Agriculture and Agri-Food Administrative Monetary Penalties Act

An Act to establish a system of administrative monetary penalties for the enforcement of the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Pest Control Products Act, the Plant Protection Act, the Safe Food for Canadians Act and the Seeds Act Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Short title This Act may be cited as the Agriculture and Agri-Food Administrative Monetary Penalties Act. Definitions In this Act, agri-food Act means the Farm Debt Mediation Act, the Feeds Act, the Fertilizers Act, the Health of Animals Act, the Pest Control Products Act, the Plant Protection Act, the Safe Food for Canadians Act or the Seeds Act; (loi agroalimentaire) Minister means the Minister of Agriculture and Agri-Food, except that it means the Minister of Health in relation to a violation involving a contravention of the Pest Control Products Act, or a provision relating to food safety of an agri-food Act or of a regulation made under such an Act, and it means the Minister of Public Safety and Emergency Preparedness in relation to a notice of violation issued in respect of the contravention of program legislation referred to in subsection 11(5) of the Canadian Food Inspection Agency Act; (ministre) penalty means an administrative monetary penalty imposed under this Act for a violation; (sanction) prescribed means prescribed by regulation; (Version anglaise seulement) Tribunal means the Review Tribunal continued by subsection 27(1); (Commission) Purpose of Act The purpose of this Act is to establish, as an alternative to the existing penal system and as a supplement to existing enforcement measures, a fair and efficient administrative monetary penalty system for the enforcement of the agri-food Acts. Regulations The Minister may make regulations designating as a violation that may be proceeded with in accordance with this Act the contravention of any specified provision of an agri-food Act or of a regulation made under an agri-food Act, the contravention of any specified order, or class of orders, made by the Minister under the Plant Protection Act, or the refusal or neglect to perform any specified duty, or class of duties, imposed by or under the Plant Protection Act, the Health of Animals Act, the Pest Control Products Act or the Safe Food for Canadians Act; if the contravention, or the failure or neglect to perform the duty, as the case may be, is an offence under an agri-food Act; classifying each violation as a minor violation, a serious violation or a very serious violation; establishing, in respect of each violation, a short-form description to be used in notices of violation; fixing a penalty, or a range of penalties, in respect of each violation; respecting the circumstances under which, the criteria by which and the manner in which a penalty may be increased or reduced, including the reduction of a penalty pursuant to a compliance agreement under subsection 10(1); respecting the determination of a lesser amount that may be paid in complete satisfaction of a penalty if paid within the prescribed time and manner; respecting the circumstances under which reviews under this Act by the Tribunal shall be oral or in writing; respecting the service of documents required or authorized to be served under this Act including, without restricting the generality of the foregoing, the manner of serving such documents, the proof of their service and the circumstances under which such documents shall be deemed to have been served; prescribing anything that by this Act is to be prescribed; and generally, for carrying out the purposes and provisions of this Act. Maximum penalties The maximum penalty for a violation is in the case of a violation that is committed by an individual otherwise than in the course of a business and that is not committed to obtain a financial benefit, $2,000; and in any other case, $5,000 for a minor violation, $15,000 for a serious violation and $25,000 for a very serious violation. Criteria Without restricting the generality of paragraph (1)(d), in making regulations respecting the criteria for increasing or reducing the amount of the penalty for a violation, the Minister shall include the following in any such criteria: the degree of intention or negligence on the part of the person who committed the violation; the harm done by the violation; and the history of the person who committed the violation of prior violations or convictions under agri-food Acts within the five year period immediately before the violation. How act or omission may be proceeded with Where any act or omission can be proceeded with as a violation or as an offence, the Minister may commence proceedings in respect of that act or omission as a violation or recommend that it be proceeded with as an offence, but proceeding with it as a violation precludes proceeding with it as an offence, and proceeding with it as an offence precludes proceeding with it as a violation. Power of Minister — notices of violation The Minister may designate persons, or classes of persons, who are authorized to issue notices of violation. Commission of violation Every person who contravenes any provision of an agri-food Act or of a regulation made under an agri-food Act, contravenes any order made by the Minister under the Plant Protection Act, or refuses or neglects to perform any duty imposed by or under the Plant Protection Act, the Health of Animals Act, the Pest Control Products Act or the Safe Food for Canadians Act the contravention of which, or the refusal or neglect of which, is designated to be a violation by a regulation made under paragraph 4(1)(a) commits a violation and is liable to a warning or to a penalty in accordance with this Act. Issuance of notice of violation If a person designated under section 6 has reasonable grounds to believe that a person has committed a violation, the designated person may issue, and shall cause to be served on the person, a notice of violation that names the person, identifies the violation and contains a warning that the person has committed a violation; or sets out the penalty, established in accordance with the regulations, for the violation that the person is liable to pay, particulars concerning the time for paying and the manner of paying the penalty, and subject to the regulations, a lesser amount that may be paid in complete satisfaction of the penalty if paid within the time and manner specified in the notice. Summary of rights A notice of violation must clearly summarize, in plain language, the rights and obligations under this Act of the person on whom it is served, including the right to have the facts of the violation reviewed by the Minister or the Tribunal, and the procedure for requesting such a review. Notices with warning — request for review Where a notice of violation contains a warning, the person named in the notice may, in the prescribed time and manner, request a review of the facts of the violation by the Minister or the Tribunal. Deeming Where a person who is served with a notice of violation that contains a warning does not request a review under subsection (1) in the prescribed time and manner, the person is deemed to have committed the violation identified in the notice of violation. Notices with penalty — payment Where a notice of violation sets out a penalty and the person named in the notice pays, in the prescribed time and manner, the amount of the penalty or, subject to the regulations, the lesser amount set out in the notice that may be paid in lieu of the penalty, the person is deemed to have committed the violation in respect of which the amount is paid; the Minister shall accept that amount as and in complete satisfaction of the penalty; and the proceedings commenced in respect of the violation under section 7 are ended. Alternatives to payment Instead of paying the penalty set out in a notice of violation or, where applicable, the lesser amount that may be paid in lieu of the penalty, the person named in the notice may, in the prescribed time and manner, if the penalty is $2,000 or more, request to enter into a compliance agreement with the Minister that ensures the person’s compliance with the agri-food Act or regulation to which the violation relates; request a review by the Minister of the facts of the violation; or request a review by the Tribunal of the facts of the violation. Where a person who is served with a notice of violation that sets out a penalty does not pay the penalty in the prescribed time and manner or, where applicable, the lesser amount that may be paid in lieu of the penalty, and does not exercise any right referred to in subsection (2) in the prescribed time and manner, the person is deemed to have committed the violation identified in the notice. Compliance agreements After considering a request under paragraph 9(2)(a), the Minister may enter into a compliance agreement, as described in that paragraph, with the person making the request on such terms and conditions as are satisfactory to the Minister, which terms may include a provision for the giving of reasonable security, in a form and in an amount satisfactory to the Minister, as a guarantee that the person will comply with the compliance agreement; and provide for the reduction, in whole or in part, of the penalty for the violation. A person who makes a request under paragraph 9(2)(a) and who enters into a compliance agreement with the Minister shall, on entering into the compliance agreement, be deemed to have committed the violation in respect of which the compliance agreement was entered into. Where compliance agreement complied with Where the Minister is satisfied that a person who has entered into a compliance agreement has complied with the agreement, the Minister shall cause a notice to that effect to be served on the person and, on the service of that notice, the proceedings commenced in respect of the violation under section 7 are ended; and any security given under the compliance agreement by the person shall be returned to the person. Where compliance agreement not complied with Where the Minister is of the opinion that a person who has entered into a compliance agreement has not complied with the agreement, the Minister shall cause a notice of default to be served on the person to the effect that instead of the penalty set out in the notice of violation in respect of which the compliance agreement was entered into, the person is liable to pay twice the amount of that penalty and, for greater certainty, subsection 4(2) does not apply in respect of that amount; or the security, if any, given under the compliance agreement by the person shall be forfeited to Her Majesty in right of Canada. Effect of notice of default On the service of a notice under subsection (4), the person served has no right of set-off against any amount spent by the person under the compliance agreement and the person served is liable to pay the amount set out in the notice; or where the notice of default provides for the forfeiture of the security given under the compliance agreement, that security is forfeited to Her Majesty in right of Canada and the proceedings commenced in respect of the violation under section 7 are ended. Effect of payment Where a person pays the amount set out in a notice of default under subsection (4) in the prescribed time and manner, the Minister shall accept the amount as and in complete satisfaction of the amount owing; and Refusal to enter into compliance agreement Where the Minister refuses to enter into a compliance agreement pursuant to a request under paragraph 9(2)(a), the person who made the request may, in the prescribed time and manner, pay the amount of the penalty; or Where a person pays the amount referred to in paragraph (1)(a), the person is deemed to have committed the violation in respect of which the payment is made; the Minister shall accept the amount as and in complete satisfaction of the penalty; and If a person does not, in the prescribed time and manner, either pay the amount referred to in paragraph (1)(a) or request a review under paragraph (1)(b), the person is deemed to have committed the violation identified in the notice of violation. Review under section 8 After concluding a review requested under section 8, the Minister shall determine whether or not the person committed the violation, and the Minister shall cause a notice of any decision under this subsection to be served on the person who requested the review. Right to review Where the Minister decides under subsection (1) that a person has committed a violation, the person may, in the prescribed time and manner, request a review of the Minister’s decision by the Tribunal. Review under paragraph 9(2)(b) After concluding a review requested under paragraph 9(2)(b), the Minister shall determine whether or not the person requesting the review committed a violation and, where the Minister decides that the person committed a violation but considers that the amount of the penalty for the violation was not established in accordance with the regulations, the Minister shall correct the amount of the penalty for the violation, and the Minister shall cause a notice of any decision under this subsection to be served on the person who requested the review. Payment or right to review Where the Minister decides under subsection (1) that a person has committed a violation, the person may, in the prescribed time and manner, pay the amount of the penalty set out in the notice referred to in subsection (1), in which case the Minister shall accept the amount as and in complete satisfaction of the penalty, and the proceedings commenced in respect of the violation under section 7 are ended; or request a review of the Minister’s decision by the Tribunal. Review by Tribunal After concluding a review requested under this Act, the Tribunal shall, by order, as the case may be, confirm, vary or set aside any decision of the Minister under section 12 or 13, or determine whether or not the person requesting the review committed a violation and, where the Tribunal decides that the person committed a violation but considers that the amount of the penalty for the violation, if any, was not established in accordance with the regulations, the Tribunal shall correct the amount of the penalty, and the Tribunal shall cause a notice of any order made under this subsection to be served on the person who requested the review, and on the Minister. Payment Where the Tribunal decides under subsection (1) that a person has committed a violation, the person is liable for the amount of the penalty as set out in the order of the Tribunal and, on the payment of that amount in the time and manner specified in the order, Debts to Her Majesty The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered as such in the Federal Court: the amount of a penalty, from the time the notice of violation setting out the penalty is served; every amount undertaken to be paid pursuant to a compliance agreement entered into with the Minister under subsection 10(1), from the time the compliance agreement is entered into; the amount set out in a notice of default referred to in subsection 10(4), from the time the notice is served; the amount of a penalty as set out in a decision of the Minister under subsection 13(1), from the time the notice under that subsection is served; the amount of a penalty as set out in an order of the Tribunal under subsection 14(1), from the expiration of the time specified in the order for the payment of that amount; and the amount of any reasonable expenses incurred pursuant to section 22, from the date they are incurred. Time limit No proceedings to recover a debt referred to in subsection (1) may be commenced later than five years after the debt became payable. Debt final A debt referred to in subsection (1) is final and not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by sections 9 to 14. Certificate of default Any debt referred to in subsection 15(1) in respect of which there is a default of payment, or the part of any such debt that has not been paid, may be certified by the Minister. Judgments On production to the Federal Court, a certificate made under subsection (1) shall be registered in that Court and, when registered, has the same force and effect, and all proceedings may be taken on the certificate, as if it were a judgment obtained in that Court for a debt of the amount specified in the certificate and all reasonable costs and charges attendant in the registration of the certificate. Violations not offences For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply. Certain defences not available A person named in a notice of violation does not have a defence by reason that the person exercised due diligence to prevent the violation; or reasonably and honestly believed in the existence of facts that, if true, would exonerate the person. Common law principles 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 an agri-food Act applies in respect of a violation to the extent that it is not inconsistent with this Act. Burden of proof In every case where the facts of a violation are reviewed by the Minister or by the Tribunal, the Minister must establish, on a balance of probabilities, that the person named in the notice of violation committed the violation identified in the notice. Vicarious liability — licence holders, etc. The holder of a licence, certificate, letter of accreditation, permit, notice or other document issued under an agri-food Act is liable for a violation that is committed in respect of any matter relating to any activity or requirement under that document, whether or not the person who actually committed the violation is identified or proceeded against in accordance with this Act. Vicarious liability — acts of employees and agents A person is liable for a violation that is committed by any employee or agent of the person acting in the course of the employee’s employment or the scope of the agent’s authority, whether or not the employee or agent who actually committed the violation is identified or proceeded against in accordance with this Act. Continuing violation A violation that is continued on more than one day constitutes a separate violation in respect of each day during which it is continued. Forfeiture Where a person is deemed by this Act to have committed a violation, or the Minister, pursuant to a review under this Act, has decided that a person has committed a violation and no request to review the Minister’s decision has been made to the Tribunal in the prescribed time and manner, anything seized and detained under an agri-food Act in relation to the violation is, at the election of Her Majesty in right of Canada, immediately forfeited to Her Majesty in right of Canada and may be disposed of, at the expense of the person from whom it was seized, in accordance with the regulations made under the applicable agri-food Act unless the Minister directs otherwise. Notations removed Any notation of a violation shall, on application by the person who committed the violation, be removed from any records that may be kept by the Minister respecting that person after the expiration of five years from where the notice of violation contained a warning, the date the notice was served, or in any other case, the payment of any debt referred to in subsection 15(1), unless the removal from the record would not in the opinion of the Minister be in the public interest or another notation of a violation has been recorded by the Minister in respect of that person after that date and has not been removed in accordance with this subsection. Duty to notify The Minister shall cause a notice of removal to be served on the person in respect of whom a notation is removed pursuant to subsection (1). Service of documents Every document required or authorized to be served under this Act shall be served in accordance with the regulations, either personally or in such other manner as may be authorized in the regulations. Evidence In any proceeding for a violation or for a prosecution for an offence, a notice of violation purporting to be issued pursuant to this Act is admissible in evidence without proof of the signature or official character of the person appearing to have signed the notice of violation. Limitation period No proceedings in respect of a violation may be commenced later than six months after the day on which the subject matter of the proceedings arises, in the case of a minor violation; or two years after the day on which the subject matter of the proceedings arises, in the case of a serious violation or a very serious violation. Review Tribunal continued The Review Tribunal, continued by subsection 4.1(1) of the Canada Agricultural Products Act, chapter 20 of the 4th Supplement to the Revised Statutes of Canada, 1985, is continued. Composition The Tribunal consists of members to be appointed by the Governor in Council, one of whom is to be appointed as Chairperson. Qualifications A person is not eligible to be appointed as a member unless the person is knowledgeable about or has experience related to agriculture or agri-food and the Chairperson and at least one other member must, in addition, be a lawyer of at least ten years’ standing at the bar of any province or a notary of at least ten years’ standing at the Chambre des notaires du Québec. Membership The Chairperson is to be appointed as a full-time member and the other members are to be appointed as either full-time members or part-time members. Tenure Each member is to be appointed for a term of not more than five years and holds office during good behaviour, but may be removed by the Governor in Council for cause. Re-appointment Each member may be re-appointed as a member in the same or another capacity. No other federal public administration A member must not hold any other office in the federal public administration. Conflict of interest A member must not accept or hold any office or employment that is inconsistent with the member’s duties or take part in any matter before the Tribunal in which the member has an interest. Duties of Chairperson The Chairperson apportions work among the Tribunal’s members. Absence or incapacity of Chairperson If the Chairperson is absent or unable to act or the Chairperson’s position becomes vacant, the members must designate a member with the legal qualifications described in section 28 to act as Chairperson pending the appointment of a replacement, but no person may so act for a period exceeding 60 days without the approval of the Governor in Council. Remuneration Each full-time member is to be paid the salary that is fixed by the Governor in Council and each part-time member is entitled to be paid the fees or other remuneration that is fixed by the Governor in Council. Travel and living expenses Members are entitled to be paid, in accordance with Treasury Board directives, reasonable travel and living expenses incurred in the performance of their duties and functions while absent from their ordinary place of work, in the case of full-time members, or from their ordinary place of residence, in the case of part-time members. [Repealed, 2014, c. 20, s. 480] Head office The head office of the Tribunal is to be in the National Capital Region as defined in section 2 of the National Capital Act. Sittings The Tribunal is to sit at the places in Canada that may be specified by the Governor in Council. Tribunal The Tribunal has sole and exclusive jurisdiction to hear and determine all questions of fact or law in relation to any matter over which it is given jurisdiction under this Act or any other Act of Parliament. Review by Federal Court An order of the Tribunal may only be reviewed under the Federal Courts Act. Chairperson The jurisdiction of the Tribunal in relation to the following matters is to be exercised by the Chairperson: requests under subsection 8(1) or 12(2) for a review in respect of a notice of violation that contains a warning; and requests under paragraph 9(2)(c) or 13(2)(b) for a review in respect of a notice of violation that sets out a penalty of less than $2,000. Other legally qualified members The jurisdiction of the Tribunal in relation to a matter referred to in subsection (1) may be exercised, if the Chairperson so directs, by any member of the Tribunal with the legal qualifications described in section 28. Reviews Reviews by the Tribunal are to be heard by a single member. Court of record The Tribunal is a court of record with an official seal that must be judicially noticed. Examination of witnesses, etc. In addition to the powers conferred by subsection (1), the Tribunal has, with respect to the appearance, swearing and examination of witnesses, the production and inspection of documents and other things, the enforcement of its orders and other matters necessary or proper for the due exercise of its jurisdiction, all the powers, rights and privileges that are vested in a superior court of record and, without limiting the generality of the foregoing, it may issue a summons requiring a person to appear at the time and place stated in the summons to testify to all matters within the person’s knowledge relative to any subject matter before the Tribunal, and to bring and produce any document, book or paper in the person’s possession or under the person’s control relative to that subject matter; administer oaths and examine any person on oath; and during a hearing, receive any evidence that it considers relevant and trustworthy. Rules The Tribunal may, with the approval of the Governor in Council, make rules governing the practice and procedure in respect of hearings; the time and manner in which applications and notices must be made or given; and the work of the Tribunal under this or any other Act of Parliament. Consultations The members of the Tribunal may consult with other members of the Tribunal in respect of any matter before it. Rules of evidence The Tribunal is not bound by any legal or technical rules of evidence in conducting any matter that comes before it. It must deal with matters that come before it as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit. Privileged evidence not receivable The Tribunal is not entitled to receive or accept as evidence anything that would be inadmissible in a court by reason of any privilege under the law of evidence. [Repealed, 2012, c. 24, s. 102] The following definitions apply in sections 70 to 72. commencement day means the day on which section 102 comes into force. (date d’entrée en vigueur) former Tribunal means the Review Tribunal continued by subsection 4.1(1) of the Canada Agricultural Products Act as that subsection read immediately before the coming into force of section 102 of this Act. (ancienne Commission) new Tribunal means the Review Tribunal continued by subsection 27(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act. (nouvelle Commission) Subject to subsection 30(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, as enacted by section 102, the person who holds the office of Chairperson of the former Tribunal immediately before the commencement day continues in office as the Chairperson of the new Tribunal for the remainder of the term for which that person was appointed Chairperson. Other members Subject to subsection 30(1) of the Agriculture and Agri-Food Administrative Monetary Penalties Act, as enacted by section 102, each person who holds office as a member of the former Tribunal immediately before the commencement day continues in office as a member of the new Tribunal for the remainder of the term for which the person was appointed.