Canada Shipping Act, 2001 (S.C. 2001, c. 26)

Assurances of Compliance and Notices of Violation

Marginal note:If reasonable grounds to believe a violation

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

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

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

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

    • (iii) sets out the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel would have been liable to pay if the assurance had not been entered into; or

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

    • (i) the penalty, fixed by or within the range fixed by the regulations made under this Part, for the violation that the person or vessel is liable to pay,

    • (ii) the period, being thirty days after the notice is served, within which the penalty must be paid or a review of the notice requested, and

    • (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review 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 with whom or vessel with which the assurance of compliance was entered into is unable to comply with it because of reasons beyond the person’s or vessel’s control.

• Marginal note:Short-form descriptions in notices of violation

  (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

• 230 (1) A person who, or vessel that, enters into an assurance of compliance 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 who, or vessel 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 section 231.1, request 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 232(1)(b) of the facts of the violation and the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

231 If the Minister is satisfied that an assurance of compliance has been complied with, the Minister must cause a notice to that effect to be served on the person or vessel and, on the service of the notice,

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

• (b) any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel.

Marginal note:When assurance of compliance not complied with

• 231.1 (1) If the Minister is of the opinion that a person who, or vessel that, has entered into an assurance of compliance has not complied with it, the Minister may cause a notice of default to be served on the person or vessel to the effect that, unless a member determines under section 231.2, or an appeal panel decides under section 232.2, that the assurance has been complied with,

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

  • (b) the security deposited under subparagraph 229(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) A notice under subsection (1) must include the address at which, and the date, being 30 days after the notice is served, on or before which, a request for a review may be filed.

• Marginal note:No set-off

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

Marginal note:Request for review

• 231.2 (1) A person or vessel served with a notice under subsection 231.1(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review.

• Marginal note:Time and place for review

  (2) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.

• Marginal note:Review procedure

  (3) The member of the Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity 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 vessel did not comply with the assurance of compliance referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.

• Marginal note:Certain defences not available

  (5) A person or vessel named in a notice of default does not have a defence by reason that the person or vessel exercised due diligence to comply with the assurance of compliance.

• Marginal note:Determination

  (6) The member may confirm the Minister’s decision or determine that the person or vessel has complied with the assurance of compliance.

Marginal note:Return of security

231.3 Any security deposited under subparagraph 229(1)(a)(ii) must be returned to the person or vessel if

• (a) the person or vessel pays double the amount of the penalty set out in the assurance of compliance in accordance with a notice of default under section 231.1; or

• (b) a member determines under section 231.2, or an appeal panel decides under section 232.2, that the assurance of compliance has been complied with.

Marginal note:Notice of violation

• 232 (1) A person or vessel served with a notice of violation under paragraph 229(1)(b) must

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

  • (b) within thirty days after being 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 of the facts of the violation is not requested, the person or vessel is deemed to have committed the violation in respect of which the notice was served.

Marginal note:Time and place for review

• 232.1 (1) On receipt of a request filed under paragraph 232(1)(b), the Tribunal must appoint a time and place for the review and must notify the Minister and the person who, or vessel that, filed the request of the time and place in writing.

• Marginal note:Review procedure

  (2) The member of the Tribunal assigned to conduct the review must provide the Minister and the person or vessel with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

• Marginal note:Burden of proof

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

• Marginal note:Determination

  (4) The member may confirm the Minister’s decision or, subject to any regulations made under paragraph 244(h), substitute his or her own determination.

Marginal note:Right of appeal

• 232.2 (1) The Minister or the person who, or vessel that, requested the review may, within 30 days after the determination, appeal a determination made under subsection 231.2(6) or 232.1(4) to the Tribunal.

• Marginal note:Loss of right of appeal

  (2) A party that does not appear at a 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) The appeal panel of the Tribunal assigned to hear the appeal may

  • (a) in the case of a determination made under subsection 231.2(6), dismiss the appeal or allow the appeal and substitute its own decision; or

  • (b) in the case of a determination made under subsection 232.1(4), dismiss the appeal, or allow the appeal and, subject to regulations made under paragraph 244(h), substitute its own decision.

Choice of Proceedings

Marginal note:How contravention may be proceeded with

233 If a contravention can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that contravention as a violation or recommend that it be proceeded with as an offence, but it may be proceeded with only as one or the other.

Recovery of Debts

Marginal note:Debts due to Her Majesty

234 The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in a court of competent jurisdiction:

• (a) unless a review of the amount of the penalty is requested under paragraph 232(1)(b), the amount of a penalty set out in a notice of violation, from the time the notice is served;

• (b) the amount that a notice of default served under subsection 231.1(1) provides that a person is liable to pay, from the time the notice is served;

• (c) the amount of a penalty determined by a member after a review under section 232.1, or decided by an appeal panel after an appeal under section 232.2, from the time of the respective determination or decision; and

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

Marginal note:Certificate

• 235 (1) All or part of a debt referred to in section 234 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:Judgments

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

Rules of Law about Violations

Marginal note:Violations are not offences

236 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Common law principles

237 Every rule and principle of the common law that renders any circumstance a justification or an excuse in relation to a charge for an offence under a relevant provision applies in respect of a violation to the extent that it is not inconsistent with this Act.

Marginal note:Vicarious liability — Canadian maritime document holders

• 238 (1) The holder of a Canadian maritime document is liable for a violation that is committed in respect of any matter that relates to an activity or a requirement under that document, whether or not the person or vessel that actually committed the violation is identified or proceeded against in accordance with this Act.

• Marginal note:Vicarious liability — acts of employees and agents

  (2) A person or vessel is liable for a violation that is committed by an employee or agent of the person or vessel acting in the course of the employee’s employment or within the scope of the agent’s authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act.