Broadcasting Act (S.C. 1991, c. 11)

Marginal note:Limitation

34.3 No proceedings for an offence under section 34.2 are to be instituted more than two years after the time when the subject-matter of the proceedings arose.

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.