Online Streaming Act (S.C. 2023, c. 8)

Marginal note:Broadcasting contrary to Act

32 Every person who contravenes section 31.1 is guilty of an offence punishable on summary conviction and is liable

• (a) in the case of an individual, to a fine of not more than $25,000 for each day that the offence continues; or

• (b) in the case of a corporation, to a fine of not more than $250,000 for each day that the offence continues.

Marginal note:Contravention of regulation or order

33 Every person who contravenes any regulation or order made under this Part is guilty of an offence punishable on summary conviction and is liable

• (a) in the case of an individual, to a fine of not more than $25,000 for a first offence and of not more than $50,000 for each subsequent offence; or

• (b) in the case of a corporation, to a fine of not more than $250,000 for a first offence and of not more than $500,000 for each subsequent offence.

Marginal note:Defence

33.1 A person is not to be found guilty of an offence under section 32 or 33 if they establish that they exercised due diligence to prevent the commission of the offence.

Marginal note:Limitation

34 Proceedings in respect of an offence under section 33 may be instituted within, but not after, two years after the day on which the subject matter of the proceedings arose.

Consultation and Review

Marginal note:Regulations and orders

• 34.01 (1) Every seven years the Commission shall consult with all interested persons with respect to orders made under section 9.1 and regulations and orders made under section 11.1 and shall publish, on the Internet or otherwise, a report on the consultations that also lists the orders and regulations that the Commission proposes to review as a result of the consultations and sets out its plan for conducting the review.

• Marginal note:Publication of report

  (2) The Commission shall publish the first report within seven years after the day on which this subsection comes into force and, subsequently, within seven years after the day on which the most recent report is published.

• Marginal note:Tabling of reports

  (3) The Minister shall cause a copy of all reports published under subsections (1) and (2) to be tabled before each House of Parliament.

Marginal note:Defence

34.21 A person is not to be found guilty of an offence under section 34.2 if they establish that they exercised due diligence to prevent the commission of the offence.

PART II.2Administrative Monetary Penalties

Marginal note:Violations

• 34.4 (1) Subject to a regulation made under paragraph 34.995(a), a person commits a violation if they

  • (a) contravene a regulation or order made under Part II;

  • (b) contravene the requirement to negotiate in good faith under subsection 9.1(9);

  • (c) carry on a broadcasting undertaking in contravention of section 31.1;

  • (d) charge a subscriber for providing the subscriber with a paper bill in contravention of section 34.1;

  • (e) contravene an undertaking that they entered into under section 34.9;

  • (f) fail to submit information in accordance with a notice issued under section 34.996 to a person designated under paragraph 34.7(a) that the designated person requires by the notice;

  • (g) knowingly make a material misrepresentation of fact in contravention of section 34.997; or

  • (h) contravene any of subsections 42(1) to (4) and (7), 43(1) to (3) and 44(1) to (3) and (6) of the Accessible Canada Act.

• Marginal note:Continued violation

  (2) A violation that is continued on more than one day constitutes a separate violation in respect of each day on which it is continued.

Marginal note:Maximum administrative monetary penalty

• 34.5 (1) Subject to a regulation made under paragraph 34.995(b), a person who commits a violation is liable to an administrative monetary penalty

  • (a) in the case of an individual, of not more than $25,000 for a first violation and of not more than $50,000 for each subsequent violation; or

  • (b) in any other case, of not more than $10 million for a first violation and of not more than $15 million for each subsequent violation.

• Marginal note:Criteria for penalty

  (2) 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 by the person who committed the violation with this Act, the regulations and the decisions and orders made by the Commission under this Act;

  • (c) the person’s history with respect to any previous undertaking entered into under section 34.9;

  • (d) any benefit that the person obtained from the commission of the violation;

  • (e) the person’s ability to pay the penalty;

  • (f) any factors established by regulation;

  • (g) the purpose of the penalty, which is to promote compliance with this Act — or, in the case of a penalty imposed for a violation referred to in paragraph 34.4(1)(h), compliance with the Accessible Canada Act — and not to punish; and

  • (h) any other relevant factor.

• Marginal note:Purpose of penalty

  (3) The purpose of the penalty is to promote compliance with this Act — or, in the case of a penalty imposed for a violation referred to in paragraph 34.4(1)(h), compliance with the Accessible Canada Act — and not to punish.

Marginal note:Procedures

• 34.6 (1) Despite subsection 34.8(1), the Commission may impose a penalty in a decision made in the course of a proceeding before it under this Act in which it finds that a violation referred to in section 34.4 has been committed by a person other than the person who entered into an undertaking under section 34.9 in connection with the same act or omission giving rise to the violation.

• Marginal note:For greater certainty

  (2) For greater certainty, the Commission is not to impose a penalty under subsection (1) on a person who has not been given the opportunity to be heard.

Marginal note:Designation

34.7 The Commission may

• (a) designate persons or classes of persons who are authorized to issue notices of violation or to accept an undertaking under section 34.9; and

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

Marginal note:Notice of violation

• 34.8 (1) A person who is authorized to issue notices of violation may, if they believe on reasonable grounds that another person has committed a violation, issue a notice of violation and cause it to be served on that other person.

• Marginal note:Contents

  (2) The notice of violation shall set out

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

  • (b) the act or omission giving rise to the violation, as well as a reference to the provision that is at issue;

  • (c) the administrative monetary penalty that the person is liable to pay, as well as the time and manner in which the person may pay the penalty;

  • (d) a statement informing the person that they may pay the penalty or make representations to the Commission with respect to the violation and the penalty and informing them of the time and manner for making such representations; and

  • (e) a statement informing the person that, if they do not pay the penalty or make representations in accordance with the notice, they will be deemed to have committed the violation and the penalty may be imposed.

Marginal note:Undertaking

• 34.9 (1) A person may enter into an undertaking at any time. The undertaking is valid upon its acceptance by the Commission or, if it is entered into by a person other than the Corporation, upon its acceptance by the Commission or the person designated to accept an undertaking.

• Marginal note:Requirements

  (2) An undertaking referred to in subsection (1)

  • (a) shall set out every act or omission that is covered by the undertaking;

  • (b) shall set out every provision that is at issue;

  • (c) may contain any conditions that the Commission or the person designated to accept the undertaking considers appropriate; and

  • (d) may include a requirement to pay a specified amount.

• Marginal note:Before notice of violation

  (3) If a person enters into an undertaking, a notice of violation shall not be served on them in connection with any act or omission referred to in the undertaking.

• Marginal note:After notice of violation

  (4) If a person enters into an undertaking after a notice of violation is served on them, 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:Powers respecting hearings

34.91 For greater certainty, the Commission has all the powers, rights and privileges referred to in section 16 if, in a proceeding in respect of a violation, it holds a public hearing under subsection 18(3).

Marginal note:Payment of penalty

• 34.92 (1) If a person who is served with a notice of violation pays the penalty set out in the notice, they are deemed to have committed the violation and the proceedings in respect of it are ended.

• Marginal note:Decision of Commission

  (1.1) The Commission shall, in a timely manner, issue a decision with respect to subsection (1) confirming that the person is deemed to have committed the violation.

• Marginal note:Representations to Commission and decision

  (2) If a person who is served with a notice of violation makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the person committed the violation. If the Commission decides that the person committed the violation, it may

  • (a) impose the administrative monetary penalty set out in the notice, a lesser penalty or no penalty; and

  • (b) suspend payment of the administrative monetary penalty subject to any conditions that the Commission considers necessary to ensure compliance with this Act.

• Marginal note:Penalty

  (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 Commission may impose the penalty.

• Marginal note:Copy of decision and notice of rights

  (4) The Commission shall cause a copy of any decision made under subsection (1.1), (2) or (3) to be issued and served on the person together with a notice of the person’s right to apply for leave to appeal under section 31.

Marginal note:Evidence

34.93 In a proceeding in respect of a violation, a notice purporting to be served under subsection 34.8(1) or a copy of a decision purporting to be served under subsection 34.92(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Defence

• 34.94 (1) A person is not to be found liable for a violation, other than a violation under paragraph 34.4(1)(b) or (g), if they establish that they exercised due diligence to prevent its commission.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that makes any circumstance a justification or excuse in relation to a charge for an offence applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Directors, officers, etc., of corporations

34.95 An officer, director or agent or mandatary of a corporation other than the Canadian Broadcasting 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:Vicarious liability

34.96 A person, other than the Corporation, is liable for a violation that is committed by their employee acting within the scope of their employment or their agent or mandatary acting within the scope of their authority, whether or not the employee or agent or mandatary is identified or proceeded against.

Marginal note:Limitation or prescription period

• 34.97 (1) Proceedings in respect of a violation may be instituted within, but not after, three years after the day on which the subject matter of the proceedings became known to the Commission.

• Marginal note:Certificate

  (2) A document that appears to have been issued by the secretary to the Commission, certifying the day on which the subject matter of any proceedings became known to the Commission, is admissible in evidence without proof of the signature or official character of the person who appears to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

Marginal note:Information may be made public

34.98 The Commission may make public

• (a) the name of a person who enters into an undertaking under section 34.9, the nature of the undertaking including the acts or omissions and provisions at issue, the conditions included in the undertaking and the amount payable under it, if any; or

• (b) the name of a person who is deemed, or is found by the Commission or on appeal, to have committed a violation, the acts or omissions and provisions at issue and the amount of the penalty imposed, if any.

Marginal note:Special case concerning the Corporation — public hearing

• 34.99 (1) Despite subsections 34.6(1) and 34.92(2) and (3), the Commission shall not impose a penalty under any of those subsections on the Corporation for a violation other than the one referred to in paragraph 34.4(1)(h) without holding a public hearing on the matter.

• Marginal note:Place of hearing

  (2) A public hearing under subsection (1) may be held at any place in Canada designated by the Chairperson of the Commission.

• Marginal note:Notice of hearing

  (3) The Commission shall cause notice of any public hearing to be held by it under subsection (1) to be published in the Canada Gazette and in one or more newspapers of general circulation within any area affected or likely to be affected by the matter to which the public hearing relates.

• Marginal note:Powers respecting hearings

  (4) The Commission has, in respect of any hearing under subsection (1), with regard to the attendance, swearing and examination of witnesses at the hearing, the production and inspection of documents and other matters necessary or proper in relation to the hearing, all of the powers, rights and privileges that are vested in a superior court of record.

• Marginal note:For greater certainty

  (5) For greater certainty, sections 17, 20 and 21 apply in respect of public hearings under subsection (1).

Marginal note:Report of violation

• 34.991 (1) If the Commission is satisfied, after holding a public hearing on the matter, that the Corporation has committed a violation referred to in any of paragraphs 34.4(1)(a) to (g), the Commission shall forward to the Minister a report setting out the circumstances of the violation, the findings of the Commission, the amount of any penalty imposed, and any observations or recommendations of the Commission in connection with the violation.

• Marginal note:Report to be tabled

  (2) The Minister shall cause a copy of the report referred to in subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the report is received by the Minister.

Marginal note:Violation or offence

• 34.992 (1) If an act or omission can be proceeded with either as a violation or as an offence under this Act, proceeding in one manner precludes proceeding in the other.

• 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.

Marginal note:Receiver General

34.993 An administrative monetary penalty paid or recovered in relation to a violation is payable to the Receiver General.

Marginal note:Debt due to Her Majesty

• 34.994 (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 of the penalty imposed by the Commission in a decision made in the course of a proceeding before it under this Act in which it finds that a violation referred to in section 34.4 has been committed;

  • (b) the amount payable under an undertaking entered into under section 34.9, beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is accepted;

  • (c) 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;

  • (d) if representations are made, either the amount of the administrative monetary penalty that is imposed by the Commission or on appeal, as the case may be, beginning on the day specified by the Commission or the court or, if no day is specified, beginning on the day on which the decision is made; and

  • (e) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (d).

• Marginal note:Limitation period or prescription

  (2) Proceedings to recover a debt may be instituted within, but not after, three years after the day on which the debt becomes payable.

• Marginal note:Certificate of default

  (3) The Commission may issue a certificate for the unpaid amount of any debt referred to in subsection (1).

• Marginal note:Effect of registration

  (4) 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:Regulations

34.995 The Governor in Council may make regulations

• (a) providing for exceptions to any of paragraphs 34.4(1)(a) to (h);

• (b) increasing the maximum administrative monetary penalty amounts set out in subsection 34.5(1);

• (c) for the purpose of paragraph 34.5(2)(f), establishing other factors to be considered in determining the amount of the penalty;

• (d) respecting undertakings referred to in section 34.9;

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

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

PART II.3Submission of Information

Marginal note:Information requirement

34.996 A person designated under paragraph 34.7(a) who believes that a person is in possession of information that is reasonably considered to be relevant for the purpose of verifying whether a violation referred to in section 34.4 has been committed may, by notice, require that person to submit the information to the designated person in the form and manner and within the reasonable time that is stipulated in the notice. A person to whom any such notice is addressed shall comply with the notice.

PART II.4Offence — Material Misrepresentation of Fact

Marginal note:Prohibition

34.997 It is prohibited for any person to knowingly make a material misrepresentation of fact to a person designated under paragraph 34.7(a).

Marginal note:Offence

• 34.998 (1) Every person who contravenes section 34.997 is guilty of an offence punishable on summary conviction and is liable

  • (a) in the case of an individual, to a fine of not more than $10,000 for a first offence and of not more than $25,000 for each subsequent offence; or

  • (b) in any other case, to a fine of not more than $100,000 for a first offence and of not more than $250,000 for each subsequent offence.

• Marginal note:Limitation

  (2) Proceedings in respect of an offence under subsection (1) may be instituted within, but not after, two years after the day on which the subject matter of the proceedings arose.