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Transportation Appeal Tribunal of Canada Act
S.C. 2001, c. 29
The provisions of this Act, other than sections 71 and 72, come into force on a day or days to be fixed by order of the Governor in Council.
*[Note: Sections 71 and 72 in force on assent December 18, 2001.]
*[Note: SI/2003-128 - June 30, 2003 as the day on which the Act, other than
sections 46 to 51, 55 to 59, 71 and 72, comes into force.]
*[Note: SI/2005-61 - June 30, 2005 as the day on which
sections 55 to 59 of the Act come into force.]
SHORT TITLE
1. This Act may be cited as the
Transportation Appeal Tribunal of Canada
Act.
TRANSPORTATION
APPEAL TRIBUNAL OF CANADA
Establishment
2. (1) There is hereby established a tribunal
to be known as the Transportation Appeal
Tribunal of Canada (``the Tribunal'').
Jurisdiction
generally
(2) The Tribunal has jurisdiction in respect
of reviews and appeals as expressly provided
for under the Aeronautics Act, the Canada
Shipping Act, the Marine Transportation
Security Act, the Railway Safety Act and any
other federal Act regarding transportation.
Jurisdiction in
respect of Canada Transportation Act
(3) The Tribunal also has jurisdiction in
respect of reviews and appeals in connection
with administrative monetary penalties
provided for under sections 177 to 181 of the
Canada Transportation Act.
Members
3. (1) The Governor in Council shall
appoint as members of the Tribunal persons
who, in the opinion of the Governor in
Council, collectively have expertise in the
transportation sectors in respect of which the
federal government has jurisdiction.
Full- or
part-time
members
(2) Members may be appointed as full-time
or part-time members.
Chairperson
and Vice-Chairperson
4. The Governor in Council shall designate
one member as Chairperson of the Tribunal
and one member as Vice-Chairperson. The
Chairperson and Vice-Chairperson must be
full-time members.
Duties of
Chairperson
5. (1) The Chairperson is the chief
executive officer of the Tribunal and has
supervision over, and direction of, the work of
the members and staff of the Tribunal,
including
(a) the apportionment of work among
members and the assignment of members to
hear matters brought before the Tribunal
and, when the Tribunal sits in panels, the
assignment of members to panels and to
preside over panels; and
(b) generally, the conduct of the work of the
Tribunal and the management of its internal
affairs.
Absence of
Chairperson
(2) In the event of the absence or incapacity
of the Chairperson or if the office of
Chairperson is vacant, the Vice-Chairperson
shall act as Chairperson during the
continuance of that absence or incapacity or
until a new Chairperson is designated.
Term of office
6. (1) A member shall be appointed to hold
office during good behaviour for a term not
exceeding seven years and may be removed
for cause by the Governor in Council.
Reappointment
(2) A member is eligible to be reappointed.
Disposition
after member
ceases to hold
office
(3) At the request of the Chairperson, a
former member, within eight weeks after
ceasing to be a member, may make or take part
in a determination or decision on a matter that
they heard as a member. For that purpose, the
former member is deemed to be a member.
Remuneration
7. (1) Members shall receive the
remuneration that is fixed by the Governor in
Council.
Expenses
(2) Each member is entitled to be paid
reasonable travel and living expenses incurred
while absent in the course of their duties from,
in the case of a full-time member, their
ordinary place of work and, in the case of a
part-time member, their ordinary place of
residence.
Status
(3) Members are deemed to be employed in
the federal public administration for the purposes
of the Government Employees Compensation
Act and any regulations made under section 9
of the Aeronautics Act.
Inconsistent
interests -
full-time
members
8. (1) Full-time members shall not accept or
hold any office, membership, employment or
interest, or engage in any business activity,
that is inconsistent with the proper
performance of their duties and functions.
Divesting of
interests
(2) If an interest that is prohibited under
subsection (1) vests, by whatever means, in a
full-time member, the member shall disclose
the interest to the Chairperson without delay
and, within three months after the interest
vests, either divest himself or herself of the
interest or resign as a member.
Duties of
full-time
members
(3) Full-time members shall devote the
whole of their time to the performance of their
duties and functions under this Act.
Inconsistent
interests -
part-time
members
(4) If a part-time member who is assigned
to hear or is hearing any matter before the
Tribunal, either alone or as a member of a
panel, holds any pecuniary or other interest
that could be inconsistent with the proper
performance of their duties and functions in
relation to the matter, the member shall
disclose the interest to the Chairperson
without delay and is ineligible to hear, or to
continue to hear, the matter.
Principal
office
9. The principal office of the Tribunal shall
be in the National Capital Region described in
the schedule to the National Capital Act.
Employees
10. (1) The employees that are necessary for
the proper conduct of the work of the Tribunal
shall be appointed in accordance with the
Public Service Employment Act.
Status
(2) Employees appointed under subsection
(1) are deemed to be employed in the public
service for the purposes of the Public Service
Superannuation Act.
Experts
(3) The Tribunal may engage experts or
persons having technical or specialized
knowledge to assist the Tribunal in any matter
in an advisory capacity and may, subject to the
approval of the Treasury Board, fix their
remuneration.
Sittings
11. The Tribunal shall sit at those times and
places in Canada that the Chairperson
considers necessary for the proper
performance of its functions.
Hearings on
review
12. A review shall be heard by a member,
sitting alone, who has expertise in the
transportation sector to which the review
relates. However, a review that concerns a
matter of a medical nature shall be heard by a
member with medical expertise, whether or
not that member has expertise in the
transportation sector to which the review
relates.
Hearings on
appeal
13. (1) Subject to subsection (2), an appeal
to the Tribunal shall be heard by an appeal
panel consisting of three members.
Size of panel
(2) The Chairperson may, if he or she
considers it appropriate, direct that an appeal
be heard by an appeal panel consisting of more
than three members or, with the consent of the
parties to the appeal, of one member.
Composition
of panel
(3) A member who conducts a review may
not sit on an appeal panel that is established to
hear an appeal from his or her determination.
Qualifications of
members
(4) With the exception of the Chairperson
and Vice-Chairperson, who may sit on any
appeal panel, an appeal shall be heard by an
appeal panel consisting of members who have
expertise in the transportation sector to which
the appeal relates.
Medical
matters
(5) Despite subsection (4), in an appeal that
concerns a matter of a medical nature, at least
one member of the appeal panel shall have
medical expertise, whether or not that member has expertise in the transportation
sector to which the appeal relates.
Decision of
panel
(6) A decision of a majority of the members
of an appeal panel is a decision of the panel.
Nature of
appeal
14. An appeal shall be on the merits based
on the record of the proceedings before the
member from whose determination the appeal
is taken, but the appeal panel shall allow oral
argument and, if it considers it necessary for
the purposes of the appeal, shall hear evidence
not previously available.
Nature of
hearings
15. (1) Subject to subsection (2), the
Tribunal is not bound by any legal or technical
rules of evidence in conducting any matter
that comes before it, and all such matters shall
be dealt with by it as informally and
expeditiously as the circumstances and
considerations of fairness and natural justice
permit.
Restriction
(2) The Tribunal shall not receive or accept
as evidence anything that would be
inadmissible in a court by reason of any
privilege under the law of evidence.
Appearance
(3) A party to a proceeding before the
Tribunal may appear in person or be
represented by another person, including legal
counsel.
Private
hearings
(4) Hearings shall be held in public.
However, the Tribunal may hold all or any part
of a hearing in private if it is of the opinion that
(a) a public hearing would not be in the
public interest;
(b) medical information about a person may
be disclosed and the desirability of ensuring
that, in the interests of that person, the
information is not publicly disclosed
outweighs the desirability of adhering to the
principle that hearings be open to the
public; or
(c) confidential business information may
be disclosed and the desirability of ensuring
that the information is not publicly
disclosed outweighs the desirability of
adhering to the principle that hearings be
open to the public.
Standard of
proof
(5) In any proceeding before the Tribunal,
a party that has the burden of proof discharges
it by proof on the balance of probabilities.
Powers of
Tribunal
16. The Tribunal, and each of its members,
has all the powers of a commissioner under
Part I of the Inquiries Act.
Reasons
17. A member who conducts a review shall
provide a determination, and an appeal panel
shall provide a decision, with reasons, in
writing to all parties to a proceeding.
Rules of
Tribunal
18. The Tribunal may, with the approval of
the Governor in Council, make rules that are
not inconsistent with this Act or any Act
referred to in section 2 to govern the
management of its affairs and the practice and
procedure in connection with matters brought
before it.
Costs
19. (1) The Tribunal may award any costs,
and may require the reimbursement of any
expenses incurred in connection with a
hearing, that it considers reasonable if
(a) it is seized of the matter for reasons that
are frivolous or vexatious;
(b) a party that files a request for a review
or an appeal and does not appear at the
hearing does not establish that there was
sufficient reason to justify their absence; or
(c) a party that is granted an adjournment of
the hearing requested the adjournment
without adequate notice to the Tribunal.
Recovery
(2) Costs awarded to the Minister of
Transport, and expenses of that Minister or the
Tribunal that are subject to reimbursement,
under subsection (1) are a debt due to Her
Majesty in right of Canada.
Certificate
(3) Costs or expenses under subsection (1)
that have not been paid may be certified by the
Tribunal.
Registration
of certificate
(4) On production to the Federal Court, a
certificate shall be registered. When it is
registered, a certificate has the same force and
effect as if it were a judgment obtained in the
Federal Court for a debt of the amount
specified in it and all reasonable costs and
charges attendant on its registration,
recoverable in that Court or in any other court
of competent jurisdiction.
Proceedings
to be recorded
20. Proceedings before the Tribunal shall be
recorded, and the record shall show all
evidence taken and all determinations,
decisions and findings made in respect of the
proceedings.
Decision on
appeal final
21. A decision of an appeal panel of the
Tribunal is final and binding on the parties to
the appeal.
Annual report
22. The Tribunal shall, not later than June
30 in each fiscal year, submit to Parliament,
through the member of the Queen's Privy
Council for Canada who is designated by the
Governor in Council as the Minister for the
purposes of this section, a report of its
activities during the preceding fiscal year, and
that Minister shall cause the report to be laid
before each House of Parliament on any of the
first 15 days on which that House is sitting
after the Minister receives it.
TRANSITIONAL PROVISIONS
23.
The definitions in this section apply in
sections 24 to 32.
"former Tribunal"
« ancien
Tribunal »
"former Tribunal'' means the Civil
Aviation Tribunal established by
subsection 29(1) of the Aeronautics Act as
that Act read immediately before the
coming into force of section 44.
"new Tribunal"
« nouveau
Tribunal »
"new Tribunal'' means the Transportation
Appeal Tribunal of Canada established
by subsection 2(1).
Powers, duties
and functions
24. Wherever, in any Act of Parliament,
in any instrument made under an Act of
Parliament or in any contract, lease, licence
or other document, a power, duty or
function is vested in or is exercisable by the
former Tribunal, the power, duty or
function is vested in or is exercisable by the
new Tribunal.
Appropriations
25. Any amount that is appropriated, for
the fiscal year in which this section comes
into force, by an appropriation Act based on
the Estimates for that year for defraying the
charges and expenses of the former
Tribunal and that, on the day on which
section 44 comes into force, is unexpended
is deemed, on that day, to be an amount
appropriated for defraying the charges and
expenses of the new Tribunal.
Members of
Tribunal
26. The Chairman, Vice-Chairman and
other members of the former Tribunal
immediately before the coming into force of
section 44 shall, on the coming into force of
that section, occupy the positions of
Chairperson, Vice-Chairperson and
members, respectively, with the new
Tribunal until the expiry of the period of
their appointment to the former Tribunal.
Employment
continued
27. (1) Nothing in this Act shall be
construed as affecting the status of an
employee who, immediately before the
coming into force of section 44, occupied a
position with the former Tribunal, except
that each of those persons shall, on the
coming into force of that section, occupy
their position with the new Tribunal.
Definition of "employee"
(2) For the purposes of this section,
``employee'' has the same meaning as in
subsection 2(1) of the Public Service
Employment Act.
References
28. Every reference to the former
Tribunal in any deed, contract, agreement
or other document executed by the former
Tribunal in its own name shall, unless the
context otherwise requires, be read as a
reference to the new Tribunal.
Rights and
obligations
29. All rights and property of the former
Tribunal and of Her Majesty in right of
Canada that are under the administration
and control of the former Tribunal and all
obligations of the former Tribunal are
transferred to the new Tribunal.
Commencement of legal
proceedings
30. Any action, suit or other legal
proceeding in respect of an obligation or
liability incurred by the former Tribunal
may be brought against the new Tribunal in
any court that would have had jurisdiction
if the action, suit or other legal proceeding
had been brought against the former
Tribunal.
Continuation
of legal
proceedings
31. Any action, suit or other legal
proceeding to which the former Tribunal is
a party that is pending in any court
immediately before the day on which
section 44 comes into force may be
continued by or against the new Tribunal in
the same manner and to the same extent as
it could have been continued by or against
the former Tribunal.
Continuation
of
proceedings
32. (1) Proceedings relating to any matter
before the former Tribunal on the coming
into force of section 44, including any
matter that is in the course of being heard
by the former Tribunal, shall be continued
by the new Tribunal.
Application of
provisions
(2) Unless the Governor in Council, by
order, directs that proceedings continued
under this section are to be dealt with in
accordance with the provisions of this Act,
the proceedings shall be dealt with and
determined in accordance with the
provisions of the Aeronautics Act as that Act
read immediately before the coming into
force of section 44.
Directions re
proceedings
(3) The Governor in Council may, by
order, direct that proceedings in respect of
any class of matter referred to in subsection
(1) in respect of which no decision or order
is made on the coming into force of section
44 shall be discontinued or continued by the
new Tribunal, as the case may be, on the
terms and conditions specified in the order
for the protection and preservation of the
rights and interests of the parties.
CONSEQUENTIAL AMENDMENTS
Aeronautics Act
33. The definition "Tribunal'' in
subsection 3(1) of the Aeronautics Act is
replaced by the following:
"Tribunal"
« Tribunal »
"Tribunal" means the Transportation Appeal
Tribunal of Canada established by
subsection 2(1) of the Transportation
Appeal Tribunal of Canada Act.
34.
Sections 6.6 to 6.8 of the Act are
replaced by the following:
Definition of "Canadian
aviation document"
6.6 In sections 6.7 to 7.21, "Canadian
aviation document'' includes any privilege
accorded by a Canadian aviation document.
Non-application of certain
provisions
6.7 Sections 6.71 to 7.21 do not apply to a
member of the Canadian Armed Forces acting
in that capacity or to any other person in
relation to a Canadian aviation document
issued in respect of a military aircraft, military
aerodrome or military facility.
Minister may
refuse to issue
or amend
Canadian
aviation
document
6.71 (1) The Minister may refuse to issue or
amend a Canadian aviation document on the
grounds that
(a) the applicant is incompetent;
(b) the applicant or any aircraft, aerodrome,
airport or other facility in respect of which
the application is made does not meet the
qualifications or fulfil the conditions
necessary for the issuance or amendment of
the document; or
(c) the Minister is of the opinion that the
public interest and, in particular, the
aviation record of the applicant or of any
principal of the applicant, as defined in
regulations made under paragraph (3)(a),
warrant the refusal.
Notice
(2) The Minister shall, by personal service
or by registered or certified mail sent to their
latest known address, notify the applicant or
the owner or operator of the aircraft,
aerodrome, airport or other facility, as the case
may be, of a decision made under subsection
(1). The notice shall be in a form prescribed by
regulation of the Governor in Council and, in
addition to any other information that may be
prescribed, shall indicate, as the case requires,
(a) the nature of the incompetence of the
applicant;
(b) the qualifications or conditions referred
to in paragraph (1)(b) that are not met or
fulfilled, as the case may be;
(c) the reasons for the Minister's opinion
referred to in paragraph (1)(c); and
(d) except in the case of a document or class
of documents prescribed under paragraph
(3)(b), the address at which, and the date,
being thirty days after the notice is served or
sent, on or before which the applicant,
owner or operator may file a request for a
review of the Minister's decision.
Regulations
(3) The Governor in Council may make
regulations
(a) defining the word ``principal''; and
(b) prescribing Canadian aviation
documents, or classes of such documents, in
respect of which a review of the Minister's
decision to refuse to issue or amend a
document may not be requested.
Request for
review
6.72 (1) Subject to any regulations made
under paragraph 6.71(3)(b), an applicant,
owner or operator who is served with or sent
a notice under subsection 6.71(2) and who
wishes to have the Minister's decision
reviewed shall, on or before the date specified
in the notice or within any further time that the
Tribunal on application may allow, file a
written request for a review of the decision
with the Tribunal at the address set out in the
notice.
Time and
place for
review
(2) On receipt of a request filed under
subsection (1), the Tribunal shall appoint a
time and place for the review and shall notify
the Minister and the person who filed the
request of the time and place in writing.
Review
procedure
(3) The member of the Tribunal assigned to
conduct the review shall provide the Minister
and the person who filed the request with an
opportunity consistent with procedural
fairness and natural justice to present
evidence and make representations.
Determination
(4) The member of the Tribunal who
conducts the review may determine the matter
by confirming the Minister's decision or by
referring the matter back to the Minister for
reconsideration.
Suspensions,
etc., generally
6.8 In addition to any ground referred to in
any of sections 6.71, 6.9 to 7.1 and 7.21, the
Minister may suspend, cancel or refuse to
issue, amend or renew a Canadian aviation
document in the circumstances and on the
grounds prescribed by regulation of the
Governor in Council.
35. Subsection 6.9(8) of the Act is
replaced by the following:
Holder, etc.,
not compelled
to testify
(7.1) In a review under this section, a
holder, owner or operator referred to in
subsection (1) is not required, and shall not be
compelled, to give any evidence or testimony
in the matter.
Determination of
Tribunal
member
(8) On a review under this section of a
decision of the Minister to suspend or cancel
a Canadian aviation document, the member of
the Tribunal who conducts the review may
determine the matter by confirming the
Minister's decision or substituting his or her
own determination.
36.
(1) Section 7 of the Act is amended by
adding the following after subsection (2):
Effective date
of Minister's
decision
(2.1) The Minister's decision takes effect
on the date of receipt of the notice under
subsection (1) by the person on whom it is
served or to whom it is sent, unless the notice
indicates that the decision is to take effect on
a later date.
(2)
Subsections 7(7) and (8) of the Act are
replaced by the following:
Determination of
Tribunal
member
(7) On a review under this section of a
decision of the Minister to suspend a Canadian
aviation document, the member of the
Tribunal who conducts the review may
determine the matter by confirming the
Minister's decision or substituting his or her
own determination.
Request for
reconsideration of
immediate
threat
(8) Where
(a) no appeal from a determination under
subsection (7) confirming the Minister's
decision is taken under section 7.2 within
the time limited for doing so under that
section, or
(b) an appeal panel has, on an appeal under
section 7.2, confirmed the Minister's
decision under this section,
the holder of the document or the owner or
operator of any aircraft, airport or other
facility in respect of which the document was
issued may, in writing, request the Minister to
reconsider whether the immediate threat to
aviation safety referred to in subsection (1)
that occasioned the suspension continues to
exist or is likely to occur as described in that
subsection.
37. (1) Subsection 7.1(1) of the Act is
replaced by the following:
Suspension,
etc., on other
grounds
7.1 (1) If the Minister decides to suspend,
cancel or refuse to renew a Canadian aviation
document on the grounds that
(a) the holder of the document is
incompetent,
(b) the holder or any aircraft, airport or
other facility in respect of which the
document was issued ceases to meet the
qualifications necessary for the issuance of
the document or to fulfil the conditions
subject to which the document was issued,
or
(c) the Minister is of the opinion that the
public interest and, in particular, the
aviation record of the holder of the
document or of any principal of the holder,
as defined in regulations made under
paragraph 6.71(3)(a), warrant it,
the Minister shall, by personal service or by
registered or certified mail sent to the holder
or the owner or operator of the aircraft, airport
or facility, as the case may be, at their latest
known address, notify that person of the
Minister's decision.
(2)
Subparagraph 7.1(2)(a)(i) of the Act is
repealed.
(3)
Section 7.1 of the Act is amended by
adding the following after subsection (2):
Effective date
of Minister's
decision
(2.1) The Minister's decision to suspend or
cancel a Canadian aviation document takes
effect on the date of receipt of the notice under
subsection (1) by the person on whom it is
served or to whom it is sent, unless the notice
indicates that the decision is to take effect on
a later date.
(4)
Subsections 7.1(7) to (9) of the Act are
replaced by the following:
Determination of
Tribunal
member
(7) On a review under this section of a
decision of the Minister to suspend, cancel or
refuse to renew a Canadian aviation
document, the member of the Tribunal who
conducts the review may determine the matter
by confirming the Minister's decision or by
referring the matter back to the Minister for
reconsideration.
Effect of
decision
pending
reconsideration
(8) If a decision to suspend or cancel a
Canadian aviation document is referred back
to the Minister for reconsideration under
subsection (7), the decision of the Minister
remains in effect until the reconsideration is
concluded. However, the member, after
considering any representations made by the
parties, may grant a stay of the decision until
the reconsideration is concluded, if he or she
is satisfied that granting a stay would not
constitute a threat to aviation safety.
38.
Section 7.2 of the Act is replaced by
the following:
Right of
appeal
7.2 (1) Within thirty days after the
determination,
(a) a person affected by the determination
may appeal a determination made under
subsection 6.72(4) or 7.1(7) to the Tribunal;
or
(b) a person affected by the determination
or the Minister may appeal a determination
made under subsection 6.9(8) or 7(7) to the
Tribunal.
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.
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 6.72(4) or 7.1(7), dismiss
the appeal or refer the matter back to the
Minister for reconsideration;
or
(b) in the case of a determination made
under subsection 6.9(8) or 7(7), dismiss the
appeal, or allow the appeal and substitute its
own decision.
Effect of
decision
pending
reconsideration
(4) If a decision to suspend or cancel a
Canadian aviation document is referred back
to the Minister for reconsideration under
paragraph (3)(a), the decision of the Minister
remains in effect until the reconsideration is
concluded. However, the appeal panel, after
considering any representations made by the
parties, may grant a stay of the decision until
the reconsideration is concluded, if it is
satisfied that granting a stay would not
constitute a threat to aviation safety.
Default in
payment
7.21 (1) The Minister may suspend, or
refuse to issue, amend or renew, a Canadian
aviation document if a certificate under
section 7.92, paragraph 8(b) or subsection
8.1(4) has been issued to the Minister in
respect of the applicant for, or the holder of,
the document or in respect of the owner or
operator of an aircraft, aerodrome, airport or
other facility to which the document relates.
Notice
(2) The Minister shall, by personal service
or by registered or certified mail sent to the
applicant, holder, owner or operator, as the
case may be, at their latest known address,
notify that person of a decision made under
subsection (1) and, in the case of a suspension,
of the effective date of the suspension, which
shall not be earlier than thirty days after the
notice is served or sent.
39.
Sections 7.7 to 7.9 of the Act are
replaced by the following:
Notice of
assessment of
monetary
penalty
7.7 (1) If the Minister believes on
reasonable grounds that a person has
contravened a designated provision, the
Minister may decide to assess a monetary
penalty in respect of the alleged
contravention, in which case the Minister
shall, by personal service or by registered or
certified mail sent to the person at their latest
known address, notify the person of his or her
decision.
Contents of
notice
(2) A notice under subsection (1) shall be in
a form prescribed by regulation of the
Governor in Council and shall, in addition to
any other information that may be prescribed,
indicate
(a) the designated provision that the
Minister believes has been contravened;
(b) subject to any regulations made under
paragraph 7.6(1)(b), the amount that is
determined by the Minister, in accordance
with any guidelines that the Minister may
make for the purpose, to be the amount that
must be paid to the Minister as the penalty
in the event that the person does not wish to
appear before a member of the Tribunal
assigned to conduct a review to make
representations in respect of the alleged
contravention; and
(c) the address at which, and the date, being
thirty days after the notice is served or sent,
on or before which, the penalty must be paid
or a request for a review must be filed.
Option
7.8 A person who has been served with or
sent a notice under subsection 7.7(1) must
either pay the amount of the penalty specified
in the notice or file with the Tribunal a written
request for a review of the facts of the alleged
contravention or of the amount of the penalty.
Payment of
specified
amount
precludes
further
proceedings
7.9 If a person who is served with or sent a
notice under subsection 7.7(1) pays the
amount specified in the notice in accordance
with the requirements set out in the notice, the
Minister shall accept the amount as and in
complete satisfaction of the amount of the
penalty for the contravention by that person of
the designated provision and no further
proceedings under this Part shall be taken
against the person in respect of that
contravention.
Request for
review of determination
7.91 (1) A person who is served with or sent
a notice under subsection 7.7(1) and who
wishes to have the facts of the alleged
contravention or the amount of the penalty
reviewed shall, on or before the date specified
in the notice or within any further time that the
Tribunal on application may allow, file a
written request for a review with the Tribunal
at the address set out in the notice.
Time and
place for
review
(2) On receipt of a request filed under
subsection (1), the Tribunal shall appoint a
time and place for the review and shall notify
the Minister and the person who filed the
request of the time and place in writing.
Review
procedure
(3) The member of the Tribunal assigned to
conduct the review shall provide the Minister
and the person who filed the request with an
opportunity consistent with procedural
fairness and natural justice to present
evidence and make representations.
Burden of
proof
(4) The burden of establishing that a person
has contravened a designated provision is on
the Minister.
Person not
compelled to
testify
(5) A person who is alleged to have
contravened a designated provision is not
required, and shall not be compelled, to give
any evidence or testimony in the matter.
Certificate
7.92 If a person fails to pay the amount of
the penalty specified in a notice under
subsection 7.7(1) within the time specified in
the notice and does not file a request for a
review under subsection 7.91(1), the person is
deemed to have committed the contravention
alleged in the notice, and the Minister may
obtain from the Tribunal a certificate in a form
prescribed by the Governor in Council that
indicates the amount of the penalty specified
in the notice.
40.
The portion of section 8 of the English
version of the Act before paragraph (a) is
replaced by the following:
Determination by
Tribunal
member
8. If, at the conclusion of a review under
section 7.91, the member of the Tribunal who
conducts the review determines that
41.
Section 8.1 of the Act is replaced by
the following:
Right of
appeal
8.1 (1) A person affected by the
determination or the Minister may, within
thirty days after the determination, appeal a
determination made under section 8 to the
Tribunal.
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.
Disposition of
appeal
(3) The appeal panel of the Tribunal
assigned to hear the appeal may dispose of the
appeal by dismissing it or allowing it and, in
allowing the appeal, the panel may substitute
its decision for the determination appealed
against.
Certificate
(4) Where the appeal panel finds on an
appeal that a person has contravened the
designated provision, the panel shall without
delay inform the person of the finding and,
subject to any regulations made under
paragraph 7.6(1)(b), of the amount
determined by the panel to be payable by the
person in respect of the contravention and,
where the amount is not paid to the Tribunal
by or on behalf of the person within the time
allowed by the Tribunal, the Tribunal shall
issue to the Minister a certificate in a form
prescribed by regulation of the Governor in
Council, setting out the amount required to be
paid by the person.
42.
Subsection 8.2(1) of the Act is
replaced by the following:
Registration
of certificate
8.2 (1) If the time limit for the payment of
an amount determined by the Minister in a
notice under subsection 7.7(1) has expired, the
time limit for the request for a review under
subsection 7.91(1) has expired, the time limit
for an appeal under subsection 8.1(1) has
expired, or an appeal taken under section 8.1
has been disposed of, on production in any
superior court, a certificate issued under
section 7.92, paragraph 8(b) or subsection
8.1(4) shall be registered in the court. When it
is registered, a certificate has the same force
and effect, and proceedings may be taken in
connection with it, as if it were a judgment in
that court obtained by Her Majesty in right of
Canada against the person named in the
certificate for a debt of the amount set out in
the certificate.
43.
Subsection 8.3(3) of the Act is
replaced by the following:
Application of
certain
provisions
(3) Subsections 7.1(3) to (8) and section 7.2
apply, with any modifications that the
circumstances require, in respect of a decision
of the Minister referred to in subsection (2).
44.
Part IV of the Act is repealed.
Replacement
of "full
opportunity''
with "opportunity"
45.
(1) The Act is amended by replacing
the words ``full opportunity'' with the word "opportunity'' in the following provisions:
(a) subsection 6.9(7);
(b) subsection 7(6); and
(c) subsection 7.1(6).
Replacement
of "audition''
with "audience"
(2)
The French version of the Act is
amended by replacing the word "audition''
with the word ``audience'' in the following
provisions:
(a) subsections 6.9(6) and (7);
(b) subsections 7(5) and (6); and
(c) subsections 7.1(5) and (6).
Canada Shipping Act
46.
Section 2 of the Canada Shipping Act
is amended by adding the following in
alphabetical order:
"Tribunal"
« Tribunal »
"Tribunal" means the Transportation Appeal
Tribunal of Canada established by
subsection 2(1) of the Transportation
Appeal Tribunal of Canada Act;
47.
Section 120 of the Act is replaced by
the following:
Medical
incapacity of
certificate
holder
120. (1) If the Minister believes on
reasonable grounds that the holder of a
certificate granted under this Part is
incapacitated in respect of the performance of
his or her duties as a certificated master or
seaman by reason of not meeting the medical
fitness standards prescribed under paragraph
110(1)(c), the Minister may suspend the
certificate until the Minister is satisfied that
the certificate holder is no longer
incapacitated.
Provisions
applicable to
suspension
(2) Sections 504.1 to 505.2 apply in respect
of a suspension under subsection (1) with any
modifications that the circumstances require.
However, subsections 505.1(4) and 505.2(3)
apply as if the suspension were a suspension of
a certificate under paragraph 504(a), (c) or (e).
48.
Section 125 of the Act is amended by
adding the following after subsection (4):
Provisions
applicable to
suspensions
and
cancellations
(5) Sections 504.1 to 505.2 apply in respect
of a suspension or cancellation under
subsection (4) with any modifications that the
circumstances require. However, subsections
505.1(4) and 505.2(3) apply as if the
suspension or cancellation were a suspension
or cancellation of a certificate under
paragraph 504(a), (c) or (e).
49.
Section 128 of the Act is amended by
adding the following after subsection (2):
Provisions
applicable to
suspensions
and
cancellations
(2.1) Sections 504.1 to 505.2 apply in
respect of a suspension or cancellation under
subsection (2) with any modifications that the
circumstances require.
50.
Section 133 of the Act is amended by
adding the following after subsection (3):
Provisions
applicable to
suspensions
(4) Sections 504.1 to 505.2 apply in respect
of a suspension under subsection (3) with any
modifications that the circumstances require.
However, subsections 505.1(4) and 505.2(3)
apply as if the suspension were a suspension of
a certificate under paragraph 504(b) or (d).
51.
The heading before section 504 and
sections 504 and 505 of the Act are replaced
by the following:
Suspension or
cancellation
of certificate
504. With respect to a certificate granted by
the Minister, or a certificate granted in any
other country in so far only as concerns its
validity in Canada, the Minister may suspend
or cancel the certificate of competency or
service of a master, mate or engineer if the
Minister is satisfied that
(a) the master, mate or engineer is
incompetent or is guilty of any act of
misconduct, drunkenness or tyranny;
(b) the master, mate or engineer on board a
vessel that has contravened any of sections
5.3 to 5.5 of the Coastal Fisheries
Protection Act knew, when the
contravention occurred, that the vessel was
committing the contravention;
(c) the loss or abandonment of, or serious
damage to, any ship or any loss of life was
caused by the wrongful act or default of the
master, mate or engineer;
(d) the master, mate or engineer is guilty of
a criminal offence; or
(e) the master or mate, in the case of
collision between his or her vessel and
another vessel, has failed without
reasonable cause to comply with the
requirements of section 568 with regard to
rendering assistance or giving information.
Notice before
suspension or
cancellation
504.1 Before suspending or cancelling a
certificate of competency or service, the
Minister shall, by personal service or by
registered or certified mail sent to the holder
of the certificate at his or her latest known
address, give the holder 30 days notice of the
proposed suspension or cancellation. The
notice shall be in a form prescribed by
regulation of the Governor in Council and
shall indicate
(a) the grounds for the proposed suspension
or cancellation; and
(b) the address at which, and the date, being
30 days after the notice is given, on or
before which, the holder may file a request
for a review of the Minister's decision.
Exception
504.2 (1) The Minister may suspend or
cancel a certificate of competency or service
without giving notice under section 504.1 if,
on ex parte application by the Minister, the
Tribunal determines that compliance with that
section is not in the interest of public safety.
Decision
within 24
hours
(2) An application by the Minister under
subsection (1) shall be heard by a member of
the Tribunal, sitting alone, whose
determination shall be made within 24 hours
after the application is filed with the Tribunal.
Appeal
(3) The Minister may appeal the
determination to the Tribunal within 24 hours
after the determination.
Decision
within 48
hours
(4) The appeal panel of the Tribunal
assigned to hear the appeal shall make a
decision within 48 hours after the appeal is
filed with the Tribunal.
Notice after
suspension or
cancellation
504.3 Unless a notice is given under section
504.1, immediately after suspending or
cancelling a certificate, the Minister shall, by
personal service or by registered or certified
mail sent to the holder of the certificate at his
or her latest known address, give the holder a
notice in a form prescribed by regulation of
the Governor in Council
(a) confirming the suspension or
cancellation and providing all relevant
information concerning the grounds on
which the Minister suspended or cancelled
the certificate; and
(b) indicating the address at which, and the
date, being 30 days after the notice is given,
on or before which, the holder may file a
request for a review of the Minister's
decision.
Request for
review
505. (1) The holder of a certificate may, on
or before the date specified in a notice under
section 504.1 or 504.3 or within any further
time that the Tribunal on application allows,
file a written request for a review of the
decision referred to in the notice.
Effect of
request
(2) The filing of a request for a review of a
decision referred to in a notice under section
504.1 operates as a stay of the proposed
suspension or cancellation until the matter is
finally disposed of in accordance with section
505.1 or 505.2.
Time and
place for
review
505.1 (1) On receipt of a request filed under
subsection 505(1), the Tribunal shall appoint
a time and place for the review and shall notify
the Minister and the holder of the certificate of
the time and place in writing.
Review
procedure
(2) The member of the Tribunal assigned to
conduct the review shall provide the Minister
and the holder of the certificate with an
opportunity consistent with procedural
fairness and natural justice to present
evidence and make representations.
Person not
compelled to
testify
(3) In a review of a decision made under
paragraph 504(c) or (e), the holder of the
certificate is not required, and must not be
compelled, to give any evidence or testimony
in the matter.
Determination
(4) The member may
(a) in the case of a suspension or
cancellation of a certificate under
paragraph 504(a), (c) or (e), confirm the
Minister's decision or refer the matter back
to the Minister for reconsideration; or
(b) in the case of a suspension or
cancellation of a certificate under
paragraph 504(b) or (d), confirm the
Minister's decision or substitute his or her
own determination.
Right of appeal
505.2 (1) The holder of a certificate may
appeal a determination made under paragraph
505.1(4)(a), and the holder of a certificate or
the Minister may appeal a determination made
under paragraph 505.1(4)(b), to the Tribunal
within 30 days after the determination.
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.
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 paragraph 505.1(4)(a), dismiss the
appeal or refer the matter back to the
Minister for reconsideration; or
(b) in the case of a determination made
under paragraph 505.1(4)(b), dismiss the
appeal, or allow the appeal and substitute its
own decision.
Endorsements
505.3 A reference to a certificate in sections
504 to 505.2 includes a reference to an
endorsement of that certificate.
Canada Transportation Act
52.
(1) The portion of subsection 180(2) of
the Canada Transportation Act before
paragraph (a) is replaced by the following:
Application of
Aeronautics
Act
(2) Sections 7.8 to 8.2 of the Aeronautics
Act apply to the contravention of a provision,
requirement or condition designated under
section 177, with any modifications that are
necessary, and a reference in any of those
provisions or in any document issued under
any of those provisions to
(2)
Paragraph 180(2)(c) of the Act is
replaced by the following:
(c) "Minister" shall be read as a reference
to the Agency or, in any provision other than
section 7.9 of the Aeronautics Act, to a
person designated by the Agency;
Financial Administration Act
53.
Schedule I.1 to the Financial
Administration Act is amended by striking
out, in column I, the reference to
Civil Aviation Tribunal
and the corresponding reference in column
II to the "Minister of Transport".
54.
Schedule I.1 to the Act is amended by
adding, in alphabetical order in column I, a
reference to
Transportation Appeal Tribunal of Canada
and a corresponding reference in column II
to the ``Minister of Transport''.
Marine Transportation Security Act
55.
(1) The definition "screening
officer'' in subsection 2(1) of the Marine Transportation Security Act is
replaced by the following:
"screening officer"'
« agent de contrôle »
"screening officer" means a person designated by the
Minister under section 19.1 as a screening officer for the purposes of this Act;
(2) Subsection 2(1) of the Act is
amended by adding the following in alphabetical order:
"Tribunal"
« Tribunal »
"Tribunal"' means the Transportation Appeal Tribunal
of Canada established by subsection 2(1) of the Transportation Appeal
Tribunal of Canada Act;
56. Sections 5 and 6 of the Act are
replaced by the following:
Regulations respecting security
5. (1) The Governor in Council may make regulations
respecting the security of marine transportation, including regulations
(a) for preventing unlawful interference with marine
transportation and ensuring that appropriate action is taken where that
interference occurs or could occur;
(b) requiring or authorizing screening for the purpose
of protecting persons, goods, vessels and marine facilities;
(c) respecting the establishment of restricted areas;
(d) respecting the keeping and preservation of records
and documents relating to the security of marine operations, including copies
of the regulations, security measures and security rules;
(e) for requiring the records and documents to be filed
with the Minister or provided on request; and
(f) respecting the protection, preservation and return
of any evidence that has been seized under this Act without a warrant or any
vessel that has been detained under this Act.
Offences relating to the regulations
(2) Every person who contravenes a regulation made under
subsection (1) is guilty of an offence punishable on summary conviction and
liable
(a) in the case of an individual, to a fine not
exceeding $5,000 or to imprisonment for a term not exceeding six months or to
both; or
(b) in the case of a corporation, to a fine not
exceeding $100,000.
Notices and service of documents
6. The Governor in Council may make regulations
respecting
(a) the form and manner of giving notice under this
Act; and
(b) the service of documents required or authorized to
be served under this Act, including the manner of serving them, the proof of
their service and the circumstances under which they are deemed to have been
served.
57.
Section 19 of the Act is replaced
by the following:
Definition of "designation"
19. For the purposes of sections 19.1 to 19.8,
``designation'' includes any privilege accorded by a designation.
Designation of screening officers
19.1 The Minister may designate persons or classes of
persons to act as screening officers for the purposes of this Act or any of its
provisions.
Refusal to designate, etc.
19.2 (1) The Minister may refuse to designate a person as
a screening officer under section 19.1, or may suspend, cancel or refuse to
renew the designation of a person as a screening officer, if the Minister is of
the opinion that the person is incompetent, does not meet the qualifications or
fulfil the conditions required for the designation or ceases to meet the
qualifications or fulfil the conditions of the designation.
Suspension or cancellation of designation for contraventions
(2) The Minister may suspend or cancel the designation of a
person as a screening officer if the Minister is of the opinion that the person
has contravened this Act or any regulation, security measure or security rule,
or any condition referred to in subsection 10(6).
Suspension for immediate threat
(3) The Minister may suspend the designation of a person as a
screening officer if the Minister is of the opinion that the exercise by the
person of the functions of a screening officer constitutes, or is likely to
constitute, an immediate threat to marine transportation security.
Notice
19.3 (1) If the Minister decides to refuse to designate a
person as a screening officer or decides to suspend, cancel or refuse to renew a
person's designation as a screening officer, the Minister shall notify the
person of that decision.
Contents of notice
(2) A notice under subsection (1) shall include
(a) the grounds for the Minister's decision; and
(b) the address at which, and the date, being thirty
days after the notice is given, on or before which, the person may file a
request for a review of the decision.
Effective date of suspension or cancellation
(3) In the case of a suspension or cancellation, the effective
date of the decision shall not be earlier than
(a) in the case of a decision made under subsection
19.2(1) or (3), the day that the notice was received by the person; and
(b) in the case of a decision made under subsection
19.2(2), the thirtieth day after the notice is given.
Request for review
19.4 (1) A person affected by a decision of the Minister
under section 19.2 may, on or before the date specified in the notice under
subsection 19.3(1) or within any further time that the Tribunal on application
allows, file a written request for a review of the decision.
Effect of request
(2) A request under subsection (1) for a review of a decision of
the Minister does not operate as a stay of the decision.
Exception
(3) On application in writing by the person affected by a
decision made under subsection 19.2(2), after giving any notice to the Minister
that is, in the member's opinion, necessary and after considering any
representations made by the parties, a member of the Tribunal assigned for the
purpose may grant a stay of the decision until the review is completed, unless
he or she is of the opinion that granting a stay would constitute a threat to
marine transportation security.
Time and place for review
19.5 (1) On receipt of a request filed under subsection
19.4(1), the Tribunal shall appoint a time and place for the review and shall
notify the Minister and the person who filed the request of the time and place
in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review
shall provide the Minister and the person who filed the request with an
opportunity consistent with procedural fairness and natural justice to present
evidence and make representations.
Person not compelled to testify
(3) In a review of a decision made under subsection 19.2(2), the
person who filed the request for the review is not required, and shall not be
compelled, to give any evidence or testimony in the matter.
Determination
(4) The member may
(a) in the case of a decision made under subsection
19.2(1) or (3), confirm the decision or refer the matter back to the Minister
for reconsideration; or
(b) in the case of a decision made under subsection
19.2(2), confirm the decision or substitute his or her own determination.
Right of appeal
19.6 (1) Within thirty days after the determination,
(a) a person affected by the determination may appeal a
determination made under paragraph 19.5(4)(a) to the Tribunal; or
(b) a person affected by the determination or the
Minister may appeal a determination made under paragraph 19.5(4)(b) to
the Tribunal.
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.
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 paragraph
19.5(4)(a), dismiss the appeal or refer the matter back to the Minister
for reconsideration; or
(b) in the case of a determination made under paragraph
19.5(4)(b), dismiss the appeal, or allow the appeal and substitute its
own decision.
Decision to remain in effect pending reconsideration
19.7 If a matter is referred back to the Minister for
reconsideration under paragraph 19.5(4)(a) or 19.6(3)(a), the
decision of the Minister under subsection 19.2(1) or (3) to suspend or cancel a
designation remains in effect until the reconsideration is concluded. However,
the member who made the determination or the appeal panel, after considering any
representations made by the parties, may grant a stay of a decision under
subsection 19.2(1) to suspend or cancel a designation until the reconsideration
is concluded, if the member or panel is satisfied that granting a stay would not
constitute a threat to marine transportation security.
Reconsideration
19.8 (1) In the case of a decision made under subsection
19.2(3), if the appeal panel has, on an appeal under section 19.6, dismissed the
appeal or if the Minister has, after reconsidering the matter pursuant to
paragraph 19.5(4)(a) or 19.6(3)(a), confirmed the suspension, the
person affected by the decision may, in writing, request the Minister to
reconsider whether the exercise by the person of the functions of a screening
officer continues to constitute, or is likely to continue to constitute, an
immediate threat to marine transportation security.
Procedure applicable
(2) On the receipt of a request by a person under subsection
(1), the Minister shall without delay conduct the reconsideration and inform the
person of his or her decision regarding the request. Sections 19.3 to 19.7 apply
in respect of that decision with any modifications that are necessary.
58.
Subsection 28(2) of the French
version of the Act is replaced by the following:
Exploitant du bâtiment
(2) L'exploitant d'un bâtiment peut être déclaré coupable
d'une infraction à la présente loi, en rapport avec ce bâtiment, commise par
une autre personne, que celle-ci ait été ou non identifiée, poursuivie ou déclarée
coupable, à moins que, lors de l'infraction, le bâtiment n'ait été en la
possession d'une autre personne sans son consentement.
59. Section 32 of the Act and the
headings before it are replaced by the following:
ADMINISTRATIVE PENALTIES
Interpretation
Definition of "violation"
32. In sections 33 to 51, ``violation'' means a
contravention of a provision that is designated as a violation by the
regulations.
Assurances of Compliance and Notices of Violation
If reasonable grounds to believe a violation
33. (1) If the Minister has reasonable grounds to believe
that a person has committed a violation, the Minister may
(a) enter into an assurance of compliance with the
person that
(i) identifies the violation and provides that the person
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, that the person 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, a
notice of violation that names the person, identifies the violation and sets
out
(i) the penalty, fixed by or within the range fixed by the
regulations, that the person is liable to pay for the violation,
(ii) the period, being thirty days after 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 requested.
Extension of period
(2) The Minister may extend the period specified under
subparagraph (1)(a)(i) if the Minister is satisfied that the person is
unable to comply with the assurance of compliance for reasons beyond the
person's control.
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.
Deemed violation
34. (1) A person who enters into an assurance of
compliance under paragraph 33(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.
Request for review
(2) A person who enters into an assurance of compliance may,
within forty-eight hours after the assurance is signed, unless a notice of
default is served within that period under subsection 36(1), file a request with
the 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 subsection
39(1) of the facts of the violation and of the amount of the penalty is deemed
to have been requested.
When assurance of compliance complied with
35. If the Minister is satisfied that an assurance of
compliance under paragraph 33(1)(a) has been complied with, the Minister
shall cause a notice to that effect to be served on the person and, on the
service of the notice,
(a) no further proceedings may be taken against the
person with respect to the violation in respect of which the assurance was
entered into; and
(b) any security deposited under subparagraph 33(1)(a)(ii)
must be returned to the person.
When assurance of compliance not complied with
36. (1) If the Minister is of the opinion that a person
who 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 to the effect
that, unless a member determines under section 37, or an appeal panel decides
under section 40, that the assurance has been complied with,
(a) the person is liable to pay double the amount of
the penalty set out in the assurance; or
(b) the security deposited under subparagraph 33(1)(a)(ii)
is forfeited to Her Majesty in right of Canada.
Contents of notice
(2) A notice under subsection (1) shall include the address at
which, and the date, being thirty days after the notice is served, on or before
which, a request for a review may be filed.
No set-off
(3) On the service of a notice of default, the person served has
no right of set-off against any amount spent by the person under the assurance
of compliance.
Request for review
37. (1) A person who is served with a notice under
subsection 36(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.
Time and place for review
(2) On receipt of a request filed under subsection (1), the
Tribunal shall appoint a time and place for the review and shall notify the
Minister and the person who filed the request of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review
shall provide the Minister and the person who filed the request with an
opportunity consistent with procedural fairness and natural justice to present
evidence and make representations.
Burden of proof
(4) The burden is on the Minister to establish that the person
did not comply with the assurance of compliance referred to in the notice. The
person is not required, and shall not be compelled, to give any evidence or
testimony in the matter.
Certain defenses not available
(5) A person does not have a defence by reason that the person
exercised all due diligence to comply with the assurance of compliance.
Determination
(6) The member may confirm the Minister's decision or determine
that the person has complied with the assurance of compliance.
Return of security
38. Any security deposited under subparagraph 33(1)(a)(ii)
shall be returned to the person if
(a) the person pays double the amount of the penalty
set out in the assurance of compliance in accordance with a notice under
subsection 36(1); or
(b) a member determines under subsection 37(6), or an
appeal panel decides under subsection 40(3), that the assurance has been
complied with.
Notice of violation
39. (1) A person served with a notice of violation under
paragraph 33(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.
When review not requested
(2) If a review of the facts of the violation is not requested,
the person is deemed to have committed the violation in respect of which the
notice was served.
Time and place for review
(3) On receipt of a request filed under paragraph (1)(b),
the Tribunal shall appoint a time and place for the review and shall notify the
Minister and the person who filed the request of the time and place in writing.
Review procedure
(4) The member of the Tribunal assigned to conduct the review
shall provide the Minister and the person who filed the request with an
opportunity consistent with procedural fairness and natural justice to present
evidence and make representations.
Burden of proof
(5) The burden is on the Minister to establish that the person
committed the violation referred to in the notice. The person is not required,
and shall not be compelled, to give any evidence or testimony in the matter.
Determination
(6) The member may confirm the Minister's decision or, subject
to any regulations made under paragraph 51(c), substitute his or her own
determination.
Right of appeal
40. (1) The Minister or the person who requested the
review of the decision may appeal a determination made under subsection 37(6) or
39(6) to the Tribunal within thirty days after the determination.
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.
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 37(6), dismiss the appeal or allow the appeal and substitute its
own decision; or
(b) in the case of a determination made under
subsection 39(6), dismiss the appeal, or allow the appeal and, subject to
regulations made under paragraph 51(c), substitute its own decision.
Choice of Proceedings
How contravention may be proceeded with
41. 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
Debts due to Her Majesty
42. 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 a penalty is
requested under subsection 39(1), the amount of the penalty, from the time the
notice of violation that sets out the penalty is served;
(b) the amount of a penalty set out in a notice of
default referred to in subsection 36(1), from the time the notice under that
subsection is served;
(c) the amount of a penalty determined by a member
under section 39, or decided by an appeal panel under section 40, 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).
Certificate
43. (1) All or part of a debt referred to in section 42
in respect of which there is a default of payment may be certified by the
Minister or the Tribunal, as the case may be.
Registration of certificate
(2) On production to the Federal Court, a certificate shall be
registered. When it is registered, a certificate has the same force and effect,
and proceedings may be taken in connection with 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 on its registration.
Rules of Law about Violations
Violations are not offences
44. For greater certainty, a violation is not an offence
and, accordingly, section 126 of the Criminal Code does not apply.
Defense
45. For greater certainty, no person is liable for the
commission of a violation if the person exercised all due diligence to prevent
the commission.
Violation by employee or agent
46. (1) A person is liable for a violation committed by
their employee or agent, whether or not the employee or agent has been
identified or proceeded against under sections 33 to 43.
Liability of operator of a vessel
(2) The operator of a vessel is liable for a violation committed
in relation to the vessel by another person, whether or not the other person has
been identified or proceeded against under sections 33 to 43 unless, at the time
of the violation, the vessel was in the possession of another person without the
operator's consent.
Liability of operator of marine facility
(3) The operator of a marine facility is liable for a violation
committed with their consent by another person in relation to the facility,
whether or not the other person has been identified or proceeded against under
sections 33 to 43.
Officers, etc., of corporation
(4) An officer, director or agent of a corporation that commits
a violation under this Act is a party to and liable for the violation if he or
she directed, authorized, assented to, acquiesced in or participated in the
commission of the violation, whether or not the corporation has been identified
or proceeded against under sections 33 to 43.
General Provisions
Notations removed
47. (1) Unless the Minister is of the opinion that it is
not in the public interest to do so, five years after the last day on which any
of the following events occurs, the Minister is to remove every notation of
violation or default, and every suspension or cancellation of the designation of
or refusal to designate or to renew the designation of a person as a screening
officer on prescribed grounds, from any records that the Minister may keep
respecting the person:
(a) payment by the person of every penalty that the
person is liable to pay after a notice of violation, a notice of default, a
determination of a member of the Tribunal on review or a decision of an appeal
panel of the Tribunal; or
(b) the suspension or cancellation of the designation
of, or the refusal to designate or to renew the designation of, the person as
a screening officer under section 19.2.
Duty to notify
(2) When the Minister is of the opinion that removal of a
notation is not in the public interest, the Minister shall give notice of that
fact to the person.
Contents of notice
(3) A notice under subsection (2) shall provide all relevant
information concerning the grounds on which the Minister has refused to remove
the notation and shall include the address at which, and the date, being thirty
days after the notice is served, on or before which, a request for a review may
be filed.
Review
(4) Subsections 37(1) to (3) apply in respect of a refusal to
remove a notation, with any modifications that the circumstances require.
Determination
(5) The member of the Tribunal assigned to conduct the review
may confirm the Minister's decision or refer the matter back to the Minister for
reconsideration.
Right of appeal
(6) The person may, within thirty days after a determination is
made under subsection (5), appeal the determination to the Tribunal.
Loss of right of appeal
(7) If the person does not appear at the review hearing, the
person is not entitled to appeal a determination unless they establish that
there was sufficient reason to justify their absence.
Disposition of appeal
(8) The appeal panel of the Tribunal assigned to hear the appeal
may dismiss the appeal or refer the matter back to the Minister for
reconsideration.
Public record
48. The Minister shall keep a public record of notations
of violations or default that appear on any record that the Minister may keep
respecting persons under this Act.
Limitation period
49. No notice of violation may be issued more than two
years after the Minister becomes aware of the violation.
Certificate of Minister
50. A document that purports to have been issued by the
Minister and certifies the day on which the Minister became aware of a violation
is evidence, without proof of the signature or official character of the person
appearing to have signed the document, that the Minister became aware of the
violation on that day.
Regulations
51. The Governor in Council may make regulations
(a) designating, as a violation that may be proceeded
with in accordance with sections 33 to 46, 49 and 50, the contravention of a
provision that is an offence under this Act;
(b) designating violations that, if continued on more
than one day, constitute a separate violation for each day on which they are
continued;
(c) designating violations that may be proceeded with
by issuing notices of violation and fixing a penalty or a range of penalties
in respect of each such violation, up to a maximum of $25,000 but in any event
not greater than the maximum fine that would be payable if the violation were
proceeded with by way of summary conviction; and
(d) prescribing anything that by subsections 33 to 50
is to be prescribed.
Public Sector Compensation Act
60. Schedule I to the Public Sector Compensation Act
is amended by striking out the following under the heading "Other
Portions of the Public Service":
Civil Aviation Tribunal
61.
Schedule I to the Act is amended by adding the following
in alphabetical order under the heading "Other Portions of the Public
Service'':
Transportation Appeal Tribunal of Canada
Public Service Staff Relations Act
62.
Part I of Schedule I to the Public Service Staff
Relations Act is amended by striking out the following:
Civil Aviation Tribunal
63. Part I of Schedule I to the Act is amended by adding the
following in alphabetical order:
Transportation Appeal Tribunal of Canada
Railway Safety Act
64. (1) Subsection 4(1) of the Railway
Safety Act is amended by adding the following in alphabetical order:
"Tribunal"
« Tribunal »
"Tribunal" means the Transportation Appeal Tribunal of
Canada established by subsection 2(1) of the Transportation Appeal Tribunal
of Canada Act;
(2) The portion of subsection 4(5) of
the Act before paragraph (a) is replaced by the following:
Manner of filing or sending notices and documents
(5) With the exception of a notice or document sent to or by the
Tribunal, for the purposes of this Act, a notice or document must be filed with,
or sent to, a person
65. The Act is amended by adding the
following after section 27:
Refusal to designate etc.
27.1 (1) The Minister may refuse to designate a person as
a screening officer under section 27 or may suspend, cancel or refuse to renew
the designation of a person as a screening officer if the Minister is of the
opinion that the person is incompetent, does not meet the qualifications or
fulfil the conditions required for the designation or ceases to meet the
qualifications or fulfil the conditions of the designation.
Suspension or cancellation of designation for offences
(2) The Minister may suspend or cancel the designation of a
person as a screening officer if the Minister is of the opinion that the person
has committed an offence within the meaning of section 41.
Suspension of designation for immediate threat
(3) The Minister may suspend the designation of a person as a
screening officer if the Minister is of the opinion that the exercise by the
person of the functions of a screening officer constitutes, or is likely to
constitute, an immediate threat to railway security.
Notice
27.2 (1) If the Minister decides to refuse to designate a
person as a screening officer or decides to suspend, cancel or refuse to renew
the designation of a person as a screening officer, the Minister shall notify
the person of that decision.
Contents of notice
(2) A notice under subsection (1) shall include
(a) the grounds for the Minister's decision; and
(b) the address at which, and the date, being thirty
days after the notice is sent, on or before which, the person may file a
request for a review of the decision.
Effective date of suspension or cancellation
(3) In the case of a suspension or cancellation, the effective
date of the decision shall not be earlier than
(a) in the case of a decision made under subsection
27.1(1) or (3), the day that the notice was received by the person; and
(b) in the case of a decision made under subsection
27.1(2), the thirtieth day after the notice is sent.
Request for review
27.3 (1) A person affected by a decision of the Minister
under section 27.1 may, on or before the date specified in the notice under
subsection 27.2(1) or within any further time that the Tribunal on application
allows, file a written request for a review of the decision.
Effect of request
(2) A request under subsection (1) for a review of a decision of
the Minister does not operate as a stay of the decision.
Exception
(3) On application in writing by the person affected by a
decision made under subsection 27.1(2), after giving any notice to the Minister
that is, in the member's opinion, necessary and after considering any
representations made by the parties, a member of the Tribunal assigned for the
purpose may grant a stay of the decision until the review is completed, unless
he or she is of the opinion that granting a stay would constitute a threat to
railway security.
Time and place for review
27.4 (1) On receipt of a request filed under subsection
27.3(1), the Tribunal shall appoint a time and place for the review and shall
notify the Minister and the person who filed the request of the time and place
in writing.
Review procedure
(2) The member of the Tribunal assigned to conduct the review
shall provide the Minister and the person who filed the request with an
opportunity consistent with procedural fairness and natural justice to present
evidence and make representations.
Person not compelled to testify
(3) In a review of a decision made under subsection 27.1(2), the
person who filed the request for the review is not required, and shall not be
compelled, to give any evidence or testimony in the matter.
Determination
(4) The member may
(a) in the case of a decision made under subsection
27.1(1) or (3), confirm the decision or refer the matter back to the Minister
for reconsideration; or
(b) in the case of a decision made under subsection
27.1(2), confirm the decision or substitute his or her own determination.
Right of appeal
27.5 (1) Within thirty days after the determination,
(a) a person affected by the determination may appeal a
determination made under paragraph 27.4(4)(a) to the Tribunal; or
(b) a person affected by the determination or the
Minister may appeal a determination made under paragraph 27.4(4)(b) to
the Tribunal.
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.
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 paragraph
27.4(4)(a), dismiss the appeal or refer the matter back to the Minister
for reconsideration; or
(b) in the case of a determination made under paragraph
27.4(4)(b), dismiss the appeal, or allow the appeal and substitute its
own decision.
Decision to remain in effect pending reconsideration
27.6 If a matter is referred back to the Minister for
reconsideration under paragraph 27.4(4)(a) or 27.5(3)(a), the
decision of the Minister under subsection 27.1(1) or (3) to suspend or cancel a
designation remains in effect until the reconsideration is completed. However,
the member who made the determination or the appeal panel, after considering any
representations made by the parties, may grant a stay of a decision under
subsection 27.1(1) to suspend or cancel a designation until the reconsideration
is completed, if the member or panel is satisfied that granting a stay would not
constitute a threat to railway security.
Reconsideration
27.7 (1) In the case of a decision made under subsection
27.1(3), if the appeal panel has, on an appeal under section 27.5, dismissed the
appeal or if the Minister has, after reconsidering the matter pursuant to
paragraph 27.4(4)(a) or 27.5(3)(a), confirmed the suspension, the
person affected by the decision may, in writing, request the Minister to
reconsider whether the exercise by the person of the functions of a screening
officer continues to constitute, or is likely to continue to constitute, an
immediate threat to railway security.
Procedure applicable
(2) On receipt of a request by a person under subsection (1),
the Minister shall without delay conduct the reconsideration and inform the
person of his or her decision regarding the request. Sections 27.2 to 27.6 apply
in respect of that decision, with any modifications that are necessary.
Definition of "designation"
27.8 For the purposes of sections 27.1 to 27.7, "designation"
includes any privilege accorded by a designation.
66. (1) Section 31 of the Act is
amended by adding the following after subsection (4):
Contents of notice
(4.1) A notice under subsections (1) to (3) that contains an
order shall indicate the address at which, and the date, being thirty days after
the notice is sent, on or before which, the recipient of the notice may file a
request for a review of the order of the railway safety inspector.
(2) Subsection 31(9) of the Act is
replaced by the following:
Reviewable order
(9) The alteration of an order under subsection (8) is an order
that is reviewable under sections 31.1 to 31.5.
67. The Act is amended by adding the
following after section 31:
Request for review of order of railway safety inspector
31.1 (1) A person, including a railway company, who is
sent a notice under section 31 that contains an order 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 of the order.
Time and place for review
(2) On receipt of a request filed under subsection (1), the
Tribunal shall without delay appoint a time and place for the review and shall
notify the Minister and the person who filed the request of the time and place
in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review
shall provide the Minister and the person who filed the request with an
opportunity consistent with procedural fairness and natural justice to present
evidence and make representations.
Determination
(4) The member may confirm the order or refer the matter to the
Minister for consideration.
Right of appeal
31.2 (1) The person who requested the review under
section 31.1 may, within thirty days after the determination, appeal a
determination made under subsection 31.1(4) to the Tribunal.
Loss of right of appeal
(2) If the person does not appear at the review hearing, the
person is not entitled to appeal a determination unless they establish that
there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal
may dismiss the appeal or refer the matter to the Minister for consideration.
No stay of order
31.3 An order of a railway safety inspector shall not be
stayed pending a review under section 31.1, an appeal under section 31.2 or
consideration by the Minister under subsection 31.1(4) or 31.2(3).
Consideration by Minister
31.4 If a matter is referred to the Minister under
subsection 31.1(4) or 31.2(3), or if the Minister on his or her own initiative
decides to review an order of a railway safety inspector, the Minister may
confirm the order, or may, by order, alter or revoke the order of the railway
safety inspector. For greater certainty, the Minister's order may be made an
order of the Federal Court or of any superior court under section 34.
When alteration or revocation effective
31.5 An alteration or revocation under section 31.4 has
effect when the railway company or other person to whom notice of the order
under section 31 was sent receives notice of the alteration or revocation.
68. Subsection 32(4) of the Act is
replaced by the following:
Contents of notice
(4) An order contained in a notice under subsection (1), (3) or
(3.1) takes effect on the date of receipt of the notice. The notice shall
indicate the address at which, and the date, being thirty days after the notice
is sent, on or before which, the recipient of the notice may file a request for
a review of the order.
69.
The Act is amended by adding the
following after section 32:
Request for review
32.1 (1) A person, including a railway company, who is
sent a notice under section 32 that contains an order 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 of the order.
Time and place for review
(2) On receipt of a request filed under subsection (1), the
Tribunal shall appoint a time and place for the review and shall notify the
Minister and the person who filed the request of the time and place in writing.
In the case of a request for review of an order made under subsection 32(3), the
Tribunal shall do so without delay.
Review procedure
(3) The member of the Tribunal assigned to conduct the review
shall provide the Minister and the person who filed the request with an
opportunity consistent with procedural fairness and natural justice to present
evidence and make representations.
Person not compelled to testify
(4) In a review of an order made under subsection 32(3), a
person who the Minister is of the opinion has contravened a regulation made
under section 24 is not required, and shall not be compelled, to give any
evidence or testimony in the matter.
Determination
(5) The member may confirm the order or refer the matter back to
the Minister for reconsideration.
Right of appeal
32.2 (1) The person who requested the review under
section 32.1 may, within thirty days after the determination, appeal a
determination made under subsection 32.1(5) to the Tribunal.
Loss of right of appeal
(2) If the person does not appear at the review hearing, the
person is not entitled to appeal a determination unless they establish that
there was sufficient reason to justify their absence.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal
may dismiss the appeal or refer the matter back to the Minister for
reconsideration.
Stay of order
32.3 If a request for review is filed, an order made
under subsection 32(1) or (3.1) shall be stayed until the matter is finally
disposed of in accordance with section 32.1, 32.2 or 32.4. However, an order
made under subsection 32(3) shall not be stayed pending a review under section
32.1, an appeal under section 32.2 or reconsideration by the Minister under
subsection 32.1(5) or 32.2(3).
Reconsideration by Minister
32.4 If a matter is referred back to the Minister under
subsection 32.1(5) or 32.2(3), the Minister may confirm the order, or may, by
order, alter or revoke the order. For greater certainty, the Minister's order
may be made an order of the Federal Court or of any superior court under section
34.
When alteration or revocation effective
32.5 An alteration or revocation under section 32.4 has
effect when the railway company or other person to whom notice of the order
under section 32 was sent receives notice of the alteration or revocation.
70. Paragraph 46(d) of the Act
is replaced by the following:
COORDINATING AMENDMENTS
Amendment to this Act
71.
If Bill C-14, introduced in the first session of the 37th
Parliament and entitled the Canada Shipping Act, 2001, receives royal
assent, then, on the coming into force of section 1 of that Act, subsection 2(2)
of this Act is replaced by the following:
Jurisdiction generally
(2) The Tribunal has jurisdiction in respect of reviews and
appeals as expressly provided for under the Aeronautics Act, the Canada
Shipping Act, 2001, the Marine Transportation Security Act, the Railway
Safety Act and any other federal Act regarding transportation.
Bill C-14
72.
If Bill C-14, introduced in the first session of the 37th
Parliament and entitled the Canada Shipping Act, 2001 (referred to in
this section as the "other Act''), receives royal assent, then, on the coming
into force of section 2 of this Act,
(a) the definition "adjudicator'' in section 2 of
the other Act is repealed;
(b) section 2 of the other Act is amended by adding
the following in alphabetical order:
"Tribunal''
« Tribunal »
"Tribunal'' means the Transportation Appeal Tribunal of Canada
established by subsection 2(1) of the Transportation Appeal Tribunal of
Canada Act.
(c) section 15 of the other Act and the heading
before it are repealed;
(d) subparagraph 16(4)(e)(ii) of the French
version of the other Act is replaced by the following:
(ii) le capitaine ou le membre de l'équipage a été déclaré
coupable d'une infraction liée à l'exécution de ses fonctions sur un bâtiment
ou a commis une violation pour laquelle un procès-verbal a été dressé en
vertu de l'alinea 229(1)b).
(e) subsections 16(5) and (6) of the other Act are
replaced by the following:
Notice after refusal to issue
(5) The Minister of Transport must, immediately after refusing
to issue a Canadian maritime document, give the applicant a notice
(a) confirming the refusal and providing all relevant
information concerning the grounds on which the Minister has refused to issue
the document; and
(b) indicating, in the case of a refusal to issue a
document under Part 3 (Personnel) on the grounds set out in paragraph (4)(a),
(b), (c) or (e), the address at which, and the date,
being thirty days after the notice is given, on or before which, the applicant
may file a request for a review of the Minister's decision.
(f) the other Act is amended by adding the following
after section 16:
Request for review
16.1 (1) An applicant who receives a notice under
subsection 16(5) 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 of the decision if
(a) the request is in respect of a Canadian maritime
document that is issued under Part 3 (Personnel); and
(b) the grounds for refusing to issue the document are
set out in paragraph 16(4)(a), (b), (c) or (e).
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 of Transport and the applicant of the time and place in writing.
Review procedure
(3) The member of the Tribunal assigned to conduct the review
must provide the Minister of Transport and the applicant with an opportunity
consistent with procedural fairness and natural justice to present evidence and
make representations.
Person not compelled to testify
(4) In a review of a decision made under subparagraph 16(4)(e)(ii)
on the ground that an applicant has committed a violation in respect of which a
notice of violation has been issued to the applicant, the applicant is not
required, and must not be compelled, to give any evidence or testimony in the
matter before the matter that gave rise to the issue of the notice has been
disposed of in accordance with sections 232 to 232.2.
Determination
(5) The member may
(a) in the case of a decision made under paragraph
16(4)(e), confirm the decision or substitute his or her own
determination; or
(b) in any other case, confirm the decision or refer
the matter back to the Minister of Transport for reconsideration.
(g) section 20 of the other Act is replaced by the
following:
Suspension, cancellation and refusal to renew
20. (1) Subject to section 20.1, the Minister of
Transport may suspend, cancel or refuse to renew a Canadian maritime document if
the Minister is satisfied that
(a) the requirements for the issuance of the document
are no longer met;
(b) a term or condition attached to the document has
been contravened;
(c) the document was obtained by any fraudulent or
improper means or a misrepresentation of any material fact;
(d) the holder of the document has not paid a fine or
penalty imposed on them under this Act;
(e) the holder of the document has contravened a
provision of this Act or the regulations that the Minister is responsible for
administering;
(f) in the case of a Canadian maritime document issued
under Part 3 (Personnel) to a master or crew member,
(i) the master or crew member is incompetent or has
committed an act of misconduct,
(ii) the master or crew member was on board a vessel that
contravened any of sections 5.3 to 5.5 of the Coastal Fisheries
Protection Act and knew, when the contravention occurred, that the
vessel was committing the contravention, or
(iii) the master or crew member has been found guilty of an
offence related to their duties on a vessel; or
(g) in the case of a refusal to renew,
(i) the applicant has not paid a fee set under paragraph
35(1)(g) in respect of the issuance of the document, or
(ii) the Minister is of the opinion that the public interest
and, in particular, the record of the applicant or of a principal of the
applicant warrant it.
Return of document
(2) If a Canadian maritime document is suspended or cancelled,
the person who held it shall return it on demand to the Minister of Transport.
Notice before suspension or cancellation
20.1 The Minister of Transport must, before suspending or
cancelling a Canadian maritime document issued under Part 3 (Personnel), give
the holder 30 days notice of the proposed suspension or cancellation. The notice
must
(a) provide the holder with all relevant information
concerning the grounds on which the Minister proposes to suspend or cancel the
document; and
(b) indicate, in the case of a proposed suspension or
cancellation of a document on the grounds referred to in paragraph 20(1)(a),
(b), (c), (e) or (f) or subparagraph 20(1)(g)(ii),
the address at which, and the date, being 30 days after the notice is given,
on or before which, the applicant may file a request for a review of the
Minister's decision.
Exception
20.2 (1) The Minister of Transport may suspend or cancel
a Canadian maritime document issued under Part 3 (Personnel) without complying
with section 20.1 if, on ex parte application by the Minister, the
Tribunal determines that compliance with that section is not in the interest of
public safety.
Decision within 24 hours
(2) An application by the Minister of Transport under subsection
(1) must be heard by a member of the Tribunal, sitting alone, whose
determination shall be made within 24 hours after the application is filed with
the Tribunal.
Appeal
(3) The Minister of Transport may, within 24 hours after the
determination, appeal the determination to the Tribunal.
Decision within 48 hours
(4) The appeal panel of the Tribunal assigned to hear the appeal
shall make a decision within 48 hours after the appeal is filed with the
Tribunal.
Notice after suspension, cancellation or refusal to renew
20.3 Except where notice of a proposed suspension or
cancellation of a Canadian maritime document is given under section 20.1, the
Minister of Transport must, immediately after suspending, cancelling or refusing
to renew a Canadian maritime document, give the holder a notice that
(a) confirms the suspension, cancellation or refusal
and provides all relevant information concerning the grounds on which the
Minister suspended, cancelled or refused to renew the document; and
(b) indicates, in the case of the suspension or
cancellation of, or the refusal to renew, a document on the grounds referred
to in paragraph 20(1)(a), (b), (c), (e) or (f)
or subparagraph 20(1)(g)(ii), the address at which, and the date, being
30 days after the notice is given, on or before which, the applicant may file
a request for a review of the Minister's decision.
Request for review
20.4 (1) Subject to subsection (2), the holder of a
Canadian maritime document that is referred to in a notice under section 20.1 or
20.3 may, within the time specified in the notice or any further time that the
Tribunal on application allows, file a written request for a review of the
decision referred to in the notice.
Exception
(2) A request for a review must not be filed with, or accepted
by, the Tribunal if the grounds for suspending, cancelling or refusing to renew
the document are set out in paragraph 20(1)(d) or subparagraph 20(1)(g)(i).
Effect of request
(3) The filing of a request for a review in respect of a notice
under section 20.1 operates as a stay of the proposed suspension or cancellation
until the matter is finally disposed of in accordance with this section or
section 20.5.
Time and place for review
(4) 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 of Transport and the holder of the time and place in writing.
Review procedure
(5) The member of the Tribunal assigned to conduct the review
must provide the Minister of Transport and the holder with an opportunity
consistent with procedural fairness and natural justice to present evidence and
make representations.
Person not compelled to testify
(6) In a review of a decision made under paragraph 20(1)(e),
the holder is not required, and must not be compelled, to give any evidence or
testimony in the matter.
Determination
(7) The member may
(a) in the case of a decision made under paragraph
20(1)(e) or subparagraph 20(1)(f)(ii) or (iii), confirm the
Minister of Transport's decision or substitute his or her own determination;
and
(b) in any other case, confirm the Minister of
Transport's decision or refer the matter back to the Minister for
reconsideration.
Right of appeal
20.5 (1) The applicant for, or holder of, a Canadian
maritime document may appeal to the Tribunal a determination made under
subsection 16.1(5) or 20.4(7), and the Minister of Transport may appeal to the
Tribunal a determination made under paragraph 16.1(5)(a) or 20.4(7)(a).
The time limit for making an appeal is 30 days after the determination.
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.
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 paragraph
16.1(5)(a) or 20.4(7)(a), dismiss the appeal, or allow the
appeal and substitute its own decision; or
(b) in the case of a determination made under paragraph
16.1(5)(b) or 20.4(7)(b), dismiss the appeal or refer the matter
back to the Minister of Transport for reconsideration.
(h) paragraphs 35(1)(a) and (c) of the
other Act are repealed;
(i) subsection 229(1) of the other Act is replaced
by the following:
229. (1) If the Minister has reasonable grounds to
believe that a person or vessel has committed a violation, the Minister may
Description abrégée
(3) Il peut établir, pour toute violation, une description abrégée
à utiliser dans les procès-verbaux.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Determination
(6) The member may confirm the Minister's decision or determine
that the person or vessel has complied with the assurance of compliance.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Disposition of appeal
(3) The appeal panel of the Tribunal assigned to hear the appeal
may
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:
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.
(n) paragraph 239(1)(a) of the other Act is
replaced by the following:
(a) the person or vessel pays every penalty that the
person or vessel is liable to pay after a notice of violation, a notice of
default, a determination of a member of the Tribunal on review or a decision
of an appeal panel of the Tribunal;
(o) subsection 239(3) of the other Act is replaced
by the following:
Contents of notice
(3) A notice under subsection (2) must include the address at
which, and the date, being thirty days after the notice is served, on or before
which, a request for a review may be filed.
Request for review
(4) The person or vessel 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.
Time and place for review
(5) On receipt of a request filed under subsection (4), 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.
Review procedure
(6) The member of the Tribunal assigned to conduct the review
must provide the Minister and the person who, or vessel that, filed the request
with an opportunity consistent with procedural fairness and natural justice to
present evidence and make representations.
Determination
(7) The member may confirm the Minister's decision or refer the
matter back to the Minister for reconsideration.
Right of appeal
(8) The person who, or vessel that, requested the review may,
within 30 days after the determination, appeal a determination made under
subsection (7) to the Tribunal.
Loss of right of appeal
(9) If the person or vessel does not appear at the review
hearing, the person or vessel is not entitled to appeal a determination unless
the person or vessel establishes that there was sufficient reason to justify the
absence.
Disposition of appeal
(10) The appeal panel assigned to hear the appeal may dismiss
the appeal or refer the matter back to the Minister for reconsideration.
Coming into force
73.
The provisions of this Act, other than sections 71 and
72, come into force on a day or days to be fixed by order of the Governor in
Council.
Established by the Statutes of Canada.
2001, c. 29
| |
LIST OF
AMENDMENTS |
|
|
Section |
Statutes of Canada |
In force
yyyy/mm/dd |
| . |
. |
. |
| 7(3) |
S.C. 2005, c. 22, s.
224(z.83) |
2005/04/01 |
| 10(2) |
S.C. 2005, c. 22, s.
225(z.26) |
2005/04/01 |
|
Responsibility
