PART 5.1Administrative Monetary Penalties (continued)
Marginal note:Violation and penalty
144.13 (1) Every person who contravenes or fails to comply with a provision, order, direction, decision, term or condition designated under paragraph 144.11(1)(a) commits a violation and is liable to a penalty in the amount that is determined in accordance with the regulations.
Marginal note:Purpose of penalty
(2) The purpose of the penalty is to promote compliance with this Act and not to punish.
Marginal note:Liability of directors, officers, etc.
144.14 If a corporation commits a violation, any director, officer or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the violation is a party to the violation and is liable to a penalty in the amount that is determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Act.
Marginal note:Proof of violation
144.15 In any proceedings under this Act against a person in relation to a violation, it is sufficient proof of the violation to establish that it was committed by an employee or agent or mandatary of the person, whether or not the employee or the agent or mandatary is identified or proceeded against in accordance with this Act.
Marginal note:Issuance and service of notice of violation
144.16 (1) If an inspector has reasonable grounds to believe that a person has committed a violation, the inspector may issue a notice of violation and cause it to be served on the person.
(2) The notice of violation shall
(a) name the person who is believed to have committed the violation;
(b) set out the relevant facts of the violation;
(c) set out the amount of the penalty;
(d) inform the person of their right to request a review with respect to the facts of the violation or the amount of the penalty, and of the period within which that right shall be exercised;
(e) inform the person of the time and manner of paying the penalty; and
(f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they are considered to have committed the violation and are liable to the penalty.
Marginal note:Copy of notice of violation
(3) The inspector shall, without delay after issuing the notice of violation, provide a copy of it,
(a) with respect to a violation relating to Part 3, to the board that may act as the review body and the federal Minister; or
(b) with respect to a violation relating to Part 5, to the federal Minister and
(i) the board that has jurisdiction over a management area, if the development is carried out wholly within that management area; or
(ii) the board established under Part 4, if the development is carried out in more than one management area, in a management area and an area outside any management area, or wholly outside any management area.
Rules About Violations
Marginal note:Certain defences not available
144.17 (1) A person named in a notice of violation does not have a defence by reason that the person
(a) exercised due diligence to prevent the commission of the violation; or
(b) reasonably and honestly believed in the existence of facts that, if true, would exonerate the person.
Marginal note:Common law principles
(2) Every rule and principle of the common law that renders any circumstance a justification or excuse in relation to a charge for an offence under this Act applies in respect of a violation to the extent that it is not inconsistent with this Act.
Marginal note:Continuing violation
144.18 A violation that is committed or continued on more than one day constitutes a separate violation for each day on which it is committed or continued.
Marginal note:Violation or offence
144.19 (1) Proceeding with any act or omission as a violation under this Act precludes proceeding with it as an offence under this Act, and proceeding with it as an offence under this Act precludes proceeding with it as a violation under this Act.
Marginal note:Violations not offences
(2) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation.
Marginal note:Limitation period
144.2 No notice of violation is to be issued more than two years after the day on which the federal Minister becomes aware of the acts or omissions that constitute the alleged violation.
Marginal note:Request for review
144.21 A person who is served with a notice of violation may, within 30 days after the notice is served or within any longer period prescribed by the regulations, make a request to the review body for a review of the facts of the violation or the amount of the penalty, or both.
Marginal note:Correction or cancellation of notice of violation
144.22 At any time before a request for a review in respect of a notice of violation is received by the review body, an inspector may cancel the notice of violation or correct an error in it.
144.23 On receipt of a request for a review in respect of a notice of violation, the review body shall conduct the review.
144.24 (1) If the review body is a board, it may, when conducting its review, summon any person to appear as a witness and order the witness to give evidence orally or in writing and produce any documents and things that it considers necessary for the purpose of the review.
Marginal note:Enforcement of summonses and orders
(2) Any summons issued or order made under subsection (1) may be made a summons or an order of the Federal Court or of the superior court of a province and is enforceable in the same manner as a summons or an order of that court.
(3) To make a summons issued or an order made under subsection (1) a summons or an order of the Federal Court or of the superior court of a province, the usual practice and procedure of the court in such matters may be followed or a certified copy of the summons or order may be filed with the court’s registrar and the summons or order then becomes a summons or an order of that court.
Marginal note:Fees for witnesses
(4) A witness who is served with a summons is entitled to receive the fees and allowances to which persons who are summoned to appear as witnesses before the Federal Court are entitled.
144.25 (1) The review body shall determine, as the case may be, whether the person committed the violation or whether the amount of the penalty for the violation was determined in accordance with the regulations, or both.
Marginal note:Correction of penalty
(2) If the review body determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the review body shall correct it.
Marginal note:Review of facts — burden of proof
(3) If the facts of a violation are reviewed, the inspector who issued the notice of violation shall establish, on a balance of probabilities, that the person named in it committed the violation identified in it.
Marginal note:Written reasons
(4) The review body shall make a determination in writing, with reasons, and cause it to be served on the person who requested the review.
Marginal note:Determination final — board
(5) A determination made under this section by a board acting as a review body is final and binding and, except for judicial review under section 32, is not subject to appeal or to review by any court.
Marginal note:Determination final — federal Minister
(6) A determination made under this section by the federal Minister acting as a review body is final and binding and, except for judicial review under the Federal Courts Act, is not subject to appeal or to review by any court.
(7) If the review body determines that the person who requested the review committed the violation, the person who requested the review is liable to the penalty as set out in the determination.
Marginal note:Copy of determination
(8) The review body shall, without delay after making the determination, provide a copy of it to
(a) the federal Minister, if the review body is a board; or
(b) the board to which a copy of the notice of violation was provided under subsection 144.16(3), if the review body is the federal Minister.
144.26 If a person pays the penalty set out in a notice of violation, the person is considered to have committed the violation and proceedings in respect of it are ended.
Marginal note:Failure to act
144.27 A person who neither pays the penalty within the period set out in the notice of violation — nor requests a review within the period referred to in section 144.21 — is considered to have committed the violation and is liable to the penalty.
Recovery of Penalties
Marginal note:Debt due to Her Majesty
144.28 (1) A penalty constitutes a debt due to Her Majesty in right of Canada and may be recovered as such in any court of competent jurisdiction.
Marginal note:Limitation period or prescription
(2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.
144.29 (1) The federal Minister may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 144.28(1).
(2) Registration in any court of competent jurisdiction of a certificate of non-payment has the same effect as a judgment of that court for a debt of the amount specified in the certificate and all related registration costs.
Marginal note:Authenticity of documents
144.3 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 144.16(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.
Marginal note:Publication related to violation
144.31 (1) Subject to subsection (2) and any regulations, the board that received a copy of the notice of violation under subsection 144.16(3) — whether acting as a review body or not — may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.
Marginal note:Restriction of publication
(2) The board may only make that information public if
(a) the person named in the notice of violation has paid the penalty set out in the notice;
(b) the person has not requested a review within the period referred to in section 144.21; or
(c) the review body has determined that the person who requested the review committed the violation.
PART 5.2Regional Studies
Committee Studying Impact of Works and Activities
144.32 (1) The federal Minister may establish a committee to conduct a study of the impact of existing or future works or activities carried out in a region of the Mackenzie Valley.
Marginal note:Appointment of members
(2) The federal Minister shall appoint one or more persons as members of the committee.
(3) The federal Minister shall establish the committee’s terms of reference after seeking and considering the advice of the territorial government and, if the study examines works or activities affecting any first nation or the Tlicho First Nation, the advice of that first nation or the Tlicho Government, as the case may be.
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