Administrative Monetary Penalties

Powers

Marginal note:Regulations

• 207.01 (1) Subject to section 6, the Governor in Council may make regulations

  • (a) designating as a violation that may be proceeded with in accordance with this Part

    • (i) the contravention of any specified provision of this Part or of any of its regulations,

    • (ii) the contravention of any direction, requirement, decision or order, or of any direction, requirement, decision or order of a specified class of directions, requirements or orders, made under this Part, or

    • (iii) the failure to comply with any term or condition of

      • (A) an operating licence or authorization, or a specified class of operating licences or authorizations, issued under this Part, or

      • (B) any approval or exemption or a specified class of approvals or exemptions, granted under this Part;

  • (b) respecting the determination of, or the method of determining, the amount payable as the penalty, which may be different for individuals and other persons, for each violation; and

  • (c) respecting the service of documents required or authorized under section 207.06, 207.2 or 207.5, including the manner and proof of service and the circumstances under which documents are considered to be served.

• Marginal note:Maximum

  (2) The amount that may be determined under any regulations made under paragraph (1)(b) as the penalty for a violation shall not be more than $25,000, in the case of an individual, and $100,000, in the case of any other person.

Marginal note:Powers

207.02 The Board may

• (a) establish the form of notices of violation;

• (b) designate persons or classes of persons who are authorized to issue notices of violation;

• (c) establish, in respect of each violation, a short-form description to be used in notices of violation; and

• (d) designate persons or classes of persons to conduct reviews under section 207.4.

Violations

Marginal note:Commission of violation

• 207.03 (1) Every person who contravenes or fails to comply with a provision, direction, requirement, decision or order, or term or condition the contravention of which, or the failure to comply with which, is designated to be a violation by a regulation made under paragraph 207.01(1)(a) commits a violation and is liable to a penalty of an amount to be determined in accordance with the regulations.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Part and not to punish.

Marginal note:Liability of directors, officers, etc.

207.04 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 of an amount to be determined in accordance with the regulations, whether or not the corporation has been proceeded against in accordance with this Part.

Marginal note:Proof of violation

207.05 In any proceedings under this Part 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 agent or mandatary is identified or proceeded against in accordance with this Part.

Marginal note:Issuance and service of notice of violation

• 207.06 (1) If a person designated under paragraph 207.02(b) believes on reasonable grounds that a person has committed a violation, the designated person may issue a notice of violation and cause it to be served on the person.

• Marginal note:Contents

  (2) The notice of violation shall

  • (a) name the person that is believed to have committed the violation;

  • (b) set out the relevant facts surrounding the violation;

  • (c) set out the amount of the penalty for the violation;

  • (d) inform the person of their right, under section 207.2, to request a review with respect to the amount of the penalty or the facts of the violation, and of the prescribed period within which that right is to be exercised;

  • (e) inform the person of the manner of paying the penalty set out in the notice; and

  • (f) inform the person that, if they do not pay the penalty or exercise their right referred to in paragraph (d), they will be considered to have committed the violation and that they are liable to the penalty set out in the notice.

Rules About Violations

Marginal note:Certain defences not available

• 207.07 (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 Part applies in respect of a violation to the extent that it is not inconsistent with this Part.

Marginal note:Continuing violation

207.08 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

• 207.09 (1) Proceeding with any act or omission as a violation under this Part precludes proceeding with it as an offence under this Part, and proceeding with it as an offence under this Part precludes proceeding with it as a violation under this Part.

• 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 or prescription period

207.1 No notice of violation is to be issued more than two years after the day on which the matter giving rise to the violation occurred.

Reviews

Marginal note:Right to request review

207.2 A person who is served with a notice of violation may, within 30 days after the day on which it is served, or within any longer period that the Board allows, make a request to the Board for a review of the amount of the penalty or the facts of the violation, or both.

Marginal note:Correction or cancellation of notice of violation

207.3 At any time before a request for a review in respect of a notice of violation is received by the Board, a person designated under paragraph 207.02(b) may cancel the notice of violation or correct an error in it.

Marginal note:Review

• 207.4 (1) On receipt of a request made under section 207.2, the Board shall conduct the review or cause the review to be conducted by a person designated under paragraph 207.02(d).

• Marginal note:Restriction

  (2) The Board shall conduct the review if the notice of violation was issued by a person designated under paragraph 207.02(d).

Marginal note:Object of review

• 207.5 (1) The Board or the person conducting the review shall determine, as the case may be, whether the amount of the penalty for the violation was determined in accordance with the regulations or whether the person committed the violation, or both.

• Marginal note:Determination

  (2) The Board or the person conducting the review shall render a determination and the reasons for it in writing and cause the person who requested the review to be served with a copy of them.

• Marginal note:Correction of penalty

  (3) If the Board or the person conducting the review determines that the amount of the penalty for the violation was not determined in accordance with the regulations, the Board or the person, as the case may be, shall correct the amount of the penalty.

• Marginal note:Responsibility

  (4) If the Board or the person conducting the review 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 notice issued under section 207.06 or as set out in the determination if the amount of the penalty was corrected under subsection (3).

• Marginal note:Determination final

  (5) A determination made under this section is final and binding and, subject to review by the Supreme Court of Nova Scotia, is not subject to appeal or to review by any court.

Marginal note:Burden of proof

207.6 If the facts of a violation are reviewed, the person 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.

Responsibility

Marginal note:Payment

207.7 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

207.8 A person that neither pays the penalty imposed under this Part nor requests a review in the period referred to in section 207.2 is considered to have committed the violation and is liable to the penalty.

Recovery of Penalties

Marginal note:Debt to Her Majesty

• 207.9 (1) A penalty constitutes a debt due to Her Majesty in right of the Province and may be recovered in the Supreme Court of Nova Scotia.

• Marginal note:Limitation period

  (2) No proceedings to recover the debt are to be instituted more than five years after the day on which the debt becomes payable.

Marginal note:Certificate

• 207.91 (1) The Board may issue a certificate of non-payment certifying the unpaid amount of any debt referred to in subsection 207.9(1).

• Marginal note:Registration

  (2) Registration in the Supreme Court of Nova Scotia of a certificate of non-payment issued under subsection (1) 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.

General

Marginal note:Admissibility of documents

207.92 In the absence of evidence to the contrary, a document that appears to be a notice issued under subsection 207.06(1) is presumed to be authentic and is proof of its contents in any proceeding in respect of a violation.

Marginal note:Publication

207.93 The Board may make public the nature of a violation, the name of the person who committed it and the amount of the penalty.

• Marginal note:Trésor

  (2) Dès que possible après leur perception ou réception par l’Office sous le régime du présent article, les montants sont déposés au crédit du receveur général et versés au Trésor selon les modalités prévues, par règlement, par le Conseil du Trésor conformément à la Loi sur la gestion des finances publiques.

• Marginal note:Exception

  (5) If the per capita fiscal capacity of the Province in respect of any fiscal year is equal to or greater than the national average per capita fiscal capacity in respect of that fiscal year, no payment shall be made under subsection (1) in respect of that fiscal year. The per capita fiscal capacity of the Province and the national average per capita fiscal capacity shall be determined in accordance with section 247.1.

Marginal note:Definitions

• 247.1 (1) The following definitions apply in this section.

  “Fiscal Arrangements Act”

  « loi de 1977 »

  “Fiscal Arrangements Act” means the Federal-Provincial Fiscal Arrangements and Federal Post-Secondary Education and Health Contributions Act, 1977.

  “national average per capita fiscal capacity”

  « moyenne nationale »

  “national average per capita fiscal capacity” means the per capita fiscal capacity of all of the provinces.

  “province”

  « province »

  “province” does not include Yukon, the Northwest Territories or Nunavut.

• Marginal note:Per capita fiscal capacity of Province and national average

  (2) For the purposes of subsection 247(5), the per capita fiscal capacity of the Province and the national average per capita fiscal capacity in respect of any fiscal year shall be determined by the Minister of Finance by dividing the aggregate of the estimated revenues of the Province or of all provinces, as the case may be, in respect of the fiscal year, as determined in accordance with subsection (3), by the population of the Province or of all provinces, as the case may be, in respect of the fiscal year.

• Marginal note:Estimated revenues

  (3) The aggregate of the estimated revenues of the Province or of all provinces, as the case may be, in respect of any fiscal year shall be determined by

  • (a) describing the sources from which are or may be derived the aggregate of the following revenues, namely:

    • (i) the aggregate of the revenues derived by all provinces in respect of the fiscal year from all sources described in the definition “revenue source” in subsection 4(2) of the Fiscal Arrangements Act as it read on April 1, 1982,

    • (ii) the aggregate of the revenues that are

      • (A) derived by all municipalities, boards, commissions and other local authorities from the sources described in paragraphs (z) and (bb) of the definition “revenue source” in subsection 4(2) of the Fiscal Arrangements Act as it read on April 1, 1982, and

      • (B) deemed by virtue of subsection 4(5) of the Fiscal Arrangements Act as it read on April 1, 1982 to be derived by a province in respect of the fiscal year, and

    • (iii) the aggregate of the revenues derived by all provinces in respect of the fiscal year and by all municipalities, boards, commissions and other local authorities in respect of their financial years ending in the fiscal year that

      • (A) are not included in subparagraph (i) or (ii), and

      • (B) are included in the computation of fiscal equalization payments for the fiscal year under the Fiscal Arrangements Act;

    as those sources are described in the definition “revenue source” in subsection 4(2) of the Fiscal Arrangements Act, varying the description of such sources to take into account the changes and factors referred to in subsection (4);

  • (b) defining the expression “revenue base”, in respect of each distinct source described in paragraph (a), for a province in respect of the fiscal year, that relates to the measure of the relative capacity of the province to derive revenue from that source for that fiscal year,

    • (i) as that expression is defined in respect of that source, in section 6 of the Federal-Provincial Fiscal Arrangements and Established Programs Financing Regulations, 1982, and

    • (ii) varying that definition to take into account the changes and factors referred to in subsection (4);

  • (c) estimating the amount of each revenue base defined in paragraph (b), in respect of each source described in paragraph (a), for the Province or all provinces, as the case may be, for the fiscal year;

  • (d) estimating the amount of the revenues of the Province or all provinces, as the case may be, in respect of each source described in paragraph (a) for the fiscal year by multiplying

    • (i) the national average rate of tax for the fiscal year in respect of that source, and

    • (ii) the amount of the revenue base estimated under paragraph (c) in respect of that source for the Province or all provinces, as the case may be, for the fiscal year; and

  • (e) adding the amounts of the revenues of the Province or of all provinces, as the case may be, estimated under paragraph (d) in respect of all sources described in paragraph (a).

• Marginal note:Changes and factors

  (4) For the purposes of paragraph (3)(a) and subparagraph (3)(b)(ii), the following changes and factors should be taken into account, namely,

  • (a) changes in any laws of a province relating to taxation that apply in respect of fiscal years subsequent to the fiscal year beginning on April 1, 1982;

  • (b) changes to improve the accuracy of comparisons among provinces of relative capacity to derive revenue from any source described in paragraph (3)(a);

  • (c) changes made by statistical agencies to statistical data or methods used to measure the relative capacities of provinces to derive revenue from any such source; and

  • (d) any other factors that, in the opinion of the Minister of Finance, are relevant to the circumstances.

• Marginal note:Average rate of tax

  (5) For the purposes of paragraph (3)(d) the national average rate of tax for a fiscal year in respect of a source is the quotient obtained by dividing

  • (a) the aggregate of the total revenues, as determined by the Minister of Finance, derived by all provinces for the fiscal year from that source, whether or not the total revenues or any portion thereof are included in the computation of the fiscal equalization payments to provinces for the fiscal year under Part I of the Fiscal Arrangements Act

  by

  • (b) the revenue base estimated under paragraph (3)(c) in respect of that source for all provinces for that fiscal year.

• Marginal note:Determination of population

  (6) For the purposes of this section, the population of a province for a fiscal year is the population of that province for that fiscal year, as determined for the purposes of Part I of the Fiscal Arrangements Act.