of a ship,

    • (i) by delivering a copy of it personally to the master or another individual who is, or appears to be, in charge of the ship,

    • (ii) by posting a copy of it on any conspicuous part of the ship,

    • (iii) by leaving a copy of it with the owner or operator of the ship, with the owner’s or operator’s representative or with an officer or other individual who appears to control or manage the owner’s, operator’s or representative’s head office or place of business, or

    • (iv) by sending a copy of it by registered mail, courier or fax or other electronic means to the ship or to a person referred to in subparagraph (i) or (iii) or to their head office or place of business.

• Marginal note:Proof of service

  (2) Service may be proved by

  • (a) an acknowledgement of service signed by the person served or on behalf of the person or ship served, specifying the date and location of service;

  • (b) a certificate of service, signed by the person who effected the service, indicating the name of the person or ship served and the means by which and day on which service was effected; or

  • (c) a record of electronic transmission setting out the date and time of transmission.

• Marginal note:Date service effective

  (3) In the absence of an acknowledgement of service or a certificate of service, service is considered effective,

  • (a) in the case of service by registered mail or courier, on the 10th day after the day on which the notice is sent, as indicated on the receipt issued by the postal or courier service; and

  • (b) in the case of service by fax or other electronic means, on the day on which it is sent, as indicated on the record of transmission.