Pilotage Act · GlobalLawDB

Contents

1Short title#

This Act may be cited as the Pilotage Act.^note

1.1Definitions#

The definitions in this section apply in this Act.

Agency means the Canadian Transportation Agency. (Office)

apprentice pilot means an individual who is training to become a licensed pilot. (apprenti-pilote)

Authority means a Pilotage Authority established by section 3. (Administration)

authorized representative has the same meaning as in section 2 of the Canada Shipping Act, 2001. (représentant autorisé)

compulsory pilotage means, in respect of a ship, the requirement that the ship be under the conduct of a licensed pilot or a pilotage certificate holder. (pilotage obligatoire)

compulsory pilotage area means an area of water in which ships are subject to compulsory pilotage. (zone de pilotage obligatoire)

licence means a licence issued by the Minister under subsection 38.1(1). (brevet)

licensed pilot means an individual who holds a valid licence. (pilote breveté)

Minister means the Minister of Transport. (ministre)

person includes a partnership, an unincorporated organization, an association and a trust. (personne)

person in charge means, in respect of a ship, the owner, master or authorized representative of the ship, and any individual who is or appears to be in command, control or charge of the ship or who has management of the ship, but does not include a licensed pilot, while the pilot is exercising their powers or performing their duties or functions under this Act. (responsable)

pilot means any individual who does not belong to a ship and who has the conduct of it. (pilote)

pilotage certificate means a certificate issued by the Minister under subsection 38.1(2). (certificat de pilotage)

pilotage certificate holder means the holder of a valid pilotage certificate. (titulaire d’un certificat de pilotage)

pilotage charge means a charge referred to in subsection 33(1). (redevances de pilotage)

regular member of a ship’s complement means an individual who occupies a position on board a ship for the purpose of meeting the requirements of the Marine Personnel Regulations for safe manning in relation to a proper deck watch and the safe operation of the ship. (membre régulier de l’effectif du navire)

ship includes any description of vessel or boat used or designed for use in navigation, without regard to method or lack of propulsion. (navire)

Tribunal means the Transportation Appeal Tribunal of Canada established under subsection 2(1) of the Transportation Appeal Tribunal of Canada Act. (Tribunal)

^note

Purpose and Principles

2Purpose and principles#

The purpose of this Act is to set out a framework for the provision of pilotage services in accordance with the following principles:

(a)that pilotage services be provided in a manner that promotes and contributes to the safety of navigation, including the safety of the public and marine personnel, and that protects human health, property and the environment;

(b)that pilotage services be provided in an efficient and cost-effective manner;

(c)that risk management tools be used effectively and that evolving technologies be taken into consideration; and

(d)that an Authority’s pilotage charges be set at levels that allow the Authority to be financially self-sufficient.

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Pilotage Authorities

Establishment

3Pilotage Authorities established#

(1)Each Pilotage Authority named in the schedule is hereby established as a body corporate consisting of a Chairperson and not more than six other members.

(2)On the recommendation of the Minister and after consultation with members of the Authority and with the users of its services, the Governor in Council may appoint the Chairperson of an Authority to hold office during pleasure for the term that the Governor in Council considers appropriate.

(3)Each of the other members of an Authority shall be appointed by the Minister, with the approval of the Governor in Council, to hold office during pleasure for a term, not exceeding four years, that will ensure, as far as possible, the expiration in any one year of the terms of office of not more than one half of the members.

(3.1)The Chairperson and the Vice-Chairperson may be appointed to serve full-time or part-time.

(3.2)An individual who is engaged in the business of providing pilotage services — or who is employed by a person that is engaged in the business of providing pilotage services or that uses pilotage services — is not eligible to be the Chairperson or other member of an Authority.

(4)An Authority shall have its head office at the place named in respect of that Authority in the schedule.

^note

4Alteration#

The Governor in Council may, by order,

(a)extend the boundaries of any region set out in the schedule to include any Canadian waters not included in the schedule;

(b)change the name of an Authority;

(c)change the place of the head office of an Authority; and

(d)establish new Authorities and, in respect of any new Authority, prescribe the boundaries of its region and name the place at which the head office shall be situated and any new Authority shall be deemed to be an Authority established under subsection 3(1) and any such region shall be deemed to be a region set out in the schedule.

^note

5 #

[Repealed, 2019, c. 29, s. 229] (repealed)

6 to 8 #

[Repealed, 1998, c. 10, s. 146] (repealed)

9Not agent of Her Majesty#

An Authority is not an agent of Her Majesty.^note

Organization

10Vice-Chairperson#

The Governor in Council may appoint one of the members, other than the Chairperson, of an Authority to be Vice-Chairperson.^note

11Reappointment#

On the expiration of the term of office of a member of an Authority, the member is eligible for reappointment in the same or another capacity.^note

12Temporary substitute member#

If a member of any Authority is unable at any time to perform the duties of office of the member by reason of absence or incapacity, the Governor in Council may, on such terms and conditions as the Governor in Council may prescribe, appoint a temporary substitute member.^note

13Chairperson#

(1)Where the Chairperson of an Authority serves full-time, the Chairperson has the direction and control of the business of the Authority and may exercise such powers as may be conferred on the Chairperson by by-law of the Authority.

(1.1)Where the Chairperson of an Authority serves part-time, the board appoints a chief executive officer who has the direction and control of the business of the Authority and who may exercise such powers as may be conferred on the chief executive officer by by-law of the Authority.

(2)In the event of the absence or incapacity of the Chairperson of an Authority, or if the office of Chairperson is vacant, the Vice-Chairperson, if any, of the Authority shall act as Chairperson.

^note

14Remuneration#

(1)The Chairperson and Vice-Chairperson of an Authority shall be paid remuneration to be fixed by the Governor in Council.

(2)A member, other than the Chairperson or Vice-Chairperson, of an Authority shall be paid a daily allowance to be fixed by the Governor in Council for each day that the member is engaged on the business of the Authority.

(3)Each member of an Authority is entitled to be paid reasonable travel and other expenses incurred by the member while absent from their ordinary place of residence in the course of their duties under this Act.

15Employment of staff#

(1)Subject to subsection (2), an Authority may employ such officers and employees, including licensed pilots and apprentice pilots, as are necessary for the proper conduct of the work of the Authority.

(2)Where a majority of licensed pilots within the region, or any part thereof, set out in respect of an Authority in the schedule who form or are members or shareholders of a body corporate elect not to become employees of the Authority, the Authority may contract with that body corporate for the services of licensed pilots and the training of apprentice pilots in the region or part thereof where the contract is to be effective, and the Authority shall not employ pilots or apprentice pilots in the region or that part thereof where such a contract is in effect.

(3)Any body corporate that contracts, pursuant to subsection (2), with an Authority shall permit a licensed pilot or apprentice pilot in the region or part thereof to which the contract relates who is not a member or shareholder of that body corporate to become a member or shareholder on the same terms and conditions as the licensed pilots and apprentice pilots who formed or are members or shareholders of that body corporate.

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15.1Renewal of contract#

(1)Where a contract for services referred to in subsection 15(2) does not provide a mechanism for the resolution of disputes in the contract renewal process, fifty days before the contract expires, the parties to the contract shall jointly choose a mediator and an arbitrator and shall refer to the mediator all issues related to the renewal of the contract that remain unresolved.

(2)The Minister shall choose the mediator or arbitrator if the parties cannot agree on one or if the one they choose is unavailable.

(3)The mediator has thirty days in which to bring the parties to agreement on the outstanding issues, at the end of which time the parties to the contract shall refer all of the remaining outstanding issues to the arbitrator.

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15.2Final offers#

(1)The parties to the contract shall each submit a final offer in respect of the outstanding issues to each other and to the arbitrator within five days after the date on which those issues are referred to the arbitrator.

(2)The arbitrator shall consider, among other things, the principles set out in section 2 and, within 15 days, choose one or other of the final offers in its entirety.

(3)The final offer chosen by the arbitrator is final and binding and becomes part of the new contract for services that is effective on the day after the former contract expires.

(4)The parties to the contract shall share equally the cost of the fees of the mediator or arbitrator.

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15.3Continuation of services#

A body corporate with which an Authority has contracted for services under subsection 15(2) and the members and shareholders of the body corporate are prohibited from refusing to provide pilotage services while a contract for services is in effect or being negotiated.^note

15.4Content of contracts for service#

An Authority is not authorized to enter into or amend a contract for services referred to in subsection 15(2) that deals with a subject referred to in any of paragraphs 52(1)(a) to (o).^note

15.5Availability of contracts for service#

An Authority shall, on request, provide to any person a copy of any contract for services referred to in subsection 15(2) that the Authority has entered into.^note

15.6Contract pilots#

If an Authority requires the services of a licensed pilot in a compulsory pilotage area for which the Authority has no employees or for which a body corporate referred to in subsection 15(2) has not been established, the Authority may contract with one or more licensed pilots for the provision of those services.^note

16Authority a Public Service corporation#

(1)An Authority shall be deemed to be a Public Service corporation for the purposes of section 37 of the Public Service Superannuation Act.

(2)Officers and employees of an Authority shall be deemed to be persons employed in the federal public administration for the purposes of the Government Employees Compensation Act and any regulations made pursuant to section 9 of the Aeronautics Act.

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17By-laws#

(1)An Authority may make by-laws respecting the management of its internal affairs, including by-laws

(a)respecting the duties of its members, officers and employees;

(b)delegating to any person, either generally or with reference to any particular matter, all or any of

(i)the powers of the Chairperson of the Authority, and

(ii)the powers of the Authority, except the power to make a by-law; and

(c)respecting the management and control of its property.

(2)An Authority shall supply a copy of any by-law of the Authority to any interested person who requests a copy.

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Objects and Powers

18Objects#

In keeping with the principles set out in section 2, the objects of an Authority are to establish, operate, maintain and administer, in the interests of safety of navigation, an efficient pilotage service within the region set out in respect of the Authority in the schedule.^note

19Powers#

(1)An Authority may, for its use, purchase, lease or otherwise acquire

(a)land, buildings, wharves or other structures;

(b)pilot boats;

(c)radio and other communication equipment; and

(d)such other equipment, supplies and services as may be necessary for the operation of an efficient and economical pilotage service.

(2)An Authority may sell or lease any land, buildings, wharves, structures, pilot boats or equipment and supplies acquired pursuant to subsection (1).

^note

20 #

[Repealed, 2019, c. 29, s. 235] (repealed)

21 #

[Repealed, 2019, c. 29, s. 235] (repealed)

22 #

[Repealed, 2019, c. 29, s. 235] (repealed)

23 #

[Repealed, 2019, c. 29, s. 235] (repealed)

24 #

[Repealed, R.S., 1985, c. 31 (1st Supp.), s. 85] (repealed)

25 #

[Repealed, 2019, c. 29, s. 236] (repealed)

26 #

[Repealed, 2019, c. 29, s. 236] (repealed)

27 #

[Repealed, 2019, c. 29, s. 237] (repealed)

28 #

[Repealed, 2019, c. 29, s. 237] (repealed)

29 #

[Repealed, 2019, c. 29, s. 237] (repealed)

30 #

[Repealed, 2019, c. 29, s. 237] (repealed)

31 #

[Repealed, 2019, c. 29, s. 237] (repealed)

32 #

[Repealed, 2019, c. 29, s. 237] (repealed)

Charges

33Pilotage charges#

(1)An Authority may, by resolution, establish or revise charges to be paid to the Authority for services that the Authority provides or makes available in relation to compulsory pilotage, including charges for

(a)the services of a licensed pilot or apprentice pilot for a ship that is subject to compulsory pilotage;

(b)the use of a pilot boat or other conveyance;

(c)the use of communications equipment;

(d)travel and other expenses incurred by a licensed pilot or apprentice pilot that are directly associated with an assignment to pilot a ship;

(e)the carriage of a licensed pilot or apprentice pilot on a ship beyond the area for which the services of the pilot were engaged;

(f)the interruption or extension of a licensed pilot’s or apprentice pilot’s assignment on board a ship or otherwise; and

(g)the cancellation of a request for the services of a licensed pilot.

(2)An Authority may, by resolution, establish or revise charges to be paid to the Authority for services that the Authority provides or makes available — other than services related to compulsory pilotage — including advisory services and the use of simulators.

^note

33.1Outstanding and unpaid charges#

An Authority may charge interest on outstanding and unpaid charges.^note

33.2Charging principles#

(1)An Authority shall observe the following charging principles when establishing or revising pilotage charges:

(a)that pilotage charges be established and revised in accordance with an explicit methodology — that includes any conditions affecting the pilotage charges — that the Authority has established and published;

(b)that pilotage charges be structured in a way that does not encourage a user to engage in practices that diminish safety for the purpose of avoiding a charge;

(c)that pilotage charges be the same for Canadian users or ships and foreign users or ships;

(d)that pilotage charges be set at levels that allow the Authority to be financially self-sufficient and be fair and reasonable; and

(e)that pilotage charges not be set at levels that, based on reasonable and prudent projections, would generate revenues exceeding the Authority’s current and future financial requirements related to the provision of compulsory pilotage services.

(2)For the purposes of paragraph (1)(e), financial requirements include

(a)operations and maintenance costs;

(b)management and administration costs;

(c)debt servicing requirements and financial requirements arising out of contractual agreements relating to the borrowing of money;

(d)capital costs and depreciation costs on capital assets;

(e)financial requirements necessary for the Authority to maintain an appropriate credit rating;

(f)tax liability;

(g)payments to the Minister for the purpose of defraying the costs of the administration of this Act, including the development of regulations, and the enforcement of this Act;

(h)reasonable reserves for future expenditures and contingencies; and

(i)other costs determined in accordance with accounting principles recommended by the Chartered Professional Accountants of Canada or its successor or assign.

^note

33.3Notice of proposal#

(1)An Authority shall publish on its website a notice of any proposal to establish or revise a pilotage charge.

(2)The notice is to

(a)describe the proposal, including by setting out the Authority’s reasons for establishing or revising the pilotage charge and the circumstances in which the charge would apply;

(b)indicate that any person may make representations about the proposal to the Authority, in writing, on or before the date set out in the notice, which date is not to be earlier than 30 days after the day on which the notice is published;

(c)indicate that any person making written representations is to include a summary of those representations and that the summary may be made public by the Authority; and

(d)indicate that any person making written representations by the date set out in the notice will have an opportunity to file with the Agency a notice of objection related to the proposal.

(3)If, after publication of the notice and consideration of the written representations, the Authority elects to modify the proposal, other than by reducing the proposed amount of the pilotage charge, the Authority shall publish on its website a new notice with the content referred to in subsection (2), a description of the changes to the proposal and the reasons for them.

^note

33.4Announcement of decision#

(1)After considering all written representations referred to in paragraph 33.3(2)(b), the Authority shall publish on its website an announcement that sets out its decision in respect of the proposal.

(2)Unless the Authority decides to abandon the proposal, the announcement is to

(a)set out the reasons for the decision;

(b)describe the pilotage charge and the circumstances in which it will apply, including the date on which it will take effect, which date is not to be earlier than 60 days after the day on which the announcement is published;

(c)provide a summary of the written representations referred to in paragraph 33.3(2)(b) and of the Authority’s analysis of any issues and concerns brought to its attention in the representations, including how it considered these issues and concerns in its decision; and

(d)indicate that a person may file with the Agency a notice of objection related to the decision to establish or revise a pilotage charge, the grounds for filing a notice of objection and how to file it.

^note

34Notice of objection#

(1)A person may, within 90 days after the day on which the announcement referred to in section 33.4 is published, file with the Agency a notice of objection, in the form and manner determined by the Agency, related to the decision to establish or revise a pilotage charge.

(2)If the Authority establishes or revises a pilotage charge without publishing a notice referred to in section 33.3 or an announcement referred to in section 33.4, the notice of objection may be filed within 90 days after the day on which the new or revised pilotage charge comes into effect.

(3)A notice of objection may be filed only if

(a)the pilotage charge was not established or revised in accordance with the charging principles referred to in subsection 33.2(1); or

(b)the Authority did not comply with the requirements set out in section 33.3 or 33.4.

(4)A pilotage charge is not suspended or prevented from taking effect by reason of a notice of objection and, until the Agency disposes of the objections set out in the notice, the Agency shall not make an order suspending the pilotage charge or preventing it from taking effect.

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35Orders of Agency#

(1)If the Agency determines that an objection set out in a notice of objection under section 34 is well founded, it may order the Authority to

(a)cancel the establishment or revision of the pilotage charge in question;

(b)reinstate any pilotage charge that was in effect immediately before the pilotage charge in question took effect;

(c)refund to each user of compulsory pilotage services the amount they paid on account of the pilotage charge the establishment of which is cancelled under paragraph (a) or the amount they paid in excess of the pilotage charge reinstated under paragraph (b);

(d)in a case in which the Authority did not comply with the requirements set out in section 33.3 or 33.4, suspend the establishment or revision of the pilotage charge in question until the Authority has taken the measures set out in the order; or

(e)take any other appropriate measures.

(2)If under paragraph (1)(c) the Agency orders the Authority to make a refund to a user of compulsory pilotage services,

(a)the Agency shall allow the person who filed the notice of objection and the Authority to make representations to the Agency before fixing the period within which the refund is to be made; and

(b)the Authority may make the refund to the user by making a repayment or issuing a credit, but any remaining credit is to be repaid to the user within the period fixed by the Agency.

(3)If the Agency orders the Authority to make a refund to a user under paragraph (1)(c), the amount of the refund is to include interest at the interest rate charged by banks to their most credit-worthy borrowers for short-term business loans, as determined and published by the Bank of Canada for the month in which the order is made.

(4)The Agency shall provide the person who filed the notice of objection and the Authority with written reasons for any decision made under subsection (1) and, if applicable, any decision to fix the period within which the Authority is to make a refund to a user of compulsory pilotage services.

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Financial Provisions

36.01No appropriation#

No payment to an Authority may be made under an appropriation by Parliament to enable the Authority to discharge an obligation or liability. This section applies notwithstanding any authority given under any other Act, other than an authority given under the Emergencies Act or any other Act in respect of emergencies.^note

36Borrowing#

An Authority may, for the purpose of defraying its expenses, borrow money in Canada or elsewhere in an amount not more than the maximum fixed for the Authority by the Governor in Council.^note

37Power to invest#

An Authority may, with the approval of the Minister of Finance, invest any moneys not immediately required for the purposes of the Authority in any class of financial asset.^note

37.1Payment to Minister#

For the purpose of defraying the costs of the administration of this Act, including the development of regulations, and the enforcement of this Act, an Authority shall, on request, pay to the Minister an amount specified by the Minister in a time and manner specified by the Minister.^note

38Auditor#

The Auditor General of Canada is the auditor of each Authority.^note

Conduct of Ship Subject to Compulsory Pilotage

38.01Prohibition where pilotage compulsory#

(1)No individual shall have the conduct of a ship within a compulsory pilotage area unless they are a licensed pilot for that compulsory pilotage area or a regular member of the ship’s complement who is a pilotage certificate holder for that compulsory pilotage area.

(2)Subsection (1) does not apply if

(a)the master of the ship takes the conduct of it in accordance with subsection 38.02(1);

(b)the relevant Authority waives compulsory pilotage; or

(c)the ship is in Canadian waters that are contiguous with waters of the United States, the ship is under the conduct of an individual who is authorized to have the conduct of a ship by an appropriate authority of the United States and the conditions set out in the regulations are met.

(3)A licensed pilot or pilotage certificate holder who has the conduct of a ship is responsible to the master for the safe navigation of the ship.

(4)No licensed pilot or pilotage certificate holder shall have the conduct of a ship within a compulsory pilotage area or be on duty on board a ship under a regulation requiring a ship to have a licensed pilot or a pilotage certificate holder on board if

(a)they know of any physical or mental disability that prevents them from meeting the qualifications required for their licence or pilotage certificate;

(b)their ability is impaired by alcohol or a drug or from any other cause; or

(c)their licence or pilotage certificate is suspended.

(5)No licensed pilot or pilotage certificate holder shall, while on duty, consume alcohol or any drug that may impair the ability of that pilot or holder to have the conduct of the ship.

^note

38.02Power to take conduct of ship#

(1)If the master of a ship believes on reasonable grounds that the actions of a licensed pilot or a pilotage certificate holder on board a ship are, in any way, endangering the safety of the ship, the master may, in the interest of the safety of the ship, take the conduct of the ship in place of the licensed pilot or pilotage certificate holder or relieve the licensed pilot from duty on board ship.

(2)The master of a ship who takes the conduct of it in accordance with subsection (1) shall, within three days of taking the conduct of it, file a written report with the Minister that sets out the master’s reasons for doing so.

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Licences and Pilotage Certificates

38.1Issue of licence#

(1)The Minister shall issue a licence for a compulsory pilotage area to an individual who applies in writing if the Minister is satisfied that the applicant meets the qualifications provided for in the regulations.

(2)The Minister shall issue a pilotage certificate for a compulsory pilotage area to an individual who applies in writing if the Minister is satisfied that the applicant

(a)meets the qualifications provided for in the regulations; and

(b)has a degree of skill and local knowledge of the waters of the compulsory pilotage area that is similar to that required of an applicant for a licence for that compulsory pilotage area.

(3)To be eligible for a licence or pilotage certificate, the applicant shall be

(a)a Canadian citizen; or

(b)a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act who has not been ordinarily resident in Canada for six years or who has been ordinarily resident in Canada for six years or more and is shown, to the satisfaction of the Minister, not to have become a Canadian citizen as a result of circumstances beyond the control of the applicant.

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38.2Refusal to issue#

(1)The Minister may refuse to issue a licence or pilotage certificate if

(a)the applicant has acted fraudulently or improperly or has misrepresented a material fact;

(b)the Minister is of the opinion that the public interest and, in particular, the record of the applicant warrant it; or

(c)the applicant has not paid a fee for services related to the licence or pilotage certificate or has not paid a fine or penalty imposed on them under this Act.

(2)The Minister shall, immediately after refusing to issue a licence or pilotage certificate, give the applicant a notice confirming the refusal and setting out the grounds on which the Minister has refused to issue the licence or pilotage certificate.

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38.3Request for review#

(1)An applicant who receives a notice under subsection 38.2(2) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the decision.

(2)On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the applicant of the date, time and place in writing.

(3)The member of the Tribunal assigned to conduct the review shall provide the Minister and the applicant with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

(4)The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

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38.4Validity period#

(1)A licence or pilotage certificate is valid for the period specified by the Minister.

(2)No person other than the individual to whom it was issued shall possess a licence or pilotage certificate.

^note

38.5Production of licence or pilotage certificate#

Every licensed pilot or pilotage certificate holder shall produce their licence or pilotage certificate to the Minister on request.^note

38.6Lost licence or pilotage certificate#

The Minister may issue a replacement for a mislaid, lost or destroyed licence or pilotage certificate if the individual to whom it was issued applies in the form and manner specified by the Minister and provides the information and the documents specified by the Minister.^note

38.7Suspension, cancellation or refusal to renew#

(1)Subject to section 38.8, the Minister may suspend, cancel or refuse to renew a licence or pilotage certificate if the Minister is satisfied that

(a)the individual to whom it was issued no longer meets the qualifications provided for in the regulations for the issuance of the licence or pilotage certificate;

(b)in the case of a pilotage certificate, the individual to whom it was issued no longer has a degree of skill and local knowledge of the waters of the compulsory pilotage area that is similar to that required of an applicant for a licence for that compulsory pilotage area;

(c)a condition attached to the licence or pilotage certificate has been contravened;

(d)the licence or pilotage certificate was obtained by fraudulent or improper means or a misrepresentation of a material fact;

(e)the individual to whom it was issued has not paid a fine or penalty imposed on them under this Act;

(f)the individual to whom it was issued has contravened a provision of this Act or the regulations; or

(g)in the case of a refusal to renew,

(i)the applicant has not paid a fee for services related to the licence or pilotage certificate, or

(ii)the Minister is of the opinion that the public interest and, in particular, the record of the applicant warrant it.

(2)If a licence or pilotage certificate is suspended or cancelled, the individual to whom it was issued shall return it, as soon as possible, to the Minister.

^note

38.8Notice before decision#

The Minister shall, before suspending or cancelling a licence or pilotage certificate, give the individual to whom it was issued 30 days’ notice of the proposed suspension or cancellation. The notice is to set out the grounds on which the Minister proposes to suspend or cancel the licence or pilotage certificate.^note

38.81Exception#

(1)The Minister may suspend or cancel a licence or pilotage certificate without complying with section 38.8 if, on ex parte application by the Minister, the Tribunal determines that compliance with that section is not in the interest of public safety.

(2)The Minister’s application is to be heard by a member of the Tribunal, sitting alone, whose determination is to be made within 24 hours after the application is filed with the Tribunal.

(3)The Minister may, within 24 hours after the determination, appeal the determination to the Tribunal.

(4)The appeal panel of the Tribunal assigned to hear the appeal shall make a decision within 48 hours after the appeal is filed with the Tribunal.

^note

38.82Notice after decision#

Except if a notice is given under section 38.8, the Minister shall, immediately after suspending, cancelling or refusing to renew a licence or pilotage certificate, give the individual to whom it was issued a notice that confirms the suspension, cancellation or refusal and that sets out the grounds on which the Minister suspended, cancelled or refused to renew the licence or pilotage certificate.^note

38.83Request for review#

(1)Subject to subsection (2), the individual who is referred to in a notice under section 38.8 or 38.82 may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file a written request for a review of the decision referred to in the notice.

(2)The request is not to be filed with, or accepted by, the Tribunal if the grounds for suspending, cancelling or refusing to renew the licence or pilotage certificate are set out in paragraph 38.7(1)(e) or subparagraph 38.7(1)(g)(i).

(3)The filing of a request for a review in respect of a notice under section 38.8 operates as a stay of the proposed suspension or cancellation until the matter is finally disposed of in accordance with this section or section 38.84.

(4)On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the individual of the date, time and place in writing.

(5)The member of the Tribunal assigned to conduct the review shall provide the Minister and the individual with an opportunity consistent with procedural fairness and natural justice to present evidence and make representations.

(6)In a review of a decision made under paragraph 38.7(1)(f), the individual is not required, and is not to be compelled, to give any evidence or testimony in the matter.

(7)The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

^note

38.84Right of appeal#

(1)Both the Minister and the individual may appeal to the Tribunal a determination made under subsection 38.3(4) or 38.83(7). The time limit for making an appeal is 30 days after the determination.

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

(3)The appeal panel of the Tribunal that is assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.

^note

General

39Her Majesty or Authority not liable#

Her Majesty, or an Authority, is not liable for any damage or loss occasioned by the fault, neglect, want of skill or wilful and wrongful act of a licensed pilot or a pilotage certificate holder.^note

40Limitation of liability#

(1)A licensed pilot who meets the conditions of their licence is not liable in damages in excess of $1,000 for any damage or loss occasioned by their fault, neglect or want of skill.

(2)Where a body corporate contracts with an Authority pursuant to subsection 15(2) for the services of a licensed pilot, the body corporate is not liable in damages in excess of the amount of one thousand dollars for any damage or loss occasioned by the fault, neglect or want of skill of the pilot.

^note

41Liability of owner#

Nothing in this Act exempts the owner or master of any ship from liability for any damage or loss occasioned by the ship to any person or property on the ground that

(a)the ship was under the conduct of a licensed pilot; or

(b)the damage or loss was occasioned by the fault, neglect, want of skill or wilful and wrongful act of a licensed pilot.

^note

42Liability for pilotage charges#

The owner, master and agent of a ship are jointly and severally liable to pay any pilotage charges.^note

43Pilotage charges payable for leading#

If a ship in a compulsory pilotage area having on board a licensed pilot leads any ship subject to compulsory pilotage that does not have a licensed pilot or a pilotage certificate holder on board during any period in which the ship so led cannot, by reason of the circumstances existing at the time, be boarded, the ship so led is liable to the Authority for all pilotage charges as if a licensed pilot had been on board and piloted that ship.^note

44Pilotage charge — proceeding without pilot#

Unless the relevant Authority waives compulsory pilotage, a ship that is subject to compulsory pilotage and proceeds through a compulsory pilotage area while not under the conduct of a licensed pilot or a pilotage certificate holder is liable to that Authority for all pilotage charges as if the ship had been under the conduct of a licensed pilot.^note

45No clearance if pilotage charges unpaid#

No customs officer at any port in Canada shall grant a clearance to a ship if the officer is informed by an Authority that pilotage charges in respect of the ship are outstanding and unpaid.^note

45.1Canada Shipping Act, 2001 documents#

(1)The Minister may suspend, cancel or refuse to issue or renew any document — including a certificate, licence or permit — under the Canada Shipping Act, 2001, if the applicant or the holder of the document

(a)has contravened a direction given under subsection 46.12(3) or (4); or

(b)has not paid a fine or penalty imposed on them under this Act.

(2)If the applicant or the holder of the document referred to in subsection (1) is a corporation, the Minister may take the measures referred to in that subsection if a director, officer or agent or mandatary of the corporation

(a)has contravened a direction given under subsection 46.12(3) or (4); or

(b)has not paid a fine or penalty imposed on them under this Act.

^note

St. Lambert Lock

46Pilotage to and from St. Lambert Lock#

(1)Despite the boundaries of the regions set out in the schedule in respect of the Great Lakes Pilotage Authority and the Laurentian Pilotage Authority, and despite the boundaries of any compulsory pilotage area,

(a)a pilot licensed for a compulsory pilotage area that is in the region of the Great Lakes Pilotage Authority and that is specified in the regulations may pilot a ship from the wait wall north of St. Lambert Lock into that Lock;

(b)a pilot licensed for a compulsory pilotage area that is in the region of the Laurentian Pilotage Authority and that is specified in the regulations may pilot a ship from the wait wall south of St. Lambert Lock or from within that Lock into the region set out in respect of the Laurentian Pilotage Authority in the schedule; and

(c)a pilot licensed for a compulsory pilotage area that is in the region of the Laurentian Pilotage Authority and that is specified in the regulations may pilot a ship either directly or from the wait wall north of St. Lambert Lock into that Lock.

(2)The Governor in Council may make regulations prescribing procedures to ensure the equitable distribution, between the Great Lakes Pilotage Authority, and the Laurentian Pilotage Authority, of the revenue received for pilotage through St. Lambert Lock.

^note

Electronic Administration and Enforcement

46.01Powers#

(1)The Minister may administer and enforce this Act using electronic means.

(2)For greater certainty, any person or class of persons who are designated under section 46.1 as authorized persons may, in the exercise of their powers or the performance of their duties and functions, use the electronic means that are made available or specified by the Minister.

(3)For greater certainty, a person who has been authorized by the Minister to do anything that may be done by the Minister under this Act may do so using the electronic means that are made available or specified by the Minister.

(4)For greater certainty, an electronic system, including an automated system, may be used by the Minister to make a decision under this Act, and may be used by an authorized person to make a decision under this Act if the system is made available to the authorized person by the Minister.

^note

46.02Conditions for electronic version#

If this Act requires a signature to be provided, an application, request or decision to be made, notice to be given, information to be provided or a document to be submitted in its original form, the electronic version of the signature, application, request or decision, notice, information or document meets the requirement if

(a)the electronic version is provided by the electronic means, including an electronic system, that are made available or specified by the Minister; and

(b)any other requirements that may be provided for in the regulations have been met.

^note

46.03Regulations#

(1)The Governor in Council may make regulations respecting the application of section 46.01 and paragraph 46.02(b), including regulations respecting

(a)the technology or format to be used, or the standards, specifications or processes to be followed, including for the making or verifying of an electronic signature and the manner in which it is to be used; and

(b)the date and time when, and the place where, an electronic version of an application, request, decision, document, notice or any information is deemed to be sent or received.

(2)The regulations may require a person or ship that makes an application or request, gives notice, submits any document or provides information under this Act to do so using electronic means, including an electronic system. The regulations may also include provisions respecting those means, including that system, respecting the circumstances in which that application or request may be made, the notice may be given, the document may be submitted or the information may be provided by other means, and respecting those other means.

(3)The regulations may prescribe the circumstances in which the Minister may require a person or ship that makes an application or request, gives notice, submits any document or provides information under this Act to do so using any means that are specified by the Minister.

(4)The regulations may

(a)require that payments that are to be made or evidence of payment that are to be provided under this Act are to be made or provided by means of an electronic system;

(b)include provisions respecting such a system, respecting the circumstances in which those payments may be made or evidence of payments may be provided by other means, and respecting those other means; and

(c)include provisions respecting the date and time when, and the place where, an electronic payment or evidence of payment is deemed to be sent or received.

^note

Enforcement

Designation of Authorized Persons

46.1Designation by Minister#

The Minister may designate persons or classes of persons as authorized persons for the purposes of the administration and enforcement of this Act and may limit in any manner that he or she considers appropriate the powers that the authorized persons may exercise under this Act.^note

46.11Certificate of designation#

The Minister shall provide every authorized person with a certificate of their designation and, if the authorized person’s powers are limited under section 46.1, the certificate is to specify the powers that the authorized person may exercise.^note

Compliance Measures

46.12Authority to enter#

(1)An authorized person may, for a purpose related to verifying compliance or preventing non-compliance with this Act, enter a place, including a ship, in which the authorized person has reasonable grounds to believe that

(a)there is anything to which this Act applies;

(b)there has been carried on, is being carried on or is likely to be carried on any activity in respect of which this Act applies; or

(c)there is any book, record, electronic data or other document relating to the application of this Act.

(2)The authorized person may, for that purpose,

(a)examine the place and anything in the place;

(b)use any means of communication or cause it to be used;

(c)use any computer system or data processing system, or cause it to be used, to examine data contained in or available to it;

(d)prepare or cause to be prepared any document, in the form of a printout or other intelligible output, from the data;

(e)direct any person to produce for inspection, or for the purposes of making copies or taking extracts, any document;

(f)use any copying equipment or cause it to be used;

(g)conduct tests or analyses;

(h)take measurements or samples;

(i)take photographs or make recordings or sketches;

(j)remove anything for the purposes of examination, testing or copying;

(k)direct any person to put anything into operation or to cease operating it;

(l)prohibit or limit access to all or part of the place or to anything in the place; and

(m)direct any person to establish their identity to the authorized person’s satisfaction.

(3)An authorized person may, for a purpose related to verifying compliance or preventing non-compliance with this Act,

(a)direct any person to provide any information; and

(b)direct a ship, if it is about to enter or is within Canadian waters, to provide any information.

(4)If an authorized person has reasonable grounds to believe that an offence under this Act has been committed, they may direct a ship that is about to enter or is within Canadian waters

(a)to stop;

(b)to proceed through those waters, or to proceed to the place within those waters that they may specify, by the route and in the manner that they may specify, and to moor, anchor or remain there for any reasonable period that they may specify;

(c)to proceed out of those waters by the route and in the manner that they may specify; or

(d)to remain outside those waters.

^note

46.13Dwelling house or living quarters#

(1)An authorized person shall not enter a dwelling house or living quarters under subsection 46.12(1) without the consent of the occupant except under the authority of a warrant issued under subsection (2), unless the authorized person has reasonable grounds to believe that the dwelling house or living quarters are not being lived in.

(2)On ex parte application, a justice of the peace may issue a warrant authorizing an authorized person to enter a dwelling house or living quarters, subject to any conditions that may be specified in the warrant, if the justice is satisfied by information on oath that

(a)the dwelling house or living quarters are a place referred to in subsection 46.12(1);

(b)entry to the dwelling house or living quarters is necessary for a purpose related to verifying compliance or preventing non-compliance with this Act; and

(c)entry was refused by the occupant or there are reasonable grounds to believe that entry will be refused by, or that consent to entry cannot be obtained from, the occupant.

(3)In executing a warrant to enter a dwelling house or living quarters, an authorized person may use force only if the use of force has been specifically authorized in the warrant and they are accompanied by a peace officer.

(4)An application for a warrant under subsection (2) may be submitted, and the warrant may be issued, by a means of telecommunication and section 487.1 of the Criminal Code applies for those purposes with any necessary modifications.

^note

46.14Disposition of sample#

(1)An authorized person who takes a sample under paragraph 46.12(2)(h) may dispose of it in any manner that they consider appropriate or may submit it for analysis or examination to any person the Minister considers appropriate.

(2)A person that has made an analysis or examination under subsection (1) may issue a certificate or report that sets out the results of the analysis or examination.

(3)Subject to subsections (4) and (5), the certificate or report is admissible in evidence in any proceeding related to a contravention of this Act and, in the absence of any evidence to the contrary, is proof of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.

(4)The party against which the certificate or report is produced may, with leave of the court or of the Tribunal, require for the purposes of cross-examination the attendance of the person that issued it.

(5)The certificate or report may be admitted in evidence only if the party that intends to produce it has given to the party against which it is intended to be produced reasonable notice of that intention, together with a copy of the certificate or report.

^note

46.15Return of anything removed#

(1)Anything removed under paragraph 46.12(2)(j) is to be returned as soon as feasible after it is no longer required for the purpose for which it was taken unless

(a)the thing, in the authorized person’s opinion, is no longer useful; or

(b)the owner is unknown or cannot be located.

(2)An authorized person may dispose of anything that is not returned under subsection (1) in the manner that they consider appropriate, and any proceeds realized from the disposition are to be paid to the Receiver General.

^note

46.16Interference#

Unless authorized by an authorized person, it is prohibited for a person to knowingly move, alter or interfere in any way with a sample taken under paragraph 46.12(2)(h) or anything removed under paragraph 46.12(2)(j).^note

46.17Seizure#

For the purpose referred to in subsection 46.12(1), an authorized person may seize and detain anything

(a)by means of which or in relation to which they have reasonable grounds to believe that any provision of this Act or of the regulations has been contravened; or

(b)that they have reasonable grounds to believe will afford evidence in respect of a contravention of any provision of this Act or of the regulations.

^note

46.18Custody of thing seized#

If an authorized person seizes a thing, the authorized person, or any person that they may designate, shall retain custody of the thing, subject to any order made under section 490 of the Criminal Code.^note

46.19Liability for costs and expenses#

If there is more than one owner of a thing seized or forfeited under this Act, the owners are jointly and severally, or solidarily, liable for the amount due or payable in respect of the costs and expenses resulting from the seizure, forfeiture or disposition of the thing in excess of any proceeds of disposition of the thing that have been forfeited to Her Majesty in right of Canada under this Act.^note

46.2Detention order#

(1)An authorized person may order the detention of a ship if the authorized person has reasonable grounds to believe that an offence under this Act has been committed by or in respect of the ship.

(2)The detention order is to be in writing and be addressed to every person empowered to grant clearance to the ship.

(3)Subject to subsection (4), notice of a detention order is to be served

(a)by delivering a copy of the notice to the authorized representative of the ship or, in the absence of an authorized representative, a person in charge of the ship; or

(b)if service cannot reasonably be effected in the manner provided in paragraph (a), by posting a copy of the notice on any conspicuous part of the ship.

(4)If service cannot reasonably be effected in the manner provided in paragraph (3)(a) or (b), public notice of the detention order is to be given.

(5)The notice is to indicate

(a)the measures that are to be taken for the detention order to be rescinded; and

(b)the amount and form of any security that is to be deposited with the Minister.

(6)If the ship that is subject to a detention order is registered in a foreign state, that state is to be notified that the order was made.

(7)Subject to subsection 46.22(1), it is prohibited for a person to move a ship that is subject to a detention order.

(8)It is prohibited for a person to which a detention order is addressed, after they have received notice of the order, to grant clearance to the ship that is subject to the order, unless they have been notified that the order has been rescinded.

(9)An authorized person may rescind a detention order if, in their opinion, it would be in the public interest to do so. However, an authorized person shall rescind a detention order if they are satisfied that the measures indicated in the notice referred to in subsection (5) have been taken and, if applicable, security in the amount and form indicated in the notice has been deposited with the Minister.

(10)An authorized person who rescinds a detention order shall notify, in the form and manner specified by the Minister, the persons referred to in subsection (2) and the persons on which the notice was served under paragraph (3)(a) of the rescission.

(11)The authorized representative of a ship that is subject to a detention order or, in the absence of an authorized representative, the owner of that ship is liable for all costs and expenses resulting from the detention.

(12)If, in the Minister’s opinion, the matter has been resolved, the Minister

(a)may apply the security to reimburse Her Majesty in right of Canada, in whole or in part, for any of the costs and expenses resulting from the detention of the ship or to pay to Her Majesty in right of Canada, in whole or in part, any fine or penalty imposed under this Act; and

(b)shall return the security, or any part of it that remains if it is applied under paragraph (a), if all costs and expenses and any fine or penalty imposed under this Act have been paid.

^note

46.21Interference with service of notice#

It is prohibited for a person to knowingly interfere with the service of a notice of a detention order.^note

46.22Permission or direction to move ship#

(1)The Minister may, in respect of a ship that is subject to a detention order,

(a)on application made by the authorized representative of the ship or, in the absence of an authorized representative, the person in charge of the ship, permit the ship to be moved in accordance with the Minister’s directions; and

(b)on application made by the owner of a dock — or by the person in charge of a place — at which the detained ship is situated, direct the authorized representative or person in charge of the ship to move it in accordance with the Minister’s directions.

(2)If a person does not comply with a direction given to them under paragraph (1)(b) 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, the Minister may authorize the applicant to move the ship in accordance with the Minister’s directions and at the expense of the authorized representative or, in the absence of an authorized representative, the owner.

^note

Provisions Related to Entry

46.23Accompanying person#

(1)If an authorized person enters a place under subsection 46.12(1), they may be accompanied by any other person whom they believe is necessary to help them in the exercise of their powers or the performance of their duties or functions under this Act.

(2)An authorized person and a person accompanying them may enter private property – other than a dwelling house or living quarters – and pass through it, including with vehicles and equipment, in order to gain entry to the place referred to in subsection 46.12(1).

^note

46.24Duty to assist#

The owner of a place that is entered by an authorized person under subsection 46.12(1), the person in charge of the place and every person in it shall give all assistance to the authorized person that is reasonably required to enable the authorized person to exercise their powers or perform their duties or functions under this Act and shall provide the authorized person with any document or information, or access to any data, that they may reasonably require.^note

Obstruction

46.25Obstruction#

It is prohibited for a person to knowingly give false or misleading information either orally or in writing to, or otherwise knowingly obstruct or hinder, an authorized person who is exercising powers or performing duties or functions under this Act.^note

Administrative Monetary Penalties

46.26Violation — person#

(1)Every person that contravenes a provision or direction that is designated as a violation in the regulations commits a violation and is liable to a penalty.

(2)Every ship that contravenes any of the following commits a violation and is liable to a penalty:

(a)a direction given under paragraph 46.12(3)(b) or subsection 46.12(4); or

(b)a provision the contravention of which is designated as a violation by the regulations.

(3)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.

(4)The maximum amount payable as the penalty for a violation set out in subsection (1) or (2) is $250,000 and the total maximum amount payable for a related series or class of violations is the amount set out in the regulations.

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

(6)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.

(7)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.

(8)A person is not to be found to be liable for a violation under this Act if they establish that they exercised due diligence to prevent its commission.

(9)A ship is not to be found to be liable for a violation under this Act if the person that committed the act or omission that constitutes the violation establishes that they exercised due diligence to prevent its commission.

^note

46.27Assurance of compliance or notice of violation#

(1)If the Minister has reasonable grounds to believe that a person or ship has committed a violation, the Minister may

(a)enter into an assurance of compliance with the person or ship that

(i)identifies the violation and provides that the person or ship will comply with the provision to which the violation relates within the period, and be subject to the 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 amount of the penalty that the person or ship 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 or ship, a notice of violation that names the person or ship, identifies the violation and sets out

(i)the amount of the penalty that the person or ship 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 place at which, the penalty is to be paid or a review is to be requested.

(2)The Minister may extend the period specified under subparagraph (1)(a)(i) if the Minister is satisfied that the person or ship is unable to comply with the assurance of compliance for reasons beyond the person’s or ship’s control.

(3)The Minister may establish, in respect of each violation, a short-form description to be used in notices of violation.

^note

46.28Deemed violation#

(1)A person or ship that enters into an assurance of compliance under paragraph 46.27(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.

(2)A person or ship that 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 46.3(1), file a request with the Tribunal for a review of the facts of the violation, in which case the assurance is deemed to be a notice of violation and a review under paragraph 46.33(1)(b) of the facts of the violation and of the amount of the penalty is deemed to have been requested.

^note

46.29When assurance of compliance complied with#

If the Minister is of the opinion that a person or ship that has entered into an assurance of compliance under paragraph 46.27(1)(a) has complied with it, he or she shall cause a notice to that effect to be served on the person or ship and, on the service of the notice,

(a)no further proceedings may be taken against the person or ship with respect to the violation in respect of which the assurance was entered into; and

(b)any security deposited under subparagraph 46.27(1)(a)(ii) is to be returned to the person or ship.

^note

46.3When assurance of compliance not complied with#

(1)If the Minister is of the opinion that a person or ship that has entered into an assurance of compliance under paragraph 46.27(1)(a) has not complied with it, the Minister may cause a notice of default to be served on the person or ship to the effect that, unless a member determines under section 46.31, or an appeal panel decides under section 46.34, that the assurance has been complied with,

(a)the person or ship is liable to pay double the amount of the penalty set out in the assurance; or

(b)the security deposited under subparagraph 46.27(1)(a)(ii) is forfeited to Her Majesty in right of Canada.

(2)The notice of default is to include the place 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.

(3)On the service of a notice of default, the person or ship served has no right of set-off or compensation against any amount spent by the person or ship under the assurance of compliance.

^note

46.31Request for review#

(1)A person or ship served with a notice under subsection 46.3(1) may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the Minister’s decision made under that subsection.

(2)On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

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

(4)The burden is on the Minister to establish that the person or ship did not comply with the assurance of compliance referred to in the notice. The person is not required, and is not to be compelled, to give any evidence or testimony in the matter.

(5)Despite subsections 46.26(8) and (9), a person or ship does not have a defence by reason that the person or ship exercised due diligence to comply with the assurance of compliance.

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

^note

46.32Return of security#

Any security deposited under subparagraph 46.27(1)(a)(ii) is to be returned to the person or ship if

(a)a notice is served under subsection 46.3(1) and the person or ship pays double the amount of the penalty set out in the assurance of compliance; or

(b)a member determines under subsection 46.31(6), or an appeal panel decides under subsection 46.34(3), that the assurance has been complied with.

^note

46.33Notice of violation — option#

(1)A person or ship served with a notice of violation under paragraph 46.27(1)(b) may

(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 Tribunal 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.

(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 or ship is considered to have committed the violation in respect of which the notice is served and proceedings in respect of the violation are ended.

(3)On receipt of a request filed under paragraph (1)(b), the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

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

(5)The burden is on the Minister to establish that the person or ship committed the violation referred to in the notice. The person is not required, and is not to be compelled, to give any evidence or testimony in the matter.

(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 or ship

(a)that the person or ship has not committed a violation, in which case, subject to section 46.34, no further proceedings under this Act are to be taken against the person or ship in respect of the alleged violation; and

(b)that the person or ship has committed a violation, in which case, subject to subsections 46.26(4) and (5) and the regulations, the member shall inform the Minister and the person or ship of the amount determined by the member to be payable to the Tribunal by or on behalf of the person or ship and the period within which it is to be paid.

^note

46.34Right of appeal#

(1)The Minister or the person or ship that requested the review may, within 30 days after the day on which a determination is made under subsection 46.31(6) or 46.33(6), appeal the determination to the Tribunal.

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

(3)At the conclusion of the review, the appeal panel of the Tribunal that is assigned to hear the appeal may

(a)in the case of a determination made under subsection 46.31(6), dismiss the appeal, or allow the appeal and substitute its own decision; or

(b)in the case of a determination made under subsection 46.33(6), dismiss the appeal, or allow the appeal and, subject to subsections 46.26(4) and (5) and the regulations, substitute its own decision.

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

^note

Recovery of Debts

46.35Debts due to Her Majesty#

(1)The following amounts constitute debts due to Her Majesty in right of Canada that may be recovered in the Federal Court or any other court of competent jurisdiction:

(a)the amount of a penalty set out in a notice of violation referred to in paragraph 46.27(1)(b), from the expiry of the period specified in the notice for the payment of that amount, unless a review is requested under subsection 46.33(1);

(b)the amount of a penalty set out in a notice of default referred to in subsection 46.3(1), from the date the notice is served, unless a review is requested under subsection 46.31(1);

(c)the amount of a penalty determined by a member under section 46.33, or decided by an appeal panel under section 46.34, from the expiry of the period specified in the decision for the payment of that amount; and

(d)the amount of any costs and expenses referred to in subsection (3).

(2)Proceedings to recover a debt referred to in subsection (1) may be commenced no later than five years after the day on which the debt becomes payable.

(3)A person or ship that is liable to pay an amount referred to in paragraph (1)(a), (b) or (c) is also liable for the amount of any costs and expenses incurred in attempting to recover that amount.

^note

46.36Certificate of default#

(1)All or part of a debt referred to in subsection 46.35(1) in respect of which there is a default of payment may be certified by the Minister or the Tribunal, as the case may be.

(2)On production to the Federal Court, a certificate made under subsection (1) is to be registered in that Court and, when registered, has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment obtained in that Court for a debt of the amount specified in it and all costs and expenses attendant on its registration.

^note

General

46.37Manner of service#

(1)A notice referred to in any of sections 46.27, 46.29, 46.3 and 46.45 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 fax or other electronic means to the individual’s last known address or usual place of residence;

(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 fax or other 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; and

(c)in the case of a ship,

(i)by delivering a copy of it personally to the master or another individual who is, or appears to be, in charge of the ship,

(ii)by posting a copy of it on any conspicuous part of the ship,

(iii)by leaving a copy of it with the owner or operator of the ship, with the owner’s or operator’s representative or with an officer or other individual who appears to control or manage the owner’s, operator’s or representative’s head office or place of business, or

(iv)by sending a copy of it by registered mail, courier or fax or other electronic means to the ship or to a person referred to in subparagraph (i) or (iii) or to their head office or place of business.

(2)Service may be proved by

(a)an acknowledgement of service signed by the person served or on behalf of the person or ship 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 or ship 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.

(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 fax or other electronic means, on the day on which it is sent, as indicated on the record of transmission.

^note

46.38Proof of violation by ship#

It is sufficient proof that a ship has committed a violation to establish that the act or omission that constitutes the violation was committed by a person in charge of the ship, whether or not the person has been identified.^note

46.39Party to violation committed by ship#

(1)If a ship commits a violation under this Act and a person in charge of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the violation, that person is a party to and liable for the violation, whether or not the ship has been proceeded against under sections 46.27 to 46.36.

(2)If a corporation commits a violation under this Act, 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 and liable for the violation, whether or not the corporation has been identified or proceeded against under sections 46.27 to 46.36.

^note

46.4Violation by employee or agent or mandatary#

A person is liable for a violation that is committed by the person’s employee or agent or mandatary, whether or not the employee or agent or mandatary who actually committed the violation is identified or proceeded against under this Act.^note

46.41Direction to ship#

For the purposes of a proceeding against a ship for a violation in respect of a contravention of a direction given under this Act, a direction is deemed to have been given to the ship if

(a)it is given to the authorized representative or a person in charge of the ship; or

(b)in the case of a direction that cannot be given to any person referred to in paragraph (a) despite reasonable efforts having been made to do so, a copy of it is posted on any conspicuous part of the ship.

^note

46.42Limitation or prescription period#

A notice of violation may be issued no later than two years after the day on which an authorized person becomes aware of the violation.^note

46.43Certificate#

A document that purports to have been issued by an authorized person and that certifies the day on which they became aware of a violation is admissible in evidence without proof of the signature or official character of the person appearing to have signed it and, in the absence of any evidence to the contrary, is evidence that the authorized person became aware of the violation on that day.^note

Public Record

46.44Disclosure of notices of violation and default#

The Minister shall keep a public record of notices of violation and notices of default, including, with respect to each violation or default, the nature of the violation or default, the name of the person or ship that committed it and the amount of the penalty.^note

46.45Notations removed#

(1)Unless the Minister is of the opinion that it is not in the public interest to do so, on the fifth anniversary of the day on which a person or ship has paid every penalty that the person or ship is liable to pay under this Act, the Minister shall remove a notice of violation or notice of default from the public record of notices of violation or default along with all the other information kept in the public record with respect to the violation or default.

(2)If the Minister is of the opinion that removal of a notation is not in the public interest, he or she shall give notice of that fact to the person or ship in writing, and provide the grounds for that opinion.

(3)The notice is to include the place 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.

(4)The person or ship may, on or before the date specified in the notice or within any further time that the Tribunal on application allows, file with the Tribunal a written request for a review of the Minister’s decision made under subsection (2).

(5)On receipt of the request, the Tribunal shall appoint a date, time and place for the review and shall notify the Minister and the person or ship that filed the request of the date, time and place in writing.

(6)The member of the Tribunal assigned to conduct the review shall provide the Minister and the person or ship with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations.

(7)The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration.

(8)The person or ship that requested the review may, within 30 days after the day on which a determination is made under subsection (7), appeal the determination to the Tribunal.

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

(10)The appeal panel of the Tribunal that is assigned to hear the appeal may dismiss the appeal or refer the matter back to the Minister for reconsideration.

^note

Regulations

46.46Regulations#

The Governor in Council may make regulations

(a)designating as a violation the contravention of

(i)any specified provision of this Act or of the regulations, or

(ii)any direction given under any specified provision of this Act;

(b)establishing a penalty, or a range of penalties, in respect of a violation, up to the maximum amount set out in subsection 46.26(4);

(c)if a range of penalties is established by regulations made under paragraph (b), respecting the method of determining the amount payable as the penalty for the violation, including the criteria to be taken into account;

(d)setting out the total maximum amount payable for a related series or class of violations;

(e)respecting the circumstances under which, the criteria by which and the manner in which the amount of a penalty may be reduced in whole or in part; and

(f)respecting persons that may request a review on behalf of a ship in relation to an alleged violation by the ship.

^note

Offences and Punishment

47Proceeding without a pilot — persons#

(1)The owner, master or person in charge of a ship commits an offence if the ship is subject to compulsory pilotage and proceeds through a compulsory pilotage area without being under the conduct of a licensed pilot for that compulsory pilotage area or a regular member of the ship’s complement who is a pilotage certificate holder for that compulsory pilotage area.

(2)A ship commits an offence if it is subject to compulsory pilotage and proceeds through a compulsory pilotage area without being under the conduct of a licensed pilot for that compulsory pilotage area or a regular member of the ship’s complement who is a pilotage certificate holder for that compulsory pilotage area.

(3)Subsections (1) and (2) do not apply if

(a)the master of the ship takes the conduct of it in accordance with subsection 38.02(1);

(b)the relevant Authority waives compulsory pilotage; or

(4)Every individual who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or to both.

(5)Every person, other than an individual, that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $1,000,000.

(6)Every ship that commits an offence under subsection (2) is liable on summary conviction to a fine of not more than $1,000,000.

^note

48Offence — persons#

(1)Every person commits an offence that contravenes

(a)a provision of this Act, other than section 15.3 or subsection 47(1);

(b)a provision of the regulations;

(c)a direction under subsection 46.12(2) or (3);

(d)a direction under subsection 46.22(1); or

(e)a direction under section 52.3.

(2)Every individual who commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $500,000 or to imprisonment for a term of not more than 12 months, or to both.

(3)Every person, other than an individual, that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $500,000.

^note

48.1Contravention of section 15.3#

A person that contravenes section 15.3 commits an offence and is liable on summary conviction to a fine of not more than $10,000 for each day on which the offence is committed or continued but is not liable to imprisonment.^note

48.11Offence — ships#

(1)Every ship commits an offence that contravenes

(a)subsection 52.1(2) or 52.2(5);

(b)a provision of the regulations; or

(c)a direction given under paragraph 46.12(3)(b) or subsection 46.12(4).

(2)Every ship that commits an offence under subsection (1) is liable on summary conviction to a fine of not more than $500,000.

^note

48.2Continuing offences#

An offence under section 48 or 48.11 that is committed or continued on more than one day constitutes a separate offence for each day on which it is committed or continued.^note

48.3Court order#

If a person is convicted of an offence under this Act, in addition to any other punishment that may be imposed under this Act, the court may, having regard to the nature of the offence and the circumstances surrounding its commission, make an order having any or all of the following effects:

(a)prohibiting the person from performing any act or engaging in any activity that may, in the opinion of the court, result in the continuation or repetition of the offence;

(b)directing the person to take any action the court considers appropriate to remedy or avoid any harm that results or may result from the commission of the offence;

(c)prohibiting the person from exercising the rights or privileges of a licence, pilotage certificate, waiver or exemption order under this Act for the period or at the times and places that may be specified in the order; and

(d)prohibiting the person from operating a ship or providing services essential to the operation of a ship for the period or at the times and places that may be specified in the order.

^note

48.4Service on ship#

(1)If a ship is charged with an offence under this Act, the summons is to be served

(a)by delivering it to the authorized representative of the ship or, in the absence of an authorized representative, a person in charge of the ship; or

(b)if service cannot reasonably be effected in the manner provided in paragraph (a), by posting the summons on any conspicuous part of the ship.

(2)If a ship is charged with an offence under this Act, the ship may appear by counsel or representative before the court. Despite the Criminal Code, if the ship does not so appear, a court may, on proof of service of the summons, proceed to hold the trial.

^note

48.5Proof of offence by ship#

In a prosecution of a ship for an offence under this Act, it is sufficient proof that the ship has committed the offence to establish that the act or omission that constitutes the offence was committed by a person in charge of the ship, whether or not the person has been identified.^note

48.6Party to offence committed by ship#

(1)If a ship commits an offence under this Act and a person in charge of the ship directed, authorized, assented to, acquiesced in or participated in the commission of the offence, that person is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the ship has been prosecuted or convicted.

(2)If a corporation commits an offence under this Act, any director, officer or agent or mandatary of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the corporation has been prosecuted or convicted.

^note

48.7Offence by employee or agent or mandatary#

A person is liable for an offence that is committed by the person’s employee or their agent or mandatary, whether or not the employee or agent or mandatary who actually committed the offence is identified or prosecuted for the offence under this Act.^note

48.8Direction to ship#

For the purposes of prosecuting a ship for contravening a direction given under this Act, a direction is deemed to have been given to the ship if

(a)it is given to the authorized representative or a person in charge of the ship; or

^note

49Due diligence defence — persons#

(1)A person is not to be found guilty of an offence under this Act, other than in relation to a contravention of section 46.16, 46.21 or 46.25, if they establish that they exercised due diligence to prevent its commission.

(2)A ship is not to be found guilty of an offence under this Act if the person that committed the act or omission that constitutes the offence establishes that they exercised due diligence to prevent its commission.

^note

50Limitation or prescription period#

(1)Proceedings by way of summary conviction under this Act may be instituted no later than two years after the day on which the Minister becomes aware of the subject matter of the proceedings.

(2)A document that purports to have been issued by the Minister and that certifies the day on which that Minister became aware of the subject matter of the proceedings is admissible in evidence without proof of the signature or official character of the individual appearing to have signed the document and is evidence that the Minister became aware of the subject matter on that day.

(3)If the proceedings cannot be commenced because the proposed defendant is outside Canada, the proceedings may be commenced no later than 60 days after the defendant arrives in Canada.

^note

51Jurisdiction in relation to offences#

If a person or ship is charged with an offence under this Act, any court in Canada that would have had cognizance of the offence if it had been committed by a person or ship within the limits of its ordinary jurisdiction has jurisdiction to try the offence as if it had been committed there.^note

51.1Reporting of alleged contravention#

(1)An individual who has reasonable grounds to believe that a person or ship has contravened or intends to contravene a provision of this Act or the regulations or a direction under this Act may notify the Minister of the particulars of the matter and may request that their identity be kept confidential with respect to the notification.

(2)The identity of an individual to whom the Minister has provided an assurance of confidentiality may be disclosed by the Minister only in accordance with the Privacy Act.

^note

Regulations, Exemption Orders, Interim Orders and Directions

52Regulations#

(1)The Governor in Council may make regulations respecting the provision of pilotage services, including regulations

(a)establishing compulsory pilotage areas;

(b)respecting which ships or classes of ships are subject to compulsory pilotage;

(c)respecting waivers of compulsory pilotage;

(d)respecting master-pilot exchanges;

(e)respecting the classes of licences and classes of pilotage certificates that are to be issued as well as the form and manner of their issuance;

(f)respecting the qualifications that are required of an applicant for a licence or pilotage certificate, or any class of licence or pilotage certificate, for a compulsory pilotage area, including the applicant’s physical and mental fitness, degree of general and local knowledge, skill, training, experience and proficiency in one or both of the official languages of Canada;

(g)respecting skill and knowledge examinations, medical examinations, apprenticeship, the provision of documents and recommendations and other means of determining whether an individual meets the qualifications required under paragraph (f);

(h)respecting the conditions of a licence or pilotage certificate or the conditions of any class of licence or pilotage certificate;

(i)limiting the number of licences or classes of licences that may be issued for a compulsory pilotage area;

(j)respecting the information to be provided and the procedures and practices to be followed by a ship that is about to enter, leave or proceed within a compulsory pilotage area;

(k)respecting the minimum number of licensed pilots or pilotage certificate holders that are required to be on board a ship at any time and which class of licence or pilotage certificate that they are required to hold;

(l)respecting additional training and periodic medical examinations for licensed pilots and pilotage certificate holders;

(m)respecting risk assessments;

(n)respecting the development and implementation of management systems by the Authorities; and

(o)respecting fees and charges to be paid in relation to the administration of this Act, including the development of regulations, and the enforcement of this Act.

(2)With respect to Canadian waters that are contiguous with waters of the United States, the regulations may set out the conditions under which

(a)an individual who is authorized to have the conduct of a ship by an appropriate authority of the United States may pilot in Canadian waters; and

(b)a licensed pilot or pilotage certificate holder may have the conduct of a ship in waters of the United States.

(3)Regulations referred to in paragraph (1)(l) may distinguish between licensed pilots and between pilotage certificate holders on the basis of the class of licence or pilotage certificate they hold.

52.1Exemption orders#

(1)The Minister may, by order, exempt for a period of not more than three years any person or ship from the application of any provision of this Act or the regulations, subject to any conditions that the Minister considers appropriate, if the exemption would allow the undertaking of research and development, including in respect of any type of ships, technologies, systems, components or procedures and practices that may, in the Minister’s opinion, enhance marine safety or environmental protection.

(2)Every person or ship subject to a condition of the exemption order shall comply with that condition.

(3)The Minister shall, as soon as feasible after making an exemption order, publish a notice of it on a Government of Canada website or by any other means that the Minister considers appropriate.

^note

52.2Interim orders#

(1)The Minister may make an interim order that contains any provision that may be contained in a regulation made under this Act if the Minister believes that immediate action is required to deal with an urgent issue related to the provision of pilotage services that poses a significant risk to safety, human health or the environment.

(2)The interim order has effect from the time that it is made but ceases to have effect on the earliest of

(a)the day on which it is repealed,

(b)the day on which a regulation made under this Act that has the same effect as the interim order comes into force,

(c)one year after the day on which it is made or any shorter period that may be specified in it, unless it is extended by the Governor in Council, and

(d)the day that is specified in the order of the Governor in Council, if the Governor in Council extends the interim order.

(3)The Governor in Council may extend the interim order for a period of no more than two years after the end of the applicable period referred to in paragraph (2)(c).

(4)If an interim order is extended by the Governor in Council, the Minister is not authorized to remake the interim order after it ceases to have effect.

(5)Every person or ship subject to an interim order shall comply with it.

(6)No person or ship may be convicted of an offence or found liable for a violation consisting of a contravention of an interim order that, at the time of the alleged contravention, had not been published in the Canada Gazette unless it is proved that, at the time of the alleged contravention, the person or ship had been notified of the interim order or reasonable steps had been taken to bring the purport of the interim order to the notice of those persons or ships likely to be affected by it.

(7)An interim order is to be published in the Canada Gazette within 23 days after it is made.

(8)The Minister shall ensure that a copy of each interim order is tabled in each House of Parliament within 15 days after it is made. It is to be sent to the Clerk of the House if the House is not sitting.

^note

52.3Direction to licensed pilot or pilot corporation#

(1)The Minister may, in writing, direct a licensed pilot or pilot corporation

(a)to cease an activity that poses a risk to the safety of navigation, including the safety of the public and marine personnel, or to human health, property or the environment; or

(b)to conduct an activity that protects the safety of navigation, including the safety of the public and marine personnel, or that protects human health, property or the environment.

(2)The Minister is not authorized to make the direction unless the Minister is satisfied that the direction is necessary to deal with exceptional circumstances that involve a risk to the safety of navigation, including the safety of the public and marine personnel, or to human health, property or the environment.

(3)The direction is valid for the period specified in it as long as that period ends no more than 30 days after the day on which it is made.

^note

52.4Incorporation by reference#

The limitation set out in paragraph 18.1(2)(a) of the Statutory Instruments Act, to the effect that a document is to be incorporated as it exists on a particular date, does not apply to any power to make regulations under this Act.^note

52.5Statutory Instruments Act#

The following are not statutory instruments for the purposes of the Statutory Instruments Act:

(a)a resolution made under section 33;

(a.1)a direction given under subsection 46.12(2), (3) or (4);

(b)a detention order made under section 46.2;

(c)a direction given under subsection 46.22(1);

(d)an exemption order made under section 52.1;

(e)an interim order made under section 52.2; and

(f)a direction given under section 52.3.

^note

Review of Act

53Ten-year review#

(1)The Minister shall, 10 years after the day on which this subsection comes into force and every 10 years after that, undertake a review of the operation of this Act.

(2)The Minister may appoint one or more persons to undertake or assist in the review.

^note