General Administrative Monetary Penalties Scheme

Marginal note:Commission of violation

72.001 Every contravention of a provision of this Act, other than section 17 or 69.2, and every contravention of a regulation or decision made by the Commission under this Act, other than a prohibition or a requirement of the Commission made under section 41, constitutes a violation and the person who commits the violation is liable

• (a) in the case of an individual, to an administrative monetary penalty not exceeding $25,000 and, for a subsequent contravention, a penalty not exceeding $50,000; or

• (b) in any other case, to an administrative monetary penalty not exceeding $10,000,000 and, for a subsequent contravention, a penalty not exceeding $15,000,000.

Marginal note:Criteria for penalty

• 72.002 (1) The amount of the penalty is to be determined by taking into account the following factors:

  • (a) the nature and scope of the violation;

  • (b) the history of compliance with this Act, the regulations or the decisions made by the Commission under this Act, by the person who committed the violation;

  • (c) any benefit that the person obtained from the commission of the violation;

  • (d) the person’s ability to pay the penalty;

  • (e) any factors established by any regulations; and

  • (f) any other relevant factor.

• Marginal note:Purpose of penalty

  (2) The purpose of the penalty is to promote compliance with this Act, the regulations or the decisions made by the Commission under this Act, and not to punish.

Marginal note:Procedures

72.003 Despite subsection 72.005(1), the Commission may impose a penalty in a decision in the course of a proceeding before it under this Act in which it finds that there has been a contravention of a provision, a regulation or a decision referred to in section 72.001.

Marginal note:Power of Commission — violation

72.004 The Commission may

• (a) designate a person, or class of persons, that is authorized to issue notices of violation or accept an undertaking; and

• (b) establish, in respect of each violation, a short-form description to be used in notices of violation.

Marginal note:Issuance and service

• 72.005 (1) A person who is designated to issue notices of violation and who believes, on reasonable grounds, that a person has committed a violation may issue, and shall cause to be served on the person, a notice of violation.

• Marginal note:Contents of notice

  (2) The notice of violation must name the person believed to have committed the violation, identify the violation and include

  • (a) the penalty that the person is liable to pay;

  • (b) a statement as to the right of the person, within 30 days after the day on which the notice is served, or within any longer period that the Commission specifies, to pay the penalty or to make representations with respect to the violation and the penalty, and the manner for doing so; and

  • (c) a statement indicating that if the person does not pay the penalty or make representations in accordance with the notice, the person will be deemed to have committed the violation and the penalty may be imposed.

Marginal note:Entry into undertaking

• 72.006 (1) A person may enter into an undertaking at any time.

• Marginal note:Contents

  (2) An undertaking

  • (a) must be accepted by a person who is authorized to accept an undertaking;

  • (b) must identify every act or omission that constitutes a contravention and that is covered by the undertaking;

  • (c) must identify every provision or decision at issue;

  • (d) may contain any conditions that the person who is authorized to accept an undertaking considers appropriate; and

  • (e) may include a requirement to pay a specified amount.

• Marginal note:Undertaking before notice of violation

  (3) If a person enters into an undertaking, no notice of violation may be served on them in connection with any act or omission referred to in the undertaking.

• Marginal note:Undertaking after notice of violation

  (4) If a person enters into an undertaking after a notice of violation is served on them, the proceeding that is commenced by the notice of violation is ended in respect of that person in connection with any act or omission referred to in the undertaking.

• Marginal note:Failure to respect undertaking

  (5) Failure to respect an undertaking constitutes a violation.

Marginal note:Payment

• 72.007 (1) If a person who is served with a notice of violation pays the penalty proposed in the notice, the person is deemed to have committed the violation and the proceedings in respect of it are ended.

• Marginal note:Representations to Commission

  (2) If a person who is served with a notice of violation makes representations in accordance with the notice, the Commission shall decide, on a balance of probabilities, after considering any other representations that it considers appropriate, whether the person committed the violation and, if it so decides, it may impose the penalty set out in the notice, a lesser penalty or no penalty.

• Marginal note:Failure to pay or make representations

  (3) If a person who is served with a notice of violation neither pays the penalty nor makes representations in accordance with the notice, the person is deemed to have committed the violation and the Commission may impose the penalty.

• Marginal note:Copy of decision and notice of rights

  (4) The Commission shall cause a copy of any decision made under subsection (2) or (3) to be issued and served on the person together with a notice of the person’s right to apply for a review under section 62 or for leave to appeal under section 64.

Marginal note:Officer, director or agent or mandatary of corporations

72.008 An officer, director or agent or mandatary of a corporation that commits a violation is liable for the violation if they directed, authorized, assented to, acquiesced in or participated in the commission of the violation, whether or not the corporation is proceeded against.

Marginal note:Debt due to Her Majesty

• 72.009 (1) The following amounts are debts due to Her Majesty in right of Canada that may be recovered in the Federal Court:

  • (a) the amount of the penalty imposed by the Commission in a decision in the course of a proceeding before it under this Act in which it finds that there has been a contravention of a provision, a regulation or a decision referred to in section 72.001;

  • (b) the amount payable under an undertaking entered into under subsection 72.006(1) beginning on the day specified in the undertaking or, if no day is specified, beginning on the day on which the undertaking is entered into;

  • (c) the amount of the penalty set out in a notice of violation, beginning on the day on which it is required to be paid in accordance with the notice, unless representations are made in accordance with the notice;

  • (d) if representations are made, either the amount of the penalty that is imposed by the Commission or on appeal, as the case may be, beginning on the day specified by the Commission or the court or, if no day is specified, beginning on the day on which the decision is made; and

  • (e) the amount of any reasonable expenses incurred in attempting to recover an amount referred to in any of paragraphs (a) to (d).

• Marginal note:Time limit or prescription

  (2) A proceeding to recover such a debt may not be commenced later than five years after the day on which the debt becomes payable.

• Marginal note:Receiver General

  (3) A penalty paid or recovered in relation to a violation is payable to the Receiver General.

• Marginal note:Certificate of default

  (4) The Commission may issue a certificate for the unpaid amount of any debt referred to in subsection (1).

• Marginal note:Registration in Federal Court

  (5) Registration in the Federal Court of a certificate made under subsection (4) 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:Time limit or prescription

• 72.0091 (1) A proceeding in respect of a violation may not be commenced later than three years after the day on which the subject-matter of the proceedings becomes known to the Commission.

• Marginal note:Certificate of secretary to Commission

  (2) A document appearing to have been issued by the secretary to the Commission, certifying the day on which the subject-matter of any proceedings became known to the Commission, is admissible in evidence without proof of the signature or official character of the person appearing to have signed the document and is, in the absence of evidence to the contrary, proof of the matter asserted in it.

Marginal note:Publication

72.0092 The Commission may make public

• (a) the name of a person who enters into an undertaking, the nature of the undertaking including the acts or omissions, the provisions or the decisions at issue, the conditions included in the undertaking and, if applicable, the amount of the penalty; and

• (b) the name of a person who committed the violation, the nature of the violation including the acts or omissions and provisions or decisions at issue and the amount of the penalty.

Marginal note:Regulations

72.0093 The Governor in Council may make regulations

• (a) exempting from the application of section 72.001 any provision of this Act or the regulations or any decision;

• (b) for the purpose of paragraph 72.002(1)(e), establishing other factors to be considered in determining the amount of the penalty; and

• (c) respecting undertakings entered into under subsection 72.006(1).

Administrative Monetary Penalties Scheme for Unsolicited Telecommunications

• Marginal note:Copy of decision and notice of rights

  (4) The Commission must cause a copy of any decision made under subsection (2) or (3) to be issued and served on the person together with a notice of the person’s right to apply for a review under section 62 or for leave to appeal under section 64.

Provisions Applicable to Both Administrative Monetary Penalties Schemes

Marginal note:Evidence

72.14 In a proceeding in respect of a violation, a notice purporting to be served under subsection 72.005(1) or 72.07(1) or a copy of a decision purporting to be served under subsection 72.007(4) or 72.08(4) is admissible in evidence without proof of the signature or official character of the person appearing to have signed it.

Marginal note:Defence

• 72.15 (1) It is a defence for a person in a proceeding in relation to a violation to establish that the person exercised due diligence to prevent the violation.

• Marginal note:Common law principles

  (2) Every rule and principle of the common law that makes 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:Vicarious liability — acts of employees, agents and mandataries

72.16 A person is liable for a violation that is committed by an employee of the person acting in the course of the employee’s employment, or by an agent or mandatary of the person acting within the scope of the agent’s or mandatary’s authority, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against.

Marginal note:How act or omission may be proceeded with

72.17 If an act or omission can be proceeded with either as a violation or as an offence, proceeding in one manner precludes proceeding in the other.

Marginal note:For greater certainty

72.18 For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply.

Marginal note:Section 12 does not apply

72.19 Section 12 does not apply in respect of any decision of the Commission made under subsection 72.007(2) or (3) or 72.08(2) or (3) or the portion of the decision made under section 72.003 relating to the finding of a contravention and the imposition of a penalty.