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Marine Liability Act (S.C. 2001, c. 6)

Full Document:  

Act current to 2024-05-28 and last amended on 2023-06-22. Previous Versions

PART 8General Provisions (continued)

Administration and Enforcement (continued)

Marginal note:Direction to move detained ship

 The Minister may

  • (a) on application made by the owner or the master of a detained ship, in the form and manner prescribed by the Minister, permit the master to move it in accordance with the Minister’s directions;

  • (b) on application made by the owner of a dock or wharf, or by the person in charge of a harbour, at which a detained ship is situated, in the form and manner prescribed by the Minister, direct the person who is, or appears to be, in charge of the ship to move the ship in accordance with the Minister’s directions; and

  • (c) if a person to whom a direction is given under paragraph (b) does not comply with it and the Minister is satisfied that the applicant for the direction has sufficient insurance in place to cover any incident that may arise from the moving of the ship, authorize the applicant to move it in accordance with the Minister’s directions and at the owner’s expense.

  • 2001, c. 6, s. 130
  • 2009, c. 21, s. 11

Administrative Monetary Penalties

Assurances of Compliance and Notices of Violation

Marginal note:Violation

  •  (1) Every person who contravenes any of the following provisions commits a violation and is liable to a penalty:

    • (a) subsections 74.4(2) and (3), any of paragraphs 114.1(2)(a) to (d), subsections 114.2(1), 117.1(1) and (1.1), 117.3(2) and 118(1) and (1.1), section 118.1 and subsection 129(7);

    • (b) a provision of this Act or of the regulations the contravention of which is designated as a violation by a regulation made under paragraph 130.19(a).

  • Marginal note:Penalty

    (2) The maximum amount payable as the penalty for each violation set out in subsection (1) is, in the case of an individual, $50,000 and, in the case of any other person, $250,000.

  • Marginal note:Clarification

    (3) If a contravention of a provision may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other.

  • Marginal note:Nature of violation

    (4) 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:Due diligence defence

    (5) A person shall not be found to be liable for a violation under this Act, other than in relation to a contravention of subsection 117.3(2) or 118(1) or (1.1), if they establish that they exercised due diligence to prevent its commission.

  • 2018, c. 27, s. 744

Marginal note:Assurance of compliance or notice of violation

  •  (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, is to be deposited with the Minister, and

      • (iii) sets out the penalty 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 them, identifies the violation and sets out

      • (i) the penalty that the person is liable to pay for the violation,

      • (ii) the period, being 30 days after the day on which the notice is served, within which the penalty is to be paid or a review is to be requested, and

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

  • 2018, c. 27, s. 744

Marginal note:Deemed violation

  •  (1) A person who enters into an assurance of compliance under paragraph 130.02(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 48 hours after the assurance is signed, unless a notice of default is served within that period under subsection 130.05(1), file a request with the Transportation Appeal Tribunal of Canada for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and the person is deemed to have filed a written request for a review of the facts of the violation and the amount of the penalty under paragraph 130.09(1)(b).

  • 2018, c. 27, s. 744

Marginal note:When assurance of compliance complied with

 If the Minister is satisfied that a person who has entered into an assurance of compliance under paragraph 130.02(1)(a) has complied with it, he or she 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 130.02(1)(a)(ii) shall be returned to the person.

  • 2018, c. 27, s. 744

Marginal note:When assurance of compliance not complied with

  •  (1) If the Minister is of the opinion that a person who has entered into an assurance of compliance under paragraph 130.02(1)(a) has not complied with it, he or she may cause a notice of default to be served on the person to the effect that, unless a member of the Transportation Appeal Tribunal of Canada determines under section 130.07 that the assurance has been complied with, or an appeal panel of that Tribunal decides under section 130.1 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 130.02(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

  • Marginal note:Contents of notice

    (2) The notice shall include the address at which, and the date — being 30 days after the day on which the notice is served — on or before which, a request for a review may be filed and the particulars concerning the procedure for requesting a review.

  • Marginal note:Effect of notice of default

    (3) Once served with the notice of default, the person may not deduct from the amount set out in the notice any amount that the person spent under the assurance of compliance.

  • 2018, c. 27, s. 744

Marginal note:Manner of service

  •  (1) A notice referred to in any of sections 130.02, 130.04, 130.05 and 130.18 is to be served

    • (a) in the case of an individual,

      • (i) by leaving a copy of it with the individual at any place or with someone who appears to be an adult member of the same household at the individual’s last known address or usual place of residence or, in the case of an individual under the age of 18, with a parent or other person having custody of them or exercising parental authority over them, or

      • (ii) by sending a copy of it by registered mail, courier or electronic means to the individual’s last known address or usual place of residence; and

    • (b) in the case of a person other than an individual,

      • (i) by leaving a copy of it with their representative or with an officer or other individual who appears to control or manage the person’s or representative’s head office or place of business, or

      • (ii) by sending a copy of it by registered mail, courier or electronic means to their representative, to an individual referred to in subparagraph (i) or to the person’s or representative’s head office or place of business.

  • Marginal note:Proof of service

    (2) Service may be proved by

    • (a) an acknowledgement of service signed by or on behalf of the person served, specifying the date and location of service;

    • (b) a certificate of service, signed by the person who effected the service, indicating the name of the person served and the means by which and day on which service was effected; or

    • (c) a record of electronic transmission setting out the date and time of transmission.

  • Marginal note:Date service effective

    (3) In the absence of an acknowledgement of service or a certificate of service, service is considered effective,

    • (a) in the case of service by registered mail or courier, on the 10th day after the day on which the notice is sent, as indicated on the receipt issued by the postal or courier service; and

    • (b) in the case of service by electronic means, on the day on which it is sent, as indicated on the record of transmission.

  • 2018, c. 27, s. 744

Marginal note:Request for review

  •  (1) A person served with a notice under subsection 130.05(1) may, no later than the date specified in the notice or within any further time that the Transportation Appeal Tribunal of Canada on application allows, file a written request for a review of the Minister’s decision made under that subsection with the Tribunal.

  • Marginal note:Time and place for review

    (2) On receipt of the request, the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.

  • Marginal note:Review procedure

    (3) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.

  • 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) Despite subsection 130.01(5), a person does not have a defence by reason that the person exercised due diligence to comply with the assurance of compliance.

  • Marginal note:Determination by member

    (6) At the conclusion of the review, the member who conducts the review shall confirm the Minister’s decision or determine that the person has complied with the assurance of compliance and shall without delay inform the parties of his or her decision.

  • 2018, c. 27, s. 744

Marginal note:Return of security

 Any security deposited under subparagraph 130.02(1)(a)(ii) shall be returned to the person if

  • (a) a notice is served under subsection 130.05(1) and the person pays double the amount of the penalty set out in the assurance of compliance; or

  • (b) a member of the Transportation Appeal Tribunal of Canada determines under subsection 130.07(6), or an appeal panel of that Tribunal decides under subsection 130.1(3), that the assurance has been complied with.

  • 2018, c. 27, s. 744

Marginal note:Notice of violation — options

  •  (1) A person served with a notice of violation under paragraph 130.02(1)(b) shall

    • (a) pay the amount of the penalty; or

    • (b) within 30 days after the day on which the notice is served or any further time that the Transportation Appeal Tribunal of Canada 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:Amount paid or no review requested

    (2) If a review is not requested within the period referred to in paragraph (1)(b), or the amount of the penalty is paid, the person is considered to have committed the violation in respect of which the notice was served and any proceedings in respect of the violation are ended.

  • Marginal note:Time and place for review

    (3) On receipt of a request filed under paragraph (1)(b), the Transportation Appeal Tribunal of Canada shall specify a time and place for the review and notify the Minister and the person who filed the request of that time and place in writing.

  • Marginal note:Review procedure

    (4) The member of the Transportation Appeal Tribunal of Canada who is assigned to conduct the review shall provide the Minister and the person with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations at the review.

  • Marginal note:Burden of proof

    (5) In every case when the facts of a violation are reviewed, 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 by member

    (6) At the conclusion of the review, the member who conducts the review shall, without delay and in writing, inform the Minister and the person who is alleged to have committed a violation of the member’s determination.

  • Marginal note:Determination — no violation

    (7) If the member determines that the person has not committed a violation, then, subject to section 130.1, no further proceedings under this Act may be taken against the person in respect of the alleged violation.

  • Marginal note:Determination — violation

    (8) If the member determines that the person has committed a violation, then the member shall inform the Minister and the person, subject to subsection 130.01(2) and regulations made under paragraph 130.19(b), of the amount determined by the member to be payable to the Transportation Appeal Tribunal of Canada by or on behalf of the person and the period within which it is to be paid.

  • 2018, c. 27, s. 744

Marginal note:Right of appeal

  •  (1) The Minister or the person who requested the review may, within 30 days after the day on which a determination is made under subsection 130.07(6) or 130.09(6), appeal the determination to the Transportation Appeal Tribunal of Canada.

  • Marginal note:Loss of right of appeal

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

  • Marginal note:Disposition of appeal

    (3) At the conclusion of the review, the appeal panel of the Transportation Appeal Tribunal of Canada that is assigned to hear the appeal shall

    • (a) in the case of a determination made under subsection 130.07(6), dismiss the appeal or allow the appeal and substitute its own decision; or

    • (b) in the case of a determination made under subsection 130.09(6), dismiss the appeal or allow the appeal and, subject to subsection 130.01(2) and regulations made under paragraph 130.19(b), substitute its own decision.

    The appeal panel shall inform the parties of its decision without delay and specify the period within which any amount determined by the appeal panel to be payable to the Transportation Appeal Tribunal of Canada is to be paid.

  • 2018, c. 27, s. 744
 

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