| Return of
security
|
38. Any security deposited under
subparagraph 33(1)(a)(ii) shall be returned to
the person if
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|
(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
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|
(b) a member determines under subsection
37(6), or an appeal panel decides under
subsection 40(3), that the assurance has
been complied with.
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| Notice of
violation
|
39. (1) A person served with a notice of
violation under paragraph 33(1)(b) must
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(a) pay the amount of the penalty; or
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|
(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.
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| 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.
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| 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.
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| 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.
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| 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.
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Determina-
tion
|
(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.
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| 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.
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| 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.
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| Disposition of
appeal
|
(3) The appeal panel of the Tribunal
assigned to hear the appeal may
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(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
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(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.
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| 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.
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| 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:
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(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;
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|
(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;
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(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
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(d) the amount of any reasonable expenses
incurred in attempting to recover an amount
referred to in any of paragraphs (a) to (c).
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| 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.
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| 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.
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|
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| 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.
|
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| 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.
|
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| 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.
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| 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.
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|
| 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.
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|
| 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.
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|
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|
| 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:
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(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
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|
(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.
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|
| Duty to notify
|
(2) When the Minister is of the opinion that
removal of a notation is not in the public
interest, the Minister shall give notice of that
fact to the person.
|
|
| Contents of
notice
|
(3) A notice under subsection (2) shall
provide all relevant information concerning
the grounds on which the Minister has refused
to remove the notation and shall include the
address at which, and the date, being thirty
days after the notice is served, on or before
which, a request for a review may be filed.
|
|
| Review
|
(4) Subsections 37(1) to (3) apply in respect
of a refusal to remove a notation, with any
modifications that the circumstances require.
|
|
Determina-
tion
|
(5) The member of the Tribunal assigned to
conduct the review may confirm the
Minister's decision or refer the matter back to
the Minister for reconsideration.
|
|
| Right of
appeal
|
(6) The person may, within thirty days after
a determination is made under subsection (5),
appeal the determination to the Tribunal.
|
|
| Loss of right
of appeal
|
(7) If the person does not appear at the
review hearing, the person is not entitled to
appeal a determination unless they establish
that there was sufficient reason to justify their
absence.
|
|
| Disposition of
appeal
|
(8) The appeal panel of the Tribunal
assigned to hear the appeal may dismiss the
appeal or refer the matter back to the Minister
for reconsideration.
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|
| Public record
|
48. The Minister shall keep a public record
of notations of violations or default that
appear on any record that the Minister may
keep respecting persons under this Act.
|
|
| Limitation
period
|
49. No notice of violation may be issued
more than two years after the Minister
becomes aware of the violation.
|
|
| Certificate of
Minister
|
50. A document that purports to have been
issued by the Minister and certifies the day on
which the Minister became aware of a
violation is evidence, without proof of the
signature or official character of the person
appearing to have signed the document, that
the Minister became aware of the violation on
that day.
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|
|
|
|
| Regulations
|
51. The Governor in Council may make
regulations
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|
(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;
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|
(b) designating violations that, if continued
on more than one day, constitute a separate
violation for each day on which they are
continued;
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|
(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
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(d) prescribing anything that by subsections
33 to 50 is to be prescribed.
|
|
| 1991, c. 30
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|
|
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'':
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|
Civil Aviation Tribunal
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|
Tribunal de l'aviation civile
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|
|
61. Schedule I to the Act is amended by
adding the following in alphabetical order
under the heading ``Other Portions of the
Public Service'':
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|
Transportation Appeal Tribunal of Canada
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|
Tribunal d'appel des transports du Canada
|
|
| R.S., c. P-35
|
|
|
| SOR/88-105
|
62. Part I of Schedule I to the Public
Service Staff Relations Act is amended by
striking out the following:
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|
Civil Aviation Tribunal
|
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|
Tribunal de l'aviation civile
|
|
|
|
63. Part I of Schedule I to the Act is
amended by adding the following in
alphabetical order:
|
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|
Transportation Appeal Tribunal of Canada
|
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|
Tribunal d'appel des transports du Canada
|
|
| R.S., c. 32
(4th Supp.)
|
|
|
|
|
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;
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|
|
|
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|
|
(2) The portion of subsection 4(5) of the
Act before paragraph (a) is replaced by the
following:
|
|
| Manner of
filing or
sending
notices and
documents
|
(5) With the exception of a notice or
document sent to or by the Tribunal, for the
purposes of this Act, a notice or document
must be filed with, or sent to, a person
|
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|
|
65. The Act is amended by adding the
following after section 27:
|
|
| Refusal to
designate etc.
|
27.1 (1) The Minister may refuse to
designate a person as a screening officer under
section 27 or may suspend, cancel or refuse to
renew the designation of a person as a
screening officer if the Minister is of the
opinion that the person is incompetent, does
not meet the qualifications or fulfil the
conditions required for the designation or
ceases to meet the qualifications or fulfil the
conditions of the designation.
|
|
| Suspension or
cancellation
of designation
for offences
|
(2) The Minister may suspend or cancel the
designation of a person as a screening officer
if the Minister is of the opinion that the person
has committed an offence within the meaning
of section 41.
|
|
| Suspension of
designation
for immediate
threat
|
(3) The Minister may suspend the
designation of a person as a screening officer
if the Minister is of the opinion that the
exercise by the person of the functions of a
screening officer constitutes, or is likely to
constitute, an immediate threat to railway
security.
|
|
| Notice
|
27.2 (1) If the Minister decides to refuse to
designate a person as a screening officer or
decides to suspend, cancel or refuse to renew
the designation of a person as a screening
officer, the Minister shall notify the person of
that decision.
|
|
| Contents of
notice
|
(2) A notice under subsection (1) shall
include
|
|
|
|
(a) the grounds for the Minister's decision;
and
|
|
|
|
(b) the address at which, and the date, being
thirty days after the notice is sent, on or
before which, the person may file a request
for a review of the decision.
|
|
| Effective date
of suspension
or
cancellation
|
(3) In the case of a suspension or
cancellation, the effective date of the decision
shall not be earlier than
|
|
|
|
(a) in the case of a decision made under
subsection 27.1(1) or (3), the day that the
notice was received by the person; and
|
|
|
|
(b) in the case of a decision made under
subsection 27.1(2), the thirtieth day after
the notice is sent.
|
|
| Request for
review
|
27.3 (1) A person affected by a decision of
the Minister under section 27.1 may, on or
before the date specified in the notice under
subsection 27.2(1) or within any further time
that the Tribunal on application allows, file a
written request for a review of the decision.
|
|
| Effect of
request
|
(2) A request under subsection (1) for a
review of a decision of the Minister does not
operate as a stay of the decision.
|
|
| Exception
|
(3) On application in writing by the person
affected by a decision made under subsection
27.1(2), after giving any notice to the Minister
that is, in the member's opinion, necessary
and after considering any representations
made by the parties, a member of the Tribunal
assigned for the purpose may grant a stay of
the decision until the review is completed,
unless he or she is of the opinion that granting
a stay would constitute a threat to railway
security.
|
|
| Time and
place for
review
|
27.4 (1) On receipt of a request filed under
subsection 27.3(1), the Tribunal shall appoint
a time and place for the review and shall notify
the Minister and the person who filed the
request of the time and place in writing.
|
|
| Review
procedure
|
(2) The member of the Tribunal assigned to
conduct the review shall provide the Minister
and the person who filed the request with an
opportunity consistent with procedural
fairness and natural justice to present
evidence and make representations.
|
|