Policy on Compliance and Enforcement of the Canada Shipping Act, 2001
1. Policy Objectives
1.1 This Compliance and Enforcement Policy (CEP) sets out the compliance and enforcement responsibilities of Transport Canada Marine Safety (TCMS) for the safety of shipping and protection of the marine environment under the Canada Shipping Act, 2001 (CSA 2001).
1.2 TCMS has developed the CEP to enhance compliance within the marine community with respect to the requirements of the CSA 2001 and its regulations.
2. Policy Statement
2.1 Ship owners, operators, authorized representatives, masters and crew are obligated to operate their vessels in accordance with the applicable legislation. The role of TCMS is to encourage and promote compliance with the CSA 2001 and regulations, and to deal with non-compliance in an effective, expeditious and nationally consistent manner.
2.2 Vessel safety and environmental protection are the top priorities of TCMS and TCMS is committed to compliance and enforcement activities that:
- facilitates compliance;
- encourages clear, effective and timely communication with stakeholders;
- applies regulatory requirements in a fair, impartial and consistent manner;
- applies appropriate measures in response to non-compliance that are proportional to the seriousness of the offence; and
- respect the confidentiality of information obtained in the administration of the legislation by complying with Privacy and Access to Information legislation.
2.3 The CEP incorporates new legal instruments introduced by CSA 2001 that provide alternative modern administrative (non-criminal) framework for compliance and enforcement – in particular provisions for assurances of compliance and administrative monetary penalties as described in s 229. The CEP also conforms to the Federal Government policy for regulatory programs.
2.4 Establishing fair, consistent and transparent guidelines for addressing contraventions of the CSA 2001 and regulations is central to this policy.
2.5 The CEP also provides a systematic method of assessing the amount of a penalty within the ranges established by the Administrative Monetary Penalties Regulations. Also, for adjusting the amount of a penalty by 30% where there are mitigating or aggravating circumstances.
2.6 The CEP is composed of two policies that govern administrative actions and proceedings for statutory and regulatory offences: the Compliance Monitoring and Enforcement Response Policy and the Administrative Monetary Penalty/Canadian Maritime Document (AMP/CMD) Policy, which are jointly referred to as the CEP.
3. Compliance Monitoring and Enforcement Response Policy
3.1 Compliance Monitoring
3.1.1 TCMS will promote and monitor compliance in the following manner
3.1.2 TCMS policy is to foster the participation of all parties interested in marine safety so as to take advantage of their expertise in overseeing activities regulated by the CSA 2001. These parties include owners, operators, crew, Marine Safety Inspectors and other persons having an interest in vessel / crew safety and protection of the marine environment.
Marine Safety Inspector monitoring techniques and the frequency of inspection activities are to be based on risk assessment and take into account the following factors:
- results of initial, periodic or scheduled inspections;
- the safety record of the operator, owner or vessel;
- the seriousness of the safety and environmental consequences of any incident or potential incident;
- international agreements such as covered by Port State Control Memoranda.
3.2.1 With the authorization of TCMS, small commercial vessel operators have the option to develop their own system for monitoring marine safety and environmental protection. An approved self-inspection program will include:
- the operations covered by the authorization;
- the officers responsible for implementing the program;
- applicable regulatory requirements and commitments including the company‘s safety management system;
- provisions for addressing known safety and environmental hazards; and
- procedures for reporting on and responding to accidents and incidents.
3.3 Delegated inspections
3.3.1 Qualified Classification Societies can be delegated to inspect Canadian ships to ensure regulatory compliance with CSA 2001 and issue appropriate certificates on behalf of the Minister of Transport.
3.4 Enforcement Response
3.4.1 When TCMS learns of a possible contravention of the CSA 2001 or its regulations, an appropriate response action will be taken based on the nature and circumstances of the contravention.
3.4.2 The enforcement response will follow the established guidelines (Tier II) for timely and appropriate action. The enforcement response may include non-penalty actions (oral counselling /warning letter or Assurance of Compliance) or penalty actions (tickets, administrative monetary penalty, or vessel detention) or recommending criminal court proceedings.
3.4.3 TCMS will adhere to Government of Canada policy of graduated escalation of severity of enforcement responses. However, this is not to say that severe enforcement sanctions should not be imposed as the first response in serious cases. For exAMPle, circumstances may warrant instituting summary conviction proceedings, without consideration of the alternative of issuing a Notice of Violation.
3.4.4 When a person or vessel is found to be in contravention of the CSA 2001 or its regulations, TCMS will take an appropriate course of action, using the appropriate enforcement tool.
4. Non-penalty Enforcement Response
4.1 Verbal counselling or a warning letter should be used when an offender commits a minor, inadvertent contravention or where the imposition of a more serious sanction is not appropriate.
4.2 TCMS will assess all aspects of the contravention and take into account the attitude of the offender to determine whether oral counselling or a warning letter will ensure future compliance. Verbal counselling or warning letters are not to be used if the offender disputes committing the contravention.
5. Administrative Monetary Penalty/ Canadian Maritime Document (AMP/CMD) Policy
5.1 The Administrative Monetary Penalty (AMP) Program could be used for most statutory and regulatory non-compliances by commercial vessels. However, the issuance of tickets under the Contraventions Act and regulations, by designated police and provincial enforcement agencies, can be undertaken for provisions that cover offences related to small commercial vessels and pleasure crafts.
5.2 It is TCMS policy to ensure that the assessment of a particular administrative monetary penalty (AMP) is done in a fair, transparent, and consistent manner.
5.3 The goal of the AMP/CMD Policy is to ensure that:
- penalties are appropriate for the gravity of the violation;
- economic benefits for non-compliance are reduced or eliminated;
- penalties have a sufficient deterrent effect; and
- compliance is expeditiously achieved and maintained.
5.4 The amount of penalty will be assessed within the ranges set out for individual offences in the Administrative Monetary Penalties Regulations.
5.5 The following factors should be considered in assessing the appropriate amount within those ranges:
- compliance history and good faith efforts to rectify non-compliance;
- duration of the violation;
- economic benefits received as a result of the non-compliance;
- seriousness of the violation; and
- any other relevant factors.
5.6 As a rule, any adjustment to the assessed amount, as a result of any mitigating or aggravating circumstances, will not be more than 30 percent. Adjusted amounts below the minimum or above the maximum penalty set in the Administrative Monetary Penalties Regulations are not legally permitted.
5.7 Some mitigating and aggravating circumstances are:
- the risk of harm or actual harm caused by the violation;
- remedial action taken, or proposed to be taken, by the offender to mitigate the harm;
- whether the violation was deliberate or inadvertent;
- the incompetence, negligence or lack of concern of the offender; and
- precautions taken by the offender to avoid the violation.
5.8 An Assurance of Compliance (AC) is a binding agreement that includes the assessed amount of penalty and allows a person or vessel to come into compliance within a specified period of time without incurring any sanction.
5.8.1 ACs will be used where the person or vessel responsible for the deficiency accepts the terms of the agreement and is able to make the appropriate rectifications within the specified time period.
5.8.2 ACs will not be used if the person or vessel has a recent history of non-compliance, particularly a default under an AC, or if it would be unsafe for the vessel to get underway before the deficiency is rectified.
5.9 TCMS will assess an Administrative Monetary Penalty (AMP) by issuing a Notice of Violation (NOV) in cases where:
- an AC is inappropriate in the circumstances; or
- the issuance of an NOV is the appropriate enforcement response (e.g. serious circumstances, repeat violation, etc.)
5.10 The Minister may suspend, cancel or refuse to renew a Canadian maritime document (CMD) on various grounds. Where it is based on the grounds of contraventions, incompetence or acts of misconduct, the action shall be taken only in the most serious circumstances for Part 3 (Personnel) CMDs.
Persons affected by a CMD action or an AMP may request a review of the action by the Transportation Appeal Tribunal of Canada (TATC). An appeal of this review is available to all parties. The Minister will appeal a review determination only in cases of manifest error or where a reduction of marine safety may result.
For more information on the TATC, please visit the following link:
5.11 Enforcement Administration
5.11.1 A Designated Officer (DO) in each TCMS Region is responsible for the coordination of enforcement activity and for monitoring adherence to the CEP within that Region.
5.11.2 Appendix "A" illustrates the functioning of the enforcement administration.
5.11.3 A Marine Enforcement Management System (MEMS) is the database that will be used to capture all enforcement actions and to help ensure consistency of application of enforcement tools across the country.
6.1 The CEP will be used as a guide when dealing with any non-compliance issues and for assessing an appropriate enforcement action against an alleged offender.
6.2 The CEP is applicable to all contraventions of the CSA 2001 and its regulations, whether designated or not under the Administrative Monetary Penalty Regulations.
6.3 The CEP does not apply, however, to any activities under Part II of the Canada Labour Code.
6.4 The CEP does not alleviate the Marine Safety Inspector's obligation to use detention powers under the Act where warranted.
7.1 Under CSA 2001, the Minister of Transport has authority and powers to monitor compliance by the marine industry and to deal with acts of non-compliance with provisions of the Act and its regulations.
7.2 These authorities are found in CSA 2001, under sect. 244 (to make regulations on the recommendation of the Minister designating violations and fixing penalties); para. 20(1) (e) (to authorize enforcement action against a Canadian maritime document); sect. 11 (conferring powers of inspection to authorized persons or organizations); sect. 212 and 220 (providing for powers of search and seizure); sect. 222 and 227 (providing for powers to detain and/or direct vessels); and under sect. 229 (to enter into an assurance of compliance or to issue a notice of violation).
The CSA 2001 may be found at the following link: http://laws.justice.gc.ca/en/C-10.15/
7.3 Separate compliance and enforcement authorities from those in 7.2 are established under Parts 5, 7, 8, and 10 of CSA 2001.
8. Responsibility / Further Information
8.1 The Executive Director, Regulatory Services and Quality Assurance, is accountable for the development, implementation, maintenance, and continuous improvement of the CEP.
8.2 Regional Directors, in regard to CSA 2001 and its regulations, are responsible for compliance and enforcement activities in their respective regions and for the appointment of Designated Officers (DOs).
8.3 Marine Safety Inspectors are responsible for recommending and taking compliance and enforcement action in accordance with their statutory authorities, delegated powers and the CEP and its related procedures published by TCMS in the Compliance and Enforcement Manual.
8.4 Comments or queries related to the CEP and its application should be addressed to:
Regulatory Services and Quality Assurance (AMSX)
330 Sparks Street
Ottawa, ON, K1A 0N8
Tel: (613) 998-0600
Fax: (613) 991-5670
9. Related Documents
9.1 Canada Shipping Act, 2001
9.2 Compliance and Enforcement Manual
10. Date of Application
10.1 This policy (CEP) is effective the day that the Canada Shipping Act, 2001 and associated regulations under Part 11 come into force.
11. Date for Review or Expiry
11.1 This policy will be reviewed not later than 24 months after it comes into effect and on a five (5) year cycle thereafter.
12. RDIMS Reference
12.1 The English version of this document is saved in RDIMS under reference number 2152595. The applied naming convention is (PUBLICATION – TP 13585 – POLICY – TRANSPORT CANADA MARINE SAFETY POLICY ON COMPLIANCE AND ENFORCEMENT OF THE CANADA SHIPPING ACT, 2001).
12.2 La version française du présent document est dans le SGDDI et porte le numéro de référence 1880023. La règle d'affectation des noms est (PUBLICATION – TP 13585 – POLITIQUE – POLITIQUE DE CONFORMITÉ ET D'EXÉCUTION DE SÉCURITÉ MARITIME – TRANSPORTS CANADA À L'ÉGARD DE LA LOI DE 2001 SUR LA MARINE MARCHANDE DU CANADA).
12.3 This is the first approved and finalized revision of the English version of this document.
- assurance of compliance
- administrative monetary penalty
APPENDIX A - ENFORCEMENT FLOWCHART
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