Online News Act (S.C. 2023, c. 23)

Marginal note:Maximum amount of penalty

• 61 (1) Subject to any regulations made under paragraph 76(b), an individual or entity that 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 the case of an entity, 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

  • (a) the nature and scope of the violation;

  • (b) the history of compliance with this Act, the regulations and orders made under this Act by the individual or entity that committed the violation;

  • (c) the history of the individual or entity with respect to any previous undertaking entered into under section 65;

  • (d) any benefit that the individual or entity obtained from the commission of the violation;

  • (e) the ability of the individual or entity to pay the penalty;

  • (f) any factors established by regulations made under paragraph 76(c);

  • (g) the purpose of the penalty; and

  • (h) any other relevant factor.

• Marginal note:Purpose of penalty

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

Marginal note:Procedures

• 62 (1) Despite subsection 64(1), the Commission may impose a penalty in a decision made in the course of a proceeding before it under this Act, including a proceeding in respect of a complaint made under section 52, in which it finds that a violation referred to in section 60 has been committed by an individual or entity other than the individual or entity that entered into an undertaking under section 65 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 an individual or entity that has not been given the opportunity to be heard.

Marginal note:Designation

63 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 65; and

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

Marginal note:Notice of violation

• 64 (1) A person who is authorized to issue notices of violation may, if they believe on reasonable grounds that an individual or entity has committed a violation, other than a violation in respect of a contravention of section 51, issue a notice of violation and cause it to be served on that individual or entity.

• Marginal note:Contents

  (2) The notice of violation must set out

  • (a) the name of the individual or entity that is believed to have committed the 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 penalty that the individual or entity is liable to pay, as well as the time and manner in which the individual or entity may pay the penalty;

  • (d) a statement informing the individual or entity 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 representations; and

  • (e) a statement informing the individual or entity 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

• 65 (1) An individual or entity may enter into an undertaking at any time. The undertaking is valid on its acceptance by the Commission or the person designated to accept an undertaking.

• Marginal note:Requirements

  (2) An undertaking

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

  • (b) must 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:No service of notice of violation

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

• Marginal note:Undertaking after service of notice of violation

  (4) If an individual or entity enters into an undertaking after a notice of violation is served on them, the proceeding that is commenced by the notice is ended in respect of that individual or entity in connection with any act or omission referred to in the undertaking.

Marginal note:Payment of penalty

• 66 (1) If an individual or entity that 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:Representations to Commission and decision

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

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

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

• Marginal note:Penalty

  (3) If an individual or entity that is served with a notice of violation neither pays the penalty nor makes representations in accordance with the notice, the individual or entity is deemed to have committed the violation and the Commission may impose the penalty.

• Marginal note:Copy of decision

  (4) The Commission must cause a copy of any decision made under subsection (2) or (3) to be issued and served on the individual or entity.

Marginal note:Evidence

67 In a proceeding in respect of a violation, a notice purporting to be served under subsection 64(1) or a copy of a decision purporting to be served under subsection 66(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Burden of proof

68 In a proceeding in respect of a violation in respect of a contravention of section 51, the burden of establishing that any discrimination is not unjust or that any preference or disadvantage is not undue or unreasonable is on the individual or entity that is believed to have contravened that section.

Marginal note:Defence

• 69 (1) An individual or entity is not to be found liable for a violation, other than a violation in respect of a contravention of section 22, 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.

70 A director, officer or agent or mandatary of an entity 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 entity is proceeded against.

Marginal note:Vicarious liability

71 An individual or entity 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

• 72 (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 made public

73 The Commission must make public

• (a) the name of an individual or entity that enters into an undertaking under section 65, 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; and

• (b) the name of an individual or entity that is deemed, or is found by the Commission, to have committed a violation, the acts or omissions and provisions at issue and the amount of the penalty imposed, if any.

Marginal note:Receiver General

74 A penalty paid or recovered in relation to a violation is payable to the Receiver General.

Marginal note:Debt due to Her Majesty

• 75 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in any court of competent jurisdiction:

  • (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 60 has been committed;

  • (b) the amount payable under an undertaking entered into under section 65, 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 penalty that is imposed by the Commission, beginning on the day specified by the Commission 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 or prescription period

  (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 any court of competent jurisdiction 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

76 The Governor in Council may make regulations

• (a) providing for exceptions to paragraph 60(1)(a) or (b);

• (b) increasing the penalty amounts set out in subsection 61(1);

• (c) for the purpose of paragraph 61(2)(f), establishing other factors to be considered in determining the amount of the penalty;

• (d) respecting undertakings referred to in section 65;

• (e) respecting the service of documents required or authorized to be served under sections 60 to 75, 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 sections 60 to 75.