Transportation Appeal Tribunal of Canada Act

Link to law: http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2001_29/FullText.html

Transportation Appeal Tribunal of Canada Act

S.C. 2001, c. 29

Assented to 2001-12-18

An Act to establish the Transportation Appeal Tribunal of Canada and to make consequential amendments to other Acts

SUMMARY

This enactment establishes the Transportation Appeal Tribunal of Canada, which replaces the Civil Aviation Tribunal established under Part IV of the Aeronautics Act, and extends the new Tribunal’s jurisdiction to the marine and railway sectors.

The enactment provides for the appointment of members to the Tribunal, and sets out the general powers and authorities of the Tribunal to conduct its affairs. It also provides for an independent process of review by the Tribunal of administrative enforcement actions — including the suspension and cancellation of licences, certificates and other documents of entitlement, and the imposition of monetary penalties — taken under various federal transportation Acts. The Tribunal will also hear appeals from determinations made on review.

The enactment amends the Aeronautics Act, the Canada Shipping Act, the Canada Transportation Act, the Marine Transportation Security Act and the Railway Safety Act to establish the jurisdiction and decision-making authorities of the Tribunal under those Acts.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

1. This Act may be cited as the Transportation Appeal Tribunal of Canada Act.

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

Marginal note:Establishment

2. (1) There is hereby established a tribunal to be known as the Transportation Appeal Tribunal of Canada (“the Tribunal”).

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Full- or part-time members

(2) Members may be appointed as full-time or part-time members.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Reappointment

(2) A member is eligible to be reappointed.

Marginal note: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.

Marginal note:Remuneration

7. (1) Members shall receive the remuneration that is fixed by the Governor in Council.

Marginal note: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.

Marginal note:Status

(3) Members are deemed to be employed in the public service of Canada for the purposes of the Government Employees Compensation Act and any regulations made under section 9 of the Aeronautics Act.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Decision of panel

(6) A decision of a majority of the members of an appeal panel is a decision of the panel.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Appearance

(3) A party to a proceeding before the Tribunal may appear in person or be represented by another person, including legal counsel.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Certificate

(3) Costs or expenses under subsection (1) that have not been paid may be certified by the Tribunal.

Marginal note: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.

Marginal note: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.

Marginal note:Decision on appeal final

21. A decision of an appeal panel of the Tribunal is final and binding on the parties to the appeal.

Marginal note: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

Marginal note:Definitions

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).

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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

R.S., c. A-2Aeronautics Act

Marginal note:R.S., c. 33 (1st Supp.), s. 1

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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 14

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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

35. Subsection 6.9(8) of the Act is replaced by the following:

Marginal note: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.

Marginal note: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):

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

(2) Subsections 7(7) and (8) of the Act are replaced by the following:

Marginal note: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.

Marginal note: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.

Marginal note:1992, c. 4, s. 15(1)

37. (1) Subsection 7.1(1) of the Act is replaced by the following:

Marginal note: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.

Marginal note:1992, c. 4, s. 15(2)

(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):

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

(4) Subsections 7.1(7) to (9) of the Act are replaced by the following:

Marginal note: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.

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

38. Section 7.2 of the Act is replaced by the following:

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under subsection 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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1; 1992, c. 1, s. 5, c. 4, s. 20

39. Sections 7.7 to 7.9 of the Act are replaced by the following:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Burden of proof

(4) The burden of establishing that a person has contravened a designated provision is on the Minister.

Marginal note: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.

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

40. The portion of section 8 of the English version of the Act before paragraph (a) is replaced by the following:

Marginal note: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

Marginal note:R.S., c. 33 (1st Supp.), s. 1; 1992, c. 4, s. 22

41. Section 8.1 of the Act is replaced by the following:

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may 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.

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

42. Subsection 8.2(1) of the Act is replaced by the following:

Marginal note: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.

Marginal note:R.S., c. 33 (1st Supp.), s. 1

43. Subsection 8.3(3) of the Act is replaced by the following:

Marginal note: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).

Marginal note:R.S., c. 33 (1st Supp.), s. 5; 1992, c. 1, s. 4

44. Part IV of the Act is repealed.

Marginal note: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).

Marginal note: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).

R.S., c. S-9Canada 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;

Marginal note:R.S., c. 6 (3rd Supp.), s. 11

47. Section 120 of the Act is replaced by the following:

Marginal note: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.

Marginal note: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):

Marginal note: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):

Marginal note: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):

Marginal note: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).

Marginal note:R.S., c. 6 (3rd Supp.), s. 87(F); 1999, c. 19, ss. 15, 16

51. The heading before section 504 and sections 504 and 505 of the Act are replaced by the following:

Tribunal Hearings Related to the Competency and Conduct of Officers

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Appeal

(3) The Minister may appeal the determination to the Tribunal within 24 hours after the determination.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under 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.

Marginal note:Endorsements

505.3 A reference to a certificate in sections 504 to 505.2 includes a reference to an endorsement of that certificate.

1996, c. 10Canada Transportation Act

52. (1) The portion of subsection 180(2) of the Canada Transportation Act before paragraph (a) is replaced by the following:

Marginal note: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;

R.S., c. F-11Financial 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

Tribunal de l’aviation civile

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

Tribunal d’appel des transports du Canada

and a corresponding reference in column II to the “Minister of Transport”.

Marine Transportation Security Act

Marginal note:1994, c. 40

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:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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).

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under 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.

Marginal note: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.

Marginal note: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.

Marginal note: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:

Marginal note: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

Marginal note: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.

Marginal note:Extension of period

(2) The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person is unable to comply with the assurance of compliance for reasons beyond the person’s control.

Marginal note:Short-form descriptions in notices of violation

(3) The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Deemed violation

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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Certain defences 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.

Marginal note:Determination

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

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under subsection 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

Marginal note: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

Marginal note: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).

Marginal note: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.

Marginal note: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

Marginal note: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.

Marginal note:Defence

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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Review

(4) Subsections 37(1) to (3) apply in respect of a refusal to remove a notation, with any modifications that the circumstances require.

Marginal note: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.

Marginal note:Right of appeal

(6) The person may, within thirty days after a determination is made under subsection (5), appeal the determination to the Tribunal.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Limitation period

49. No notice of violation may be issued more than two years after the Minister becomes aware of the violation.

Marginal note: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

Marginal note: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.

1991, c. 30Public 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

Tribunal de l’aviation civile

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

Tribunal d’appel des transports du Canada

R.S., c. P-35Public Service Staff Relations Act

Marginal note:SOR/88-105

62. Part I of Schedule I to the Public Service Staff Relations Act is amended by striking out the following:

Civil Aviation Tribunal

Tribunal de l’aviation civile

63. Part I of Schedule I to the Act is amended by adding the following in alphabetical order:

Transportation Appeal Tribunal of Canada

Tribunal d’appel des transports du Canada

R.S., c. 32 (4th Supp.)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:

Marginal note: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:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under 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.

Marginal note: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.

Marginal note: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.

Marginal note: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):

Marginal note: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:

Marginal note: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:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Determination

(4) The member may confirm the order or refer the matter to the Minister for consideration.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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).

Marginal note: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.

Marginal note: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.

Marginal note:1999, c. 9, s. 25

68. Subsection 32(4) of the Act is replaced by the following:

Marginal note: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:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Determination

(5) The member may confirm the order or refer the matter back to the Minister for reconsideration.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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).

Marginal note: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.

Marginal note: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.

Marginal note:1999, c. 9, s. 33

70. Paragraph 46(d) of the Act is replaced by the following:

(d) orders and notices sent under sections 31 to 32.5;

COORDINATING AMENDMENTS

Amendment to This Act

Marginal note: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:

Marginal note: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

Marginal note: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:

Marginal note: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:

Marginal note: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).

Marginal note:Time and place for review

(2) On receipt of a request filed under subsection (1), the Tribunal must appoint a time and place for the review and must notify the Minister of Transport and the applicant of the time and place in writing.

Marginal note:Review procedure

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

Marginal note: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.

Marginal note: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:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Appeal

(3) The Minister of Transport may, within 24 hours after the determination, appeal the determination to the Tribunal.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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).

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

(a) in the case of a determination made under 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

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

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

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

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

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

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

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

(iii) particulars of the manner in which, and the address at which, the penalty must be paid or a review requested.

(j) subsection 229(3) of the French version of the other Act is replaced by the following:

Marginal note:Description abrégée

(3) Il peut établir, pour toute violation, une description abrégée à utiliser dans les procès-verbaux.

(k) sections 230 to 232 of the other Act are replaced by the following:

Marginal note:Deemed violation

230. (1) A person who, or vessel that, enters into an assurance of compliance is, unless a review is requested under subsection (2), deemed to have committed the violation in respect of which the assurance was entered into.

Marginal note:Request for review

(2) A person who, or vessel that, enters into an assurance of compliance may, within 48 hours after the assurance is signed, unless a notice of default is served within that period under section 231.1, request a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under paragraph 232(1)(b) of the facts of the violation and the amount of the penalty is deemed to have been requested.

Marginal note:When assurance of compliance complied with

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

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

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

Marginal note:When assurance of compliance not complied with

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

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

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

Marginal note:Contents of notice

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

Marginal note:No set-off

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

Marginal note:Request for review

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

Marginal note:Time and place for review

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

Marginal note:Review procedure

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

Marginal note:Burden of proof

(4) The burden is on the Minister to establish that the person or vessel did not comply with the assurance of compliance referred to in the notice. The person is not required, and must not be compelled, to give any evidence or testimony in the matter.

Marginal note:Certain defences not available

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

Marginal note:Determination

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

Marginal note:Return of security

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

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

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

Marginal note:Notice of violation

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

(a) pay the amount of the penalty; or

(b) within thirty days after being served or any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the facts of the violation or the amount of the penalty.

Marginal note:When review not requested

(2) If a review of the facts of the violation is not requested, the person or vessel is deemed to have committed the violation in respect of which the notice was served.

Marginal note:Time and place for review

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

Marginal note:Review procedure

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

Marginal note:Burden of proof

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

Marginal note:Determination

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

Marginal note:Right of appeal

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

Marginal note:Loss of right of appeal

(2) A party that does not appear at a review hearing is not entitled to appeal a determination, unless they establish that there was sufficient reason to justify their absence.

Marginal note:Disposition of appeal

(3) The appeal panel of the Tribunal assigned to hear the appeal may

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

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

(l) section 234 of the other Act is replaced by the following:

Marginal note:Debts due to Her Majesty

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

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

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

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

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

(m) subsection 235(1) of the other Act is replaced by the following:

Marginal note:Certificate

235. (1) All or part of a debt referred to in section 234 in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.

(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:

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Determination

(7) The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

Marginal note: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.

Marginal note: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.

Marginal note: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.

(p) paragraph 244(i) of the other Act is repealed.

COMING INTO FORCE

Marginal note: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.
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