Wrecked, Abandoned or Hazardous Vessels Act (S.C. 2019, c. 1)

Marginal note:Duty to assist

87 The owner of a place that is entered by the Minister of Fisheries and Oceans under subsection 67(1) or by an enforcement officer under subsection 74(1), the person in charge of the place and every person in it must give all assistance to the enforcement officer or that Minister that is reasonably required to enable them to exercise their powers or perform their duties or functions under this Act and must provide them with any document or information, or access to any data, that they may reasonably require.

Obstruction

Marginal note:Obstruction

88 It is prohibited for a person to knowingly give false or misleading information either orally or in writing to, or otherwise knowingly obstruct or hinder, the Minister, the Minister of Fisheries and Oceans, an enforcement officer or any person acting on their behalf or under their direction who is exercising powers or performing duties or functions under this Act.

Administrative Monetary Penalties

Interpretation

Marginal note:Definition of Minister

89 In sections 90 to 108, Minister means the Minister of Transport, except that

• (a) it means the Minister of Fisheries and Oceans in relation to a violation involving

  • (i) the contravention of subsection 19(1) or section 20, or

  • (ii) the contravention of a direction given under subsection 21(1), paragraph 36(c), subsection 37(1), paragraph 67(2)(e), (k) or (m) or subsection 67(3) or (4); and

• (b) it means the minister who gave a direction under paragraph 37(3)(c), in relation to a violation involving the contravention of that direction.

Assurances of Compliance and Notices of Violation

Marginal note:Violation — persons

• 90 (1) Every person that contravenes any of the following commits a violation and is liable to a penalty:

  • (a) subsection 30(1) or 32(1), section 33 or subsection 34(1);

  • (b) subsection 19(1), section 20 or 31 or subsection 58(1) or (3), 60(1) or 82(7) or (8);

  • (c) a direction given under subsection 21(1), paragraph 30(3)(c) or 36(c) or subsection 37(1) or (2);

  • (d) a direction given under paragraph 37(3)(c), 58(4)(b), 67(2)(e), (k) or (m), (3)(a) or (4)(b), 74(2)(e), (k) or (m) or (3)(a) or 84(1)(b);

  • (e) a provision the contravention of which is designated as a violation by a regulation made under paragraph 109(a).

• Marginal note:Violation — vessels

  (2) Every vessel that contravenes any of the following commits a violation and is liable to a penalty:

  • (a) a direction given under paragraph 30(3)(c) or 36(c);

  • (b) a direction given under paragraph 37(3)(c) or 67(3)(b), subsection 67(4), paragraph 74(3)(b) or subsection 74(4);

  • (c) a provision the contravention of which is designated as a violation by a regulation made under paragraph 109(a).

• Marginal note:Continuing violation

  (3) 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:Penalty

  (4) The maximum amount payable as the penalty for each violation set out in paragraph (1)(a) or (c) or (2)(a) is, in the case of an individual, $50,000, and in the case of any other person or vessel, $250,000.

• Marginal note:Penalty

  (5) The maximum amount payable as the penalty for each violation set out in paragraph (1)(b), (d) or (e) or (2)(b) or (c) is, in the case of an individual, $5,000 and, in the case of any other person or vessel, $25,000.

• Marginal note:Purpose of penalty

  (6) The purpose of the penalty is to promote compliance with this Act and not to punish.

• Marginal note:Clarification

  (7) If a contravention of a provision may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other.

• Marginal note:Nature of violation

  (8) 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:Due diligence defence — persons

  (9) A person must not be found to be liable for a violation under this Act, other than in relation to a contravention of subsection 34(1), if they establish that they exercised due diligence to prevent its commission.

• Marginal note:Due diligence defence — vessels

  (10) A vessel must not be found to be liable for a violation under this Act if the person that committed the act or omission that constitutes the violation establishes that they exercised due diligence to prevent its commission.

Marginal note:Assurance of compliance or notice of violation

• 91 (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 that the person or vessel 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 vessel, a notice of violation that names the person or vessel, identifies the violation and sets out

    • (i) the penalty that the person or vessel 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 must be paid or a review must be requested, and

    • (iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review must 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 vessel is unable to comply with the assurance of compliance for 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

• 92 (1) A person or vessel that enters into an assurance of compliance under paragraph 91(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 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 subsection 94(1), file a request with the Transportation Appeal 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 97(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

93 If the Minister is satisfied that a person or vessel that has entered into an assurance of compliance under paragraph 91(1)(a) has complied with it, he or she 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 91(1)(a)(ii) must be returned to the person or vessel.

Marginal note:When assurance of compliance not complied with

• 94 (1) If the Minister is of the opinion that a person or vessel that has entered into an assurance of compliance under paragraph 91(1)(a) 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 95, or an appeal panel decides under section 98, 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 91(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

• Marginal note:Contents of notice

  (2) The notice must include the address 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

  (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:Manner of service

• 94.1 (1) A notice referred to in any of sections 91, 93, 94 and 108 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;

  • (c) in the case of a vessel,

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

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

    • (iii) by leaving a copy of it with the owner or operator of the vessel, 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 vessel 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 or on behalf of the person or vessel 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 vessel 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; or

  • (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.

Marginal note:Request for review

• 95 (1) A person or vessel served with a notice under subsection 94(1) may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal on application may allow, file a written request for a review of the Minister’s decision made under that subsection with the Tribunal.

• Marginal note:Time and place for review

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

• Marginal note:Review procedure

  (3) The member of the Transportation Appeal Tribunal who is assigned to conduct the review must provide the Minister and the person or vessel 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 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) Despite subsections 90(9) and (10), a person or vessel 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 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 vessel has complied with the assurance of compliance and must without delay inform the parties of his or her decision.