Bill C-62: An Act to amend the Motor Vehicle Safety Act and to make a consequential amendment to another Act

C-62 Second Session, Forty-first Parliament, 62-63-64 Elizabeth II, 2013-2014-2015 HOUSE OF COMMONS OF CANADA BILL C-62 An Act to amend the Motor Vehicle Safety Act and to make a consequential amendment to another Act first reading, June 3, 2015 MINISTER OF TRANSPORT 90771 SUMMARY This enactment amends the Motor Vehicle Safety Act for the purpose of strengthening the enforcement and compliance regime to further protect the safety of Canadians. It provides the Minister of Transport with the authority to order companies to correct a defect or non-compliance. The enactment also makes a consequential amendment to the Transportation Appeal Tribunal of Canada Act. Available on the Parliament of Canada Web Site at the following address:http://www.parl.gc.ca 2nd Session, 41st Parliament, 62-63-64 Elizabeth II, 2013-2014-2015 house of commons of canada BILL C-62 An Act to amend the Motor Vehicle Safety Act and to make a consequential amendment to another Act Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: SHORT TITLE Short title 1. This Act may be cited as the Safer Vehicles for Canadians Act. 1993, c. 16 MOTOR VEHICLE SAFETY ACT 2. Section 2 of the Motor Vehicle Safety Act is amended by adding the following in alphabetical order: “Tribunal”« Tribunal » “Tribunal” means the Transportation Appeal Tribunal of Canada established by subsection 2(1) of the Transportation Appeal Tribunal of Canada Act; 3. The Act is amended by adding the following after section 2: CONTACT PERSON Contact person 2.1 A company of a prescribed class that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports into Canada any vehicle or equipment of a class for which standards are prescribed is required to provide the Minister, for the purpose of verifying compliance with this Act, with the contact information for a person for the purpose of correspondence. 4. Section 5 of the Act is amended by adding the following after subsection (1): Compliance by companies of prescribed class (2) No company of a prescribed class shall apply a national safety mark to any vehicle or equipment, sell any vehicle or equipment to which a national safety mark has been applied or import into Canada any vehicle or equipment of a class for which standards are prescribed unless the company acquires and maintains, as provided for in the regulations and in relation to a vehicle or equipment that is substantially similar to that vehicle or equipment, records related to (a) foreign incidents causing death or injury that have been identified in a legal claim against the manufacturer that alleges that the death or injury was caused by a defect or non-compliance; (b) foreign recalls of vehicles or equipment; and (c) internal investigations respecting defects or non-compliances that have been conducted outside Canada by or communicated to the manufacturer or a corporation designated for that purpose by the Minister. Provision of records (2.1) The company shall provide, in the manner that the Minister specifies, the records referred to in paragraphs (2)(a) and (c) to the Minister on the Minister’s request. Copy of records (2.2) The company shall provide the prescribed information related to foreign recalls referred to in paragraph (2)(b) to the Minister in the time and manner prescribed by the regulations. Regulations (2.3) The Governor in Council may make regulations defining, for the purposes of subsection (2), any term used in it. 2014, c. 20, s. 218 5. Section 8 of the Act is replaced by the following: Analytical aids 8. A company that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports any vehicle or equipment of a class for which standards are prescribed shall, on the Minister’s request, provide the Minister with the means to retrieve or analyze information created or recorded by the vehicle or equipment. Power to order tests, analyses or studies 8.1 (1) The Minister may, by order, require any company that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports any vehicle or equipment of a class for which standards are prescribed to (a) conduct tests, analyses or studies on the vehicle or equipment in order to obtain information related to defects or collisions, or to verify compliance with this Act, that the Minister considers necessary; and (b) provide the results to the Minister in the time and manner that the Minister specifies. Statutory Instruments Act (2) The Statutory Instruments Act does not apply to an order made under subsection (1). 2014, c. 20, s. 220 6. The heading before section 10 of the Act is replaced by the following: NOTICE OF DEFECT AND OF NON-COMPLIANCE AND ORDERS 2014, c. 20, s. 222 7. Subsection 10.1(7) of the English version of the Act is replaced by the following: Power to order (7) The Minister may, by order, require any company that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports any vehicle or equipment of a class for which standards are prescribed to give a notice of non-compliance in the manner specified in the order, if the Minister considers that it is in the interest of safety. 2014, c. 20, s. 222 8. Section 10.3 of the Act is replaced by the following: Make information available 10.3 A company of a prescribed class that gives notice to the Minister in respect of a vehicle shall, as provided for in regulations, make information available for the vehicle in respect of which the notice was given. Correction date 10.4 (1) The notice given by the company under paragraph 10(1)(b) or 10.1(1)(b) shall specify the earliest date by which the parts and facilities that are necessary to correct a defect or non-compliance are expected to be available. Notice (2) Despite subsection (1), if the company cannot reasonably specify the earliest date at the time the notice is sent, the company shall send the notice without that date. The company shall send a subsequent notice that provides the earliest date as soon as it has been determined. Copy for Minister (3) The company shall immediately provide the Minister with a copy of the notice referred to in subsections (1) and (2). Power to require information (4) The Minister may, by order, require a company to provide, in the manner and within the period specified in the order, any information or documents that the Minister considers necessary for verifying that the date specified by the company under subsections (1) and (2) is the earliest date by which the parts and facilities that are necessary to correct a defect or non-compliance are expected to be available. Power to order correction of defect or non-compliance 10.5 The Minister may, by order, require any company that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports any vehicle or equipment of a class for which standards are prescribed to correct a defect or non-compliance, in accordance with any terms and conditions specified in the order, if a notice of defect or non-compliance has been given and the Minister considers that it is in the interest of safety. Correction 10.51 A company that is subject to an order made under section 10.5 may correct a defect or non-compliance (a) by repairing the vehicle or equipment, including by adding to, removing from or modifying the vehicle or equipment, as the circumstances require; (b) by replacing the vehicle or equipment with a reasonable equivalent; or (c) by reimbursing (i) the cost of repairs to the vehicle or equipment that have already been undertaken, or (ii) the sale price of the vehicle or equipment, less reasonable depreciation. Power to order payment of costs 10.6 The Minister may, by order, require any company that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports any vehicle or equipment of a class for which standards are prescribed to pay the costs of correcting a defect or non-compliance, in accordance with any terms and conditions specified in the order, if a notice of defect or non-compliance has been given. Power to prohibit offering for sale — defect or non-compliance 10.61 The Minister may, by order, require a company to ensure that any defect or non-compliance in a vehicle or equipment is corrected before the vehicle is offered for sale to the first retail purchaser, in accordance with any terms and conditions specified in the order. Process 10.7 (1) For the purposes of subsections 10(4) and 10.1(7) and sections 10.5 to 10.61, the Minister shall, before issuing any order, (a) make a preliminary determination, on the basis of testing, analysis, inspection, examination or research that the Minister considers appropriate and in consultation with the company, that an order is necessary in the interest of safety; (b) notify the company of the preliminary determination, including the rationale on which it is based, and invite the company to provide information in writing, in the time and manner specified by the Minister; and (c) publish a notice of preliminary determination and invite any interested party to make comments in writing, within the time that the Minister specifies. Decision (2) The Minister shall not make a final decision that an order is necessary unless the Minister has taken into account all relevant information. Notice to company and interested parties (3) After making a final decision, the Minister shall notify the company and interested parties of the decision and the rationale on which it is based. Power to vary or revoke order 10.8 The Minister may vary or revoke an order if new relevant information becomes available. Statutory Instruments Act 10.9 The Statutory Instruments Act does not apply to an order made under section 10.4, 10.5, 10.6 or 10.61. 9. Section 14 of the Act is amended by adding the following after subsection (1): Investigation — collisions (1.1) For greater certainty, the Minister may designate as a collision investigator any person that the Minister considers qualified, and that person may collect information with respect to an investigation of any motor vehicle collision. 2014, c. 20, s. 226 10. (1) The portion of subsection 15(1) of the Act before paragraph (c) is replaced by the following: Entry by inspector 15. (1) For the purpose of verifying compliance with this Act or identifying and analyzing defects or collisions, an inspector may at any reasonable time enter any place, other than a dwelling-house, in which the inspector believes on reasonable grounds there is (a) any vehicle or equipment of a class for which standards are prescribed; (b) any component that is used or intended to be used in the manufacture of a vehicle or equipment for which safety standards are prescribed; or (2) Subsections 15(2) and (3) of the Act are replaced by the following: Entry by inspector (1.1) In the discharge of their duties, an inspector and any person accompanying the inspector may enter on and pass through or over private property, other than a dwelling-house, without being liable for doing so and without any person having the right to object to that use of the property. Power to require attendance of persons (1.2) An inspector who enters a place may require the attendance of persons whom the inspector deems relevant to the carrying out of the inspector’s functions and may question those persons on matters related to the inspection. Search of premises (2) An inspector who enters a place under subsection (1) may examine any vehicle, equipment or component found there, may open any package or receptacle that the inspector believes on reasonable grounds contains any equipment or component referred to in that subsection and may disassemble and remove any constituent components. Production of documents (3) For the purpose of verifying compliance with this Act or identifying and analyzing defects or collisions, an inspector may on reasonable grounds require any person to produce for examination or reproduction all or part of any document or electronic data, including any books, records, reports, test data, shipping bills, or bills of lading. 11. Subsections 16(1) and (2) of the Act are replaced by the following: Assistance to inspectors 16. (1) Any person who owns or has charge of a place entered by an inspector under subsection 15(1) and every person present there shall answer all of the inspector’s reasonable questions related to the inspection, provide all reasonable assistance in their power to enable the inspector to carry out the inspector’s duties and shall furnish any information that the inspector reasonably requires for the purposes of the administration of this Act. Assistance to inspectors (1.1) Any person from whom documents or electronic data are requested under subsection 15(3) shall answer all reasonable questions and provide all reasonable assistance in their power to enable the inspector making the request to carry out the inspector’s duties and shall furnish any information that the inspector reasonably requires for the purposes of the administration of this Act. False statements (2) No person shall obstruct or hinder, or make any false or misleading statement either orally or in writing to, an inspector who is engaged in carrying out their functions. Due diligence defence (2.1) A person is not to be found guilty of an offence under subsection (2) if they establish that they exercised all due diligence to prevent the commission of the offence. 12. The Act is amended by adding the following after section 16: ADMINISTRATIVE MONETARY PENALTIES Regulations 16.1 The Governor in Council may, by regulation, (a) designate as a provision the contravention of which may be proceeded with as a violation in accordance with sections 16.13 to 16.23 of this Act, the regulations or any order made under this Act; (b) prescribe the maximum amount payable for each violation but not more than (i) $4,000, in the case of an individual, and (ii) $200,000, in the case of a company. Designation of enforcement officers 16.11 (1) The Minister may designate persons, or classes of persons, as enforcement officers. Certification of enforcement officers (2) Every person designated as an enforcement officer shall receive a certificate of designation attesting to their designation and shall, on demand, present the certificate to any person from whom the enforcement officer requests information in the course of the enforcement officer’s duties. Entry (3) For the purpose of determining whether a violation referred to in section 16.13 has been committed, an enforcement officer may at any reasonable time enter any place, other than a dwelling-house, in which the enforcement officer believes on reasonable grounds there is (a) any vehicle or equipment of a class for which standards are prescribed; (b) any component used or intended to be used in the manufacture of a vehicle or equipment for which safety standards are prescribed; or (c) any record referred to in paragraph 5(1)(g). Search of premises (4) An enforcement officer who enters a place under subsection (3) may examine any vehicle, equipment or component found there, may open any package or receptacle that the inspector believes on reasonable grounds contains any equipment or component referred to in that subsection and may disassemble and remove any constituent components. Production of documents (5) For the purpose of determining whether a violation referred to in section 16.13 has been committed, an enforcement officer may require any person to produce for examination or reproduction all or part of any document or electronic data that the enforcement officer believes on reasonable grounds contain any information relevant to that determination. Assistance to enforcement officers (6) Any person from whom documents or electronic data are requested under subsection (5) shall answer all of the enforcement officer’s reasonable questions, provide all reasonable assistance in their power to enable the enforcement officer making the request to carry out the enforcement officer’s duties and shall furnish any information that the enforcement officer reasonably requires for the purposes of the administration of this Act. Assistance to enforcement officers (7) Any person who owns or has charge of a place entered by an enforcement officer under subsection (3) and every person present there shall answer all of the enforcement officer’s reasonable questions, provide all reasonable assistance in their power to enable the en-forcement officer to carry out the enforce-ment officer’s duties and shall furnish any information that the enforcement officer reasonably requires for the purposes of the administration of this Act. Notices of violation 16.12 The Minister may establish the form and content of notices of violation. Violation 16.13 (1) Every person who contravenes a provision designated under paragraph 16.1(a) commits a violation and is liable to a penalty of not more than the maximum amount prescribed under paragraph 16.1(b). Continuing violation (2) 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. Clarification (3) If a contravention of a provision designated under paragraph 16.1(a) may be proceeded with as a violation or as an offence, proceeding with it in one manner precludes proceeding with it in the other. Nature of violation (4) For greater certainty, a violation is not an offence and, accordingly, section 126 of the Criminal Code does not apply in respect of a violation. Due diligence available (5) Due diligence is a defence in a proceeding in respect of a violation. Issuance of notice of violation 16.14 When an enforcement officer believes on reasonable grounds that a person has committed a violation, the enforcement officer may issue and serve on the person a notice of violation that names the person, identifies the violation and sets out (a) the penalty for the violation that the person is liable to pay; and (b) particulars concerning the time for and manner of paying the penalty and the procedure for requesting a review. Payment 16.15 (1) If a person who is served with a notice of violation pays the amount specified in the notice in accordance with the particulars set out in it, the Minister shall accept the amount as and in complete satisfaction of the amount of the penalty for the contravention and no further proceedings under this Act shall be taken against the person in respect of that contravention. Reduction in amount of penalty (2) The Minister may reduce the amount of the penalty if the Minister is of the opinion that it is in the public interest to do so. Request for review of determination 16.16 (1) A person served with a notice of violation that wishes to have the Minister’s decision regarding the facts of the alleged contravention or the amount of the penalty reviewed shall, within 30 days after the notice of violation is served — or within any further time that the Tribunal on application may allow — file a request for a review with the Tribunal. Time and place for review (2) On receipt of the request, the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing. Review procedure (3) The member of the Tribunal who is assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations. Burden of proof (4) The Minister has the burden of establishing that a person has committed a violation. Person not compelled to testify (5) A person who is alleged to have committed a violation is not required to give evidence. Failure to pay penalty deemed contravention 16.17 A person who fails to pay the amount of the penalty specified in a notice of violation within the specified time and who does not file a request for a review is deemed to have committed the contravention alleged in the notice. Determination by Tribunal member 16.18 At the conclusion of a review, the member of the Tribunal who conducts the review shall without delay inform the Minister and the person who is alleged to have committed a violation (a) that the person has not committed a violation, in which case, subject to section 16.19, no further proceedings under this Act shall be taken against the person in respect of the alleged violation; or (b) that the person has committed a violation and, subject to any regulations made under paragraph 16.1(b), of the amount determined by the member to be payable to the Tribunal by or on behalf of the person and the time within which it must be paid. Right of appeal 16.19 (1) Within 30 days after a determination is made under section 16.18, the Minister or the person to whom it applies may appeal the determination to the Tribunal. Loss of right of appeal (2) A party who does not appear at a review hearing is not entitled to appeal the determination, unless the party establishes that there was sufficient reason to justify their absence. Disposition of appeal (3) The appeal panel of the Tribunal that is assigned to hear an appeal may dismiss it or allow it and, in allowing the appeal, the panel may substitute its decision for the determination. Finding of violation (4) If the appeal panel finds that a person has committed a violation, the panel shall immediately inform the person and the Minister of the finding and, subject to any regulations made under paragraph 16.1(b), of the amount determined by the panel to be payable to the Tribunal by or on behalf of the person in respect of the violation and the time within which it must be paid. Finding of no violation (5) If the appeal panel finds that a person has not committed a violation, the panel shall immediately inform the person and the Minister of the finding. Certificate 16.2 The Minister may obtain from the Tribunal or the member, as the case may be, a certificate in the form established by the Governor in Council setting out the amount of the penalty required to be paid by a person who fails, within the time required, (a) to pay the amount of a penalty set out in a notice of violation or to file a request for a review under section 16.16; (b) to pay an amount determined under paragraph 16.18(b) or to file an appeal under section 16.19; or (c) to pay an amount determined under subsection 16.19(4). Registration of certificate 16.21 (1) On production in any superior court, a certificate issued under section 16.2 shall be registered in the court and, when so registered, a certificate has the same force and effect, and proceedings may be taken in connection with it, as if it were a judgment in that court obtained by Her Majesty in right of Canada against the person who is named in the certificate for a debt of the amount set out in the certificate. Recovery of costs and charges (2) All reasonable costs and charges attendant on the registration of the certificate are recoverable in the same manner as if they had been certified and the certificate had been registered under subsection (1). Amounts received deemed public money (3) An amount received by the Minister or the Tribunal under this section is deemed to be public money within the meaning of the Financial Administration Act. Time limit for proceedings 16.22 Proceedings in respect of a violation may not be instituted later than two years after the time when the subject matter of the proceedings arose. Notations removed 16.23 (1) Unless the Minister is of the opinion that it is not in the public interest to do so, five years after the person pays every penalty that the person is liable to pay, the Minister shall remove a notation from the records of notices of violation under section 16.13. Duty to notify (2) The Minister shall give a person notice of a decision not to remove a notation in respect of the person and provide all relevant information concerning the grounds on which the Minister has refused to do so. Contents of notice (3) The notice shall include the place at which and the date that is 30 days after the notice is served by which a request for a review may be filed. Request for review (4) The person may, by the date specified in the notice or within any further time that the Tribunal on application may allow, file a written request for a review with the Tribunal. Time and place for review (5) On receipt of a request filed under subsection (4), the Tribunal shall appoint a time and place for the review and shall notify the Minister and the person who filed the request of the time and place in writing. Review procedure (6) The member of the Tribunal who is assigned to conduct the review shall provide the Minister and the person who filed the request with an opportunity that is consistent with procedural fairness and natural justice to present evidence and make representations. Determination (7) The member may confirm the Minister’s decision or refer the matter back to the Minister for reconsideration. Right of appeal (8) The person who requested the review may, within 30 days after a determination is made under subsection (7), appeal the determination to the Tribunal. Loss of right of appeal (9) A person who does not appear at the review hearing is not entitled to appeal the determination, unless the person establishes that there was sufficient reason to justify their absence. Disposition of appeal (10) The appeal panel of the Tribunal that is assigned to hear an appeal may dismiss it or refer the matter back to the Minister for reconsideration. 13. Section 17 of the Act is amended by adding the following after subsection (2): Continuing offence (2.1) An offence that is committed or continued on more than one day constitutes a separate offence for each day on which it is committed or continued. 14. The Act is amended by adding the following after section 19: FORFEITURE Forfeiture — conviction for offence 19.1 (1) If a person is convicted of an offence under this Act, the court may order that a seized vehicle, equipment or component by means of or in relation to which the offence was committed be forfeited to Her Majesty in right of Canada. Disposal (2) A seized vehicle, equipment or component that is forfeited may be stored and disposed of at the expense of its owner or the person who was entitled to possess it at the time of its seizure. Forfeiture — on consent 19.2 If the owner of a seized vehicle, equipment or component consents to its forfeiture, the seized vehicle, equipment or component is forfeited to Her Majesty in right of Canada and may be stored and disposed of at the owner’s expense. 2001, c. 29 CONSEQUENTIAL AMENDMENT TO THE TRANSPORTATION APPEAL TRIBUNAL OF CANADA ACT 2012, c. 31, s. 345 15. Subsection 2(3) of the Transportation Appeal Tribunal of Canada Act is replaced by the following: Jurisdiction in respect of other Acts (3) The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act, sections 129.01 to 129.19 of the Canada Marine Act, sections 16.1 to 16.23 of the Motor Vehicle Safety Act and sections 39.1 to 39.26 of the Navigation Protection Act. COMING INTO FORCE Order in council 16. Sections 4 and 12 come into force on a day to be fixed by order of the Governor in Council. Published under authority of the Speaker of the House of Commons Explanatory NotesMotor Vehicle Safety Act Clause 2: New. Clause 3: New. Clause 4: New. Clause 5: Existing text of section 8: 8. A company that applies a national safety mark to any vehicle or equipment or that imports any vehicle or equipment of a class for which standards are prescribed shall, on the Minister’ request, provide the Minister with the means to retrieve and analyse information created or recorded by the vehicle or equipment. Clause 6: Existing text of the heading: NOTICE OF SAFETY DEFECTS AND OF NON-COMPLIANCE Clause 7: Existing text of subsection 10.1(7): (7) The Minister may, by order, require any company that applies a national safety mark to any vehicle or equipment, sells any vehicle or equipment to which a national safety mark has been applied or imports any vehicle or equipment of a class for which standards are prescribed to give a notice of non-compliance in the manner specified by the Minister, if the Minister considers that it is in the interest of safety. Clause 8: Existing text of section 10.3: 10.3 A company that gives notice to the Minister in respect of a vehicle shall, as provided for in regulations, make information available for the vehicle in respect of which the notice was given. Clause 9: New. Clause 10: (1) Relevant portion of subsection 15(1): 15. (1) For the purpose of verifying compliance with this Act, an inspector may at any reasonable time enter any place in which the inspector believes on reasonable grounds there is (a) any vehicle or equipment of a class for which standards have been prescribed that is owned by, or is on the premises of, a company or a consignee of imported vehicles or imported equipment; (b) any component intended to be used in the manufacture of a vehicle or equipment for which safety standards have been prescribed; or (2) Existing text of subsections 15(2) and (3): (2) An inspector who enters a place pursuant to subsection (1) may examine any vehicle, equipment or component found there, and may open any package or receptacle in that place that the inspector believes on reasonable grounds contains any equipment or component referred to in that subsection. (3) An inspector may require any person to produce for examination any books, records, reports, test data, shipping bills, bills of lading or other documents or electronically stored data that the inspector believes on reasonable grounds contain any information relevant to the enforcement of this Act or to the identification or analysis of a defect referred to in subsection 10(1), and may make copies of or take extracts from any of them. Clause 11: Existing text of subsections 16(1) and (2): 16. (1) Any person who owns or has charge of a place entered by an inspector pursuant to subsection 15(1) and every person present there shall provide all reasonable assistance in their power to enable the inspector to carry out the inspector’s duties, and shall furnish such information as the inspector reasonably requires for purposes of the administration of this Act. (2) No person shall knowingly obstruct or hinder, or make any false or misleading statement either orally or in writing to, an inspector engaged in carrying out functions under this Act. Clause 12: New. Clause 13: New. Clause 14: New. Transportation Appeal Tribunal of Canada Act Clause 15: Existing text of subsection 2(3): (3) The Tribunal also has jurisdiction in respect of reviews and appeals in connection with administrative monetary penalties provided for under sections 177 to 181 of the Canada Transportation Act, sections 43 to 55 of the International Bridges and Tunnels Act, sections 129.01 to 129.19 of the Canada Marine Act and sections 39.1 to 39.26 of the Navigation Protection Act.